Opinion
E065164
04-27-2017
THE PEOPLE, Plaintiff and Respondent, v. BRANDON TOLIVERT, Defendant and Appellant.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. RIF1500938 & RIF1404467) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed. Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
All further references are to the Penal Code unless otherwise specified.
During a five-year relationship with his girlfriend, defendant and appellant, Brandon Tolivert, engaged in ongoing violence and threats against her. A jury convicted defendant of 11 criminal offenses: counts 1 and 2, assault with a deadly weapon (§ 245, subd. (a)(1)); count 3, making criminal threats (§ 422); count 4, first degree burglary (§§ 459/460); count 5, stalking (§ 646.9, subd. (b)); counts 6 through 10, making criminal threats (§ 422); and count 13, violating a court order (§ 273.6, subd. (a).) The trial court sentenced defendant to an aggregate term of nine years eight months in state prison.
We refer to the two victims as "the victim" or J.W., who was defendant's girlfriend, and her friend, D.S., the victim in count 2.
As to count 3, defendant was also convicted of personally using a deadly weapon, a metal bat, within the meaning of sections 12022, subdivision (b), and 1192.7, subdivision (c)(23).
The trial court sentenced defendant to nine years eight months as follows: the principal count was count 4, the burglary, for which the court imposed the midterm of four years. The court then sentenced defendant to one consecutive year each on counts 1 and 2 (§ 245, subd. (a)(1), one-third of the midterm), eight months consecutive on count 3 (§ 422), one consecutive year on count 5 (§ 646.9, subd. (b)), and eight consecutive months on counts 6, 9 and 10 (§ 422). The court imposed a two-year sentence on both counts 7 and 8 (§ 422), but stayed them pursuant to section 654. It also stayed the section 12022, subdivision (b)(1), enhancement that was associated with count 3 because the same weapon was used to commit the crimes in counts 1 and 2. --------
On appeal, defendant challenges various aspects of his sentence. He contends the court should not have imposed consecutive sentences on counts 1 and 3—assault with a deadly weapon and making criminal threats—and that his sentence on count 5 for stalking should have been stayed. As for counts 7 through 10, he argues his convictions should be reversed or, in the alternative, the court should have stayed the convictions on counts 6 through 10 for making criminal threats.
We conclude the court properly sentenced defendant for multiple crimes committed at different times with different intents. We affirm the judgment.
II
THE TRIAL
Defendant and J.W. dated intermittently for about five years, starting when she was in high school. The victim gave birth to defendant's child in January 2012. Defendant's present crimes occurred in August and December 2014. However, many other incidents of domestic violence occurred during the relationship between defendant and the victim.
Uncharged Domestic Violence
The victim testified that defendant had abused her as many as 50 times. Several acts of domestic violence included when the victim was pregnant and defendant struck her with a table lamp. During an argument, the victim fell into a hole, broke her leg, and defendant dissuaded her from telling anyone at the hospital what happened. Shortly after the baby was born, defendant tried to push her off a hill, while hitting and threatening her. Another time defendant hit her with his fists. Once he followed her with his car while she was walking to a friend's house and they fought physically inside the car.
In March 2013, the victim had bruising on her cheek caused by defendant and the police arrested him. A few days later, defendant had a knife and the police were called again. In June 2013, defendant broke the victim's bedroom window and threatened to kill her. In spite of a protective order, defendant threatened the victim when she was in her car in a parking lot in 2013.
Another incident occurred in August 2014 when the victim and her friend were visiting her mother. While the victim and her friend were talking outside the house, defendant confronted them, angry because she had not responded to his phone calls or texts. Defendant began fighting with her, ripping off her clothes, pulling her hair, and hitting her.
In another incident on December 17, 2014, defendant and the victim argued at 4:00 a.m. and she broke his computer. After defendant put his hands around her throat, the police were called. Counts 1, 2 and 3
On August 15, 2014, the victim and her friend, D.S., were walking together when defendant drove up, retrieved a baseball bat out of the trunk, and started chasing the two women, swinging the bat and vowing to kill them. Defendant hit the victim on her legs and her friend on the back. The victim testified she was afraid and believed defendant could execute his threat. The two women ran into the victim's mother's house, locking the door behind them.
Count 4
J.W. lived at a house owned by an acquaintance from the fall of 2014 until February 2015. Defendant stayed there intermittently. After defendant and J.W. fought at 4:00 a.m. and the police were called, the owner of the house told defendant he could not stay there. After defendant removed his personal property, he returned and angrily confronted the owner. He left the front porch but tried to break in through the victim's bedroom window. The owner stopped him and told him to leave. Counts 5-10, 13
Defendant began trying to contact J.W. constantly. He texted, called, and left voice mail messages threatening her life. Defendant threatened the victim several times over the phone when they were talking. In addition, he left many threatening profane voice mail messages and sent many text messages.
The victim testified the messages were threatening and she believed defendant could hurt her. She was afraid and wanted to leave California to escape defendant. When she heard the words "blood" and "west side Pirus" on one of the voice mail messages, she was scared defendant would recruit someone to hurt her. In May 2014, defendant had sent her a photo of himself holding a gun, with a text message stating he was going to hurt her. She interpreted the message as a threat to her life. On December 23, 2014, the victim contacted the police.
Expert Testimony
Detective Vaughan testified as a domestic violence expert regarding the "cycle of violence" and the various forms of behaviors that are typical in an abusive domestic relationship. Vaughan was asked to consider a hypothetical situation in which a victim and an abuser have a child, there are multiple instances of abuse, the victim is isolated from friends and family, and the abuser continually threatens to kill or harm the victim. Vaughan opined the abuser is the type of person who might track down and kill his victim.
Defense Evidence
Defendant admitted he argued with the victim and would "get physical" but he denied hitting her with a lamp. He remembered when she fell and broke her leg, and he took her to the hospital and told her not to reveal that they had been arguing. Defendant denied threatening to push the victim off a hill.
Defendant testified about an argument in March 2013 while he was driving. The baby was in the car and the victim threw defendant's possessions and his money out the window. Defendant admitted his previous conviction from March 2013 and that there was a protective order in place. He admitted the incident five days later involving a knife, and a second, three-year protective order ordered in favor of the victim. Defendant agreed he was arrested three months later in June 2013 after he broke a window of the house where they were living. Defendant pleaded guilty to violating a court order prohibiting him from disturbing the peace of the victim.
Defendant continued to date the victim but they continued to fight and sometimes he was angry enough to want to harm her. He threatened her in the car in the parking lot in October 2013. He was convicted again in January 2014 for violating a court order prohibiting him from disturbing the peace of the victim. Defendant denied sending the victim a text of himself holding a gun.
Defendant admitted assaulting the victim and her friend with a bat and trying to scare them in August 2014. Defendant and the victim reconciled and lived together until December 17, 2014, when she broke his laptop computer and attacked him, and he left with some of his possessions.
On December 19, 2014, the owner would not admit him. Defendant tried to enter the house through a window but the owner stopped him and told him to leave. Defendant sent multiple text and voice messages to the victim intending to harass, threaten, and scare her because he was angry about the laptop incident.
Stipulated Evidence
The parties stipulated: 1) defendant committed an act of domestic violence against the victim on March 16, 2013; he pleaded guilty to a misdemeanor violation of 273.5, subdivision (a); and on March 20, 2013, he was personally served with a criminal protective order naming the victim as the protected party, valid until March 20, 2016; 2) defendant was arrested again for violating a restraining order against the victim on March 25, 2013; he pleaded guilty to a misdemeanor violation of disturbing the peace, and as part of the plea was served with a criminal protective order on March 27, 2013, naming the victim as the protected person, valid until March 27, 2016; 3) defendant was arrested for vandalism and violation of a restraining order against the victim on June 23, 2013, and he pleaded guilty to a misdemeanor violation of disobeying a court order; and 4) defendant was arrested for violating a restraining order against the victim on October 30, 2013, and pleaded guilty to a misdemeanor violation of willfully violating a protective order. It was further stipulated that during the 911 call on December 17, 2014, there was no report of the victim of being choked or strangled, and no police reports were filed relating to the incident.
III
COUNTS 7 THROUGH 10
Defendant was charged and convicted of five counts of making criminal threats on or about December 21, 2014 (counts 6-10). The prosecution elected to base counts 6, 7 and 8 on the three occasions in which the victim answered her phone and defendant threatened her; count 9 was based on the four voice mail messages, which the victim listened to at the same time; and count 10 was based on the many text messages the victim retrieved at the same time as the voice mail messages. As for the voice mail and text messages, the victim testified that when she retrieved them she was afraid for her safety.
Defendant contends he can only be convicted of committing one criminal threat because his multiple threats were a continuing course of conduct and counts 7 through 10 must be reversed. Alternatively, he argues that counts 9 and 10 must be reversed because the voice mail and text messages were a single threat that the victim received at the same time. We conclude defendant's communications to the victim were separate threats, causing her sustained fear. Defendant was properly convicted on counts 7 through 10.
To prove a violation of section 422, the prosecution must prove "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death of great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Defendant violated section 422 by threatening the victim multiple times and by several different means. Defendant relies on People v. Wilson (2015) 234 Cal.App.4th 193, to argue that the victim experienced only a single episode of sustained fear. However, the defendant in Wilson was convicted of two counts of making criminal threats, committed during a single 15-minute incident in which the defendant continuously menaced the victim and (at least) twice threatened to kill the victim and his family. (Id. at p. 195.) The defendant argued that he should have been convicted of one, not two, crimes of criminal threat. (Id. at p. 198.) The appellate court held that section 422 prohibits multiple convictions based on multiple threats toward a single victim during a single uninterrupted encounter and depends on the recipient of the threat suffering "sustained fear" as a result of the communication. (Wilson, at p. 201.)
The circumstance here was not a brief, uninterrupted, continuing, or single encounter. Defendant made three separate telephone calls, each time threatening the victim with a new criminal threat and causing sustained fear. The court sentenced defendant on count 6 and stayed the sentences on counts 7 and 8. In addition to the direct telephone calls, defendant left four separate voice messages over several hours, and numerous successive text messages, which were different threats communicated by a different medium. The content of the messages differed. The ongoing threats caused the victim multiple instances of sustained fear—conduct much more serious than a single threat during a single episode.
Defendant alternatively argues that he cannot be convicted of counts 9 and 10, because the text messages and voice messages were received at the same time when the victim connected her phone to the computer to listen to the voice messages and read the text messages. All these threatening messages were delivered over a period of hours or days. Unlike in Wilson, it was not a "single uninterrupted encounter." Thus, defendant was properly convicted of counts 7 through 10.
IV
SECTION 654
Defendant contends that he cannot be separately punished under section 654 for assaulting the victim with a baseball bat (count 1) and making a criminal threat (count 3) because the crimes occurred at the same time with the same objective. We disagree. Defendant's intent to assault the victim with a bat was different than the criminal intent of threatening the victim to create sustained fear of death or injury. Defendant also argues he cannot be sentenced for both stalking (count 5) and burglary (count 4) because those crimes occurred pursuant to a single objective and intent. Again, the stalking, which occurred over a three-day period, had a different intent than the burglary, which was to enter the victim's residence to commit a felony. Third, defendant argues that he should not have been sentenced on counts 6, 9 and 10, making criminal threats, because they were part of the continuous course of conduct for stalking. Defendant's three types of threats were only part of the behavior that constituted stalking, which also involved physical assault and burglary. The court properly sentenced defendant on all counts.
Penal Code section 654 precludes punishment for two offenses arising from the same act. Section 654 applies not only where there is one act, but also where a course of conduct violates more than one statute. Whether conduct is divisible depends upon the intent and objective of the defendant. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) However, even where the violations share common acts or are parts of an otherwise indivisible course of conduct, the defendant may be punished for multiple violations if the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other. (People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Beamon (1973) 8 Cal.3d 625, 638-639; People v. Kwok (1998) 63 Cal.App.4th 1236, 1252-1253.)
On appeal, the trial court's express and implied findings are entitled to deference. Whether a course of criminal conduct violating more than one penal statute constitutes a divisible course of action and whether the violations were committed with separate criminal intents or objectives are ordinarily questions of fact for the trial court, whose express or implied findings will be upheld if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.) The trial court's determination must be reviewed in the light most favorable to the respondent, presuming the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Counts 1 and 3
In count 1, defendant assaulted J.W. by chasing her with a baseball bat and swinging it at her, and in count 3, he threatened to kill her and D.S. as he swung the bat. The intent of the assault with a deadly weapon was to inflict immediate physical injury and the intent of the criminal threat was to put the victim in sustained fear of her life—different criminal objectives. In People v. Solis (2001) 90 Cal.App.4th 1002, 1022, the defendant made a similar argument in a case in which the defendant left threatening messages on his girlfriend's answering machine, and then an hour later came to her house and set it on fire. On appeal, the defendant argued that "the arson and two counts of making terrorist threats[] were committed pursuant to the same objective of threatening and scaring [the victim] so that it was improper to sentence him on all of them." (Ibid.) The court held that the crimes were divisible, and had distinct objectives and section 654 was not violated by sentencing defendant on both the arson and terrorist threat convictions.
The present case differs from People v. Latimer, supra, where the California Supreme Court held a defendant could not be sentenced for both a kidnapping and a rape where the kidnap was for the purpose of driving the victim to rape her. In Latimer, kidnapping the victim was for the purpose of driving her to a location to rape her. Here, defendant's threats to the victim's life were meant to frighten her and put her in sustained fear rather than to assault her. The trial court found defendant had different intents and objectives and properly sentenced defendant on counts 1 and 3.
Counts 4 and 5
Defendant's stalking conviction, count 5, was for conduct occurring during three days when a restraining order was in effect between December 19 and 21. Count 4, the burglary, occurred on December 21. Defendant contends he cannot be sentenced on both counts because the stalking was part of the burglary.
Burglary is the entry into a house or other structure with the intent to commit a felony. (People v. Centers (1999) 73 Cal.App.4th 84, 98.) Stalking occurs when a person "willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety or his or her immediate family." (§ 646.9, subd. (a).) According to the statutes, there are different objectives and intents for burglary and stalking—for burglary it is to commit a felony, and for stalking the intent is to place the victim in reasonable fear for her safety. The jury necessarily must have found different intents. Furthermore, stalking is a crime that involves a course of conduct. The statute defines "course of conduct" as "two or more acts occurring over a period of time, however short, evidencing a continuity of purpose." (§ 646.9, subd. (f); People v. Chilelli (2014) 225 Cal.App.4th 581, 586.) Defendant committed a burglary on the third day of his stalking but burglary was still a separate crime with a separate intent, even though it was also part of the course of conduct constituting stalking. The objective of the burglary was to commit a separate felony—either domestic violence, criminal threats or stalking. Therefore, the trial court properly sentenced defendant to separate terms on counts 4 and 5. Counts 6, 9, and 10
Defendant next asserts he cannot be separately sentenced for counts 6, 9 and 10. Again he argues the separate crimes constituted one continuous course of conduct. Therefore he cannot be separately punished for the criminal threats and for stalking. As the threatening conduct was only part of the behavior that constituted stalking, and there were separate objectives and intents for the criminal threats and the stalking, defendant was properly sentenced on counts 6, 9 and 10.
Defendant was convicted of stalking between December 19 and 21, when a restraining order was in effect. The victim retrieved the threats on December 21, 2014. While the threats constituted part of the harassment, the crimes have different objectives and occurred over different time periods. The stalking occurred over a number of days and involved defendant "popping up at weird times. And he would pop up at night, or day, an afternoon, out of the blue." Defendant's threats occurred when defendant texted and called the victim, threatening her on the phone, in voice mails and in text messages. His intent was to place her in reasonable fear for her safety. (§§ 422 and 646.9, subd. (a).)
In People v. Felix (2001) 92 Cal.App.4th 905, 915, the defendant argued he could not be separately punished for two criminal threats made on the same day that were made at different times and places. The court explained that "multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm. [Citations.] 'Separate sentencing is permitted for offenses that are divisible in time . . . .' [Citation.]" Similarly, here, the trial court reasonably concluded that defendant harbored multiple objectives. The threats were singular acts intended to cause fear in the victim at the time they were made. The stalking, on the other hand, involved repeated acts intended to create an environment of prolonged fear from the repetitive nature of those acts.
Defendant relies on People v. Mendoza (1997) 59 Cal.App.4th 1333, in which the court held that the defendant could not be sentenced for making a criminal threat and dissuading a witness. Mendoza is distinguishable. The two convictions arose from a single act, and the primary objective was for the defendant to help his brother by dissuading a witness from testifying against him. (Id. at p. 1346.) By contrast, here, the stalking occurred over three days and had a different objective. The trial court did not abuse its discretion in imposing separate sentences for the stalking and the criminal threats, and properly punished defendant for all his conduct.
V
DISPOSITION
We reject defendant's challenges to his sentences on counts 1, 3, and 5 through 10. We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORT
CODRINGTON
J. We concur: HOLLENHORST
Acting P. J. SLOUGH
J.