Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 203934
Pollak, J.
For approximately one month in December 2005, defendant Christopher Casarez dated E.M., a woman whom he met at work. In January 2006, E.M. ended the nascent relationship. Although she made it unambiguously clear that she no longer wished to have any contact with defendant, he embarked on a near-constant campaign of lengthy, rambling telephone calls, email and text messages in which he begged, cajoled and insulted E.M., as well as threatened to kill himself. He also surreptitiously observed E.M.’s activities and left messages and other things on her car and at her home. Defendant continued to contact E.M. in this manner for well over a year. In April 2007, E.M. moved to a new home and attempted to conceal her new address from defendant, but soon after found him waiting there after work. In May 2007, she obtained a restraining order. Defendant’s unwanted contacts stopped for several months, but in September 2007 he resumed contacting E.M. and waiting for her in front of her house. Defendant was arrested and charged with stalking and violating a restraining order.
Defendant now appeals from his conviction for two counts of stalking and two counts of violating a protective order. He contends that there was insufficient evidence to support the stalking convictions and that the trial court erred in admitting certain police statements. We conclude that these arguments are without merit. Defendant also has not shown that he received ineffective assistance of counsel during plea negotiations as alleged in his related petition for habeas corpus. We do conclude, however, that the trial court erred in sentencing defendant to concurrent terms on the two counts of violating a protective order; sentences on those counts should have been stayed under Penal Code section 654. Therefore, the judgment must be amended in that respect but we shall otherwise affirm the judgment.
Background
Because defendant argues that there was insufficient evidence to support his convictions for stalking, the testimony regarding his interactions with E.M. are set forth in considerable detail. E.M. testified that in August 2005 she was working as a consultant to Cal Trans on the Bay Bridge seismic retrofit project. In November 2005, she received an email from defendant asking, “Are you the E[.] that works with Margina at the west approach field office?” She replied that she was, and defendant “replied with a lengthy response introducing himself, saying that he had seen me working often late nights in the San Francisco office, and that he wanted to introduce himself to me, and that he wanted to date.” When E.M. did not respond defendant called her at work one night. They talked and she told him that she was uncomfortable starting a dating relationship at work, but that she would be “willing to get to know each other as friends.” They met at a bar and talked for “a couple hours.” A week later they went out again, and in early December they began to date.
In addition to the facts set forth in our lengthy recitation, there was evidence that defendant made numerous additional unwanted contacts with E.M.
After a few weeks, E.M. began to notice things about defendant that disturbed her, “like mood swings and trouble sleeping.... [H]e had talked about his own depression. He had talked about mental illness that ran in his family, and that he felt that he could be suffering from the same thing.... [A]t first it was endearing how attentive he was, and then after a while it was... definitely concerning. It was... past attentive; it was very possessive.” At one point defendant “pointed to his bedroom closet and told me that he kept a gun there.” He also showed her a crowbar that he kept in his car, explaining that he carried it for defense.
E.M. ended the relationship in the first few days of January 2006, telling defendant “this isn’t for me.” However, in the following weeks they continued to talk. Defendant would call and “would kind of plead for us not to break up or to try to work things out.” Defendant sent E.M. an email that said, “If you choose not to speak to me, I understand and will chalk it up to just another fleeting moment of happiness in my loner life. But I have learned the hardest viciously, blatant way that nothing good or wonderful ever lasts forever, not for my life. I will be fine and move on alone as is my sadly learned fate. Possibly you are the last straw in my attempt to hold onto something I care dearly about. This is my fate and I will not fight it any longer. I am an intense person. You are surely as intense as myself, if not much more. I will care about you, protect you, support you, be devoted to you and love you. I think you know that I have a big heart, as you have said before. I mean you no harm ever, but I am an imperfect growing, learning man.”
E.M. testified that defendant “was having trouble accepting” the fact that they were no longer dating. He sent many emails like the one above and E.M testified, “I would be in meetings or working in [the] office and he would walk by and look into the conference room that I was [in], or look into the meetings, and just keep walking back and forth sending text messages, ‘I see you’re in the donut room, conference room, ’... ‘I wonder what you would do if I came in....’ ” E.M. stated that “for a while I tried to be friendly... and hope that he would just... gradually let it go and move on, ” because “I never imagined that it would get worse, and certainly never imagined that it would last almost two years.”
On January 30, 2006, defendant sent E.M. an email that read, “Is this going to be the way it ends or do you need more time? I need to know so I can make some decisions. If it is not clear to you that I do not want things to end, then I have exhausted my ways of showing you. And I feel I have bent over backwards to show you how much I care, want to support you, want this to work out and desire to compromise, and I am willing to go further.... However, I will not go through this every week or two, i.e., where you continue to find things to be mad at me about, some kind of flaw in my psyche, some kind of flaw in my personality, that you just can’t imagine you are capable of dealing with without, ‘putting me in the dog house’ to put it in simplest terms. The bottom line, I feel I explained myself sufficiently that night. You were not happy, even though I was sharing my personal feelings.... So you, once again, shut me out again. I thought after our last bout with this that we decided to, ‘chill the fuck out on the little things’ and realize that we both need to relax. And then it flows through us like rain and we can’t feel anything but gratitude for every single moment of our stupid little lives. Keeping in mind that I have never asked you to change ‘for me’ not once except for this. So what are you truly unhappy about? So what is it? I need to know so I can move on, or welcome you one last time in my ‘stupid little wonderfully amazing life.’ I trust you. Don’t ever, ever, ever think or say that I do not, and don’t ever force me to talk about personal issues again, ever, because you are losing that trust for me and it will never be earned back. So what is really going on? You tell me.”
On February 4, 2006, defendant sent another rambling email in which he expressed his sadness and anger that the relationship had ended. It said in part, “And in the end, I can only assume that after forethought on your part that you will ultimately feel the same when you look back on what we had together. This thought is enough to make [me] sob uncontrollably. Did I do nothing for you? Did I not make you feel good in any sense of the word? My sadness as I have expressed to you in this life of mine will be never ending. Utter sadness and bitter resentment, so fucking sad, so fucking sad. FUCKING SOB!! That my actions when I only mean the fucking grandest best for those that I care about, fuck. This is the end result from the woman I love. I loved you in the sense that you were one of a kind for me, fucking ever, ever, ever, every one of a kind, fuck.” On February 6 defendant sent E.M. another such lengthy email.
The February 6 email read: “It is 6:30 in the morning. I am in the shower, and I feel like welling up with tears because of my (our) predicament. Because my thoughts remind me sharply of what is going on. This is not unlike any other breakup I have had, except, of course, that I care deeply that you are leaving. The panic I feel, the many messages I leave because-no, wait, maybe I should say it this way, no, wait, I have to tell her this. If I express this she will surely want to come back and stay with me maybe forever. It always feels the same like a struggle, like sinking, the helplessness like I say a lot, but feel like my words fall just short of your ears and nothing I can say will make you stay. Then my mind returns to I am incapable of maintaining a relationship with a woman. I will because of this be alone for the rest of my life. I must be cursed because if you remember these are the things I fought telling you in the beginning anyway.”
E.M. deleted many of the emails that defendant sent. “A lot of them I would delete because they were a lot more insulting and hurtful and vengeful and things.” Some “I would delete right off the bat... because they would have a lot of four letter words in them and call me names, and just things that I didn’t want to ever see again.”
In March “the voice mails were getting more persistent, more regular, more frequent. And on one of them he said, if you want me to stop calling you, all you have to do is pick up and tell me so.” The next time defendant called, E.M. answered the phone and spoke to defendant just long enough to say, “Stop calling me.” The pattern of constant phone calls, emails and text messages did not change, however.
E.M. did not go to the police at this point because she did not know that defendant was committing a crime and feared escalating the situation. She hoped that the situation “would resolve on its own.” In April and May, however, matters began to escalate. Defendant began leaving small gifts for E.M. on her car and she began receiving messages indicating that he was watching her. One such message indicated that defendant knew where she had parked her car and that “he sees my dog in the back seat and he’s standing there saying hello to her right now.” In another, defendant threatened to tell coworkers about their “relationship.”
“[B]y April 26 there was a constant... and kind of escalation ways of things to try to get me to talk to him or to interact with him. So... a text message saying... ‘I wonder what our coworkers will think when I tell them about this or that, ’ something to that effect. Before that, he was leaving things on my car in the parking lot when I was at work. [¶] Q.... [¶] A. Flowers, notes, movies, DVDs, a half-eaten roll of candy.” E.M. threw the candy in a dumpster. Defendant sent her a text message or an email expressing his feeling that she had been cruel for throwing the candy away, leading E.M. to feel that defendant was watching her. The presents on her car also put E.M. “in a difficult position and he knew that, ” because she parked in a lot with her coworkers. “So if you have... a big plant or thing of flowers on the hood..., and I would be walking out to my car among... other coworkers, Mr. Casarez knew from the very beginning that, you know, kind of bringing my personal life into my professional life, it was something that I-that I held really important, I didn’t want that to happen.” Around April 26, 2006, defendant sent E.M. a text message threatening to tell coworkers about their relationship and to tell them “things that weren’t true.” E.M. sent defendant an email that said, “I got your text message on Tuesday that you plan to publicize information about us to your coworkers. I’m not sure I understand your reasons, but I hope you think about it seriously before doing it.” The email continued to explain why she believed that doing so would be harmful to both of them in the workplace.
On June 20, 2006, defendant sent E.M. an email with the subject line, “Happy b-day ya f-ing ho bag, I mean, sweet baby.” The text of the email read, “You’re lucky I’m too fucking busy with my dysfunctional relationship to give you the time of day and send you the evil gift I was planning. Ha, ha, ha, ha, just messing with ya, what you gonna do? Happy birthday. I hate you so much you, ” followed by random capitalized letters and punctuation. Around this same time, E.M. had highlights put in her hair. The next day, defendant left a voicemail “insulting my hair color, and my hair cut.”
On July 28, defendant sent E.M. an email that said, “I’m just wondering, after all the nasty things I have said to you, why haven’t you told me to f-off and leave you alone? And I don’t think a comment of maturity will satisfy my curiosity, because, trust me, I’m acutely aware of what I am doing and how it may, might I say APPEAR my dear. So?”
In late August through September 3, 2006, E.M. traveled to Greece. When she returned, “all my voice mail inboxes were taken up by voice mails from him. So... was my personal [cell] phone, my work phone, and my work cell phone.” On September 3, defendant sent her an email entitled, “All my messages, ” which said, “Forgot you were gone for weeks. Bart just told me today that you went to Greece or something like that. Also told me you were not... being married to his knowledge anyway. So there you have it.” Bart was E.M.’s supervisor. She had not told defendant that she was taking a vacation.
Until the middle of September 2006, E.M. lived in Burlingame. Defendant “would show up at my house all the time. He’d call and leave a voice mail that he’s on his way. Other times he would just show up and ring the doorbell.” She would not answer. Sometimes defendant would come to her house at night and leave things on her doorstep. When defendant came over and rang the doorbell, E.M. would keep her dog confined to the kitchen so it would not bark. She put a cover on the inside of the door so that defendant could not see through the mail slot, and she “started... doing things inside the house that... would not make it obvious whether I was home or not.” If defendant called and left a message that he was coming over, E.M. would close the blinds so he could not see in the house. Defendant came to E.M.’s house uninvited “dozens” of times during the course of the summer. During this time, E.M. thought “all the time” about defendant’s reference to owning a gun and a crow bar while they were dating.
On October 7, 2006, defendant sent E.M. an email entitled, “How is my dirty little whore, I mean girl, no, I guess I do mean slut.” The body of the email read, “It’s a tough call my fine ass little mix [sic]. Did I mention I tested HIV positive? Guess I fucked some rottenness in there somewhere. Better run to the doctor if I was you. Ha, ha, just messing with you. If that did happen I would laugh my ass off. And laugh and laugh and laugh until I died. Ha. Well, considering I am quite straight, hopefully there is no chance of that. Oh, Little E[.], my mind goes from feeling bad for what I said to you, feeling... like saying I hope you find someone that makes you happy. I hope you are happy. You know all that bullshit that you said would make you feel better about our relationship, whatever was said the last time we talked. But the other half of me, well, three quarters of me, well, I just want to make you feel like the fucking little two faced uptight bitchy little slut that you are. You fucking, ignorant, arrogant bitch. Sometimes, just sometimes, you never plan to try to make us work, never were going to wait for me. The hilarious part is you somehow think that you are better than me, oh, more mature, ha, ha, that makes me chuckle with disgust. Well, keep this in mind, whenever you are sitting alone with your thoughts, you let me in. I fucked you and got out of you what most men only want. To stick their dick in you. Most men would fucking kill to be able to do what I do to women. What [I] did to you. As most pig fucking arrogant men say, I got my rocks off so she can go fuck herself for all I care. Trust me, every man, dude, every man I have ever talked to in my entire life thinks this way. Rich, poor, dirty, clean, trash, respectable guys, that’s all they care about and that’s all they want. I got to do what every fucker in that office wants to do, what ever[y] fucker on the street that sees you and finds you attractive wants to do. I got to do that to you. I got to use your body for my pleasure! Makes you kind of sick, don’t it? Yeah, well, life’s a bitch and then you die. I will never get what I’ve been looking for, a committed long-term genuine relationship. And I hope you end up with some pig fucking asshole that treats you like shit and doesn’t really listen to you b[ut] patronizes you and plays little mind fuck games just so he can get what he wants, to stick his dick in you and get his rocks off. Trust me, true love does not exist in this world, because if it did, I surely would have found it by now.”
Defendant sent E.M. another email the same day informing her that he had been transferred to work near Stinson Beach and asking, “You didn’t have anything to do with that, did you? Me not going back to west approach? Humm? Are you a crafty little bitch or are you not? Anyway, no worries. You will not have to see me in passing for a long time, six to eight months to be exact. Bummer, huh? Good luck with de boys. Hope you get what’s coming to you, my little E[.]” Defendant also sent E.M. two text messages-one October 6, 2006, and the other on October 7: “Well, answer me, damn it, Janet. Shit, you loser, ha, ha, ha.” “Well, now I know why everyone at that office thinks you look like an uptight little beeich, except Bill, ah, you’re no fun.”
E.M. interpreted these emails as defendant’s expression of hope that she “reciprocated in the pain that he feels. And it is very representative of some of the other emails that I mentioned that I would throw away.” Nevertheless, E.M. still did not go to the police because, “I didn’t think that the police could help. I thought that the response would be... this is a personal relationship and you have to deal with it.” Still, she felt that she was in danger. “I felt like he wanted to see... bad things for me. And I didn’t know if the HIV positive remark really was a joke.”
By October, E.M. had moved from Burlingame to San Francisco. She had not responded to any of defendant’s communications since the day in April when she answered defendant’s email regarding talking to coworkers about their relationship.
On December 9, 2006, defendant sent E.M. an email entitled, “Does it give you pleasure that you were my last straw in this life, E[.]? Do you laugh about it when you talk to your new boyfriends or old boyfriends? Do you say, I just feel so sorry for him, he is so lonely, poor, poor boy. Or do you say, it is not my fault that he’s fucked up, it’s his. Or do you simply not-do you just simply not give a damn. So how many times can someone be told how wonderful and amazing they are only to be left behind by those-those very ones that told him how wonderful he was, and this wonderful person has left and never hears again from the one he thought was wonderful, too. How many times before he ultimately realizes he must not be wonderful at all. They are lying to him. I don’t understand, insanity. Are you happy, E[.]? How found happiness? I hope you have. Sometimes when I’m alone with my thoughts, which is all the time these days, I guess, I am truly sorry for the way I have acted toward you. I want you to know that. Might be a good read for ya, or at least good for a laugh.”
At the time she received this email, E.M. was receiving frequent and continuous communications from defendant. “I felt like I was going to be hurt or he was going to hurt himself, or he was going to hurt strangers.” Defendant left a voice mail in which he stated that he regrets “all the cruel and undeserving things he’s going to do to women in his life, because of... what our failed relationship signifies to him.” E.M. was scared because she thought defendant was threatening to harm her or others.
On New Year’s Eve 2006, defendant called E.M. “continuously all night. It was probably from mid-evening and all the way through to 1:00 a.m., and then I was woken up by the calls into the 3:00 and 5:00 a.m. time period.” She received text messages from defendant as well. She received “at least 15” calls on each of her phone numbers “because that’s what it takes to fill up the voice mail boxes. And then I know for a fact that there were more than that on each [phone]. So at least 50 or 60 but I’d say more.” Defendant sent various other text messages during the morning and into the evening of January 1. “[O]n New Year’s Eve and going into January first, 2007, ... there [was] a barrage of calls coming through, and text messages and what not. And so I got fed up, and I picked up the phone the afternoon of January first when I saw a call coming in from his number again, and I just said, ‘If you call me one more time, ever, I’m going to the police.’ And I hung up.” Shortly after that she received a text message from defendant that said, “Well, if I can’t call you, can I still send text messages?” Two days later defendant began calling again.
On January 8, 2007, defendant sent E.M. an email that said, “in case you were wondering, I wasn’t calling you over and over on New Year’s to make you pissed off. I really wanted to talk to you really bad and see how you have been doing. I knew that you never answer the phone when I call, so I figured if I called you over and over again that you would get so annoyed that maybe, just maybe, you would pick up and talk to me if only for a brief moment and I could wish you a Happy New Year. I guess it worked, but I couldn’t get a word in edgewise. Wink wink.”
In February 2007, E.M. went on vacation. When she returned, all three of her voice mail boxes were again filled with messages from defendant. In many of the messages he threatened to kill himself. When she heard these messages, E.M. testified, “my first thought was that he had already done it. My second thought was, how quickly can I call my friends and family and make sure that they are okay? [¶] Q.... [¶] A. Because in those messages he expresses that he has nothing to lose, that he’s holding me responsible for his loss of will to live. And my fear was that... he was going to take me or somebody I loved with him in suicide.” “When I started listening to the messages, the content was really disturbing, and so I finally told the story to a friend who was on the trip with me, and I made the decision then at the end of February that I would go to the police.”
E.M. was scared and began to change her routine and watch her surroundings. Around this time, she received a voice mail on her work phone from defendant who told her that “he had driven to my work site and planned on coming into my office and had seen my supervisor’s truck outside, and because of that decided not to. But that he will come back, and when he does not see Bart’s truck outside, I will come in and visit.” This made E.M. feel “extremely fearful” and suggested to her that “he is still focused on me. And he’s planning to take it again to another level and come find me at work.” In an email sent March 7, 2007, defendant stated, “I want to die, E[.] Why did you do this to me?” “I hate seeing you. I well up with tears. It is like a sickness. It leaves me in tears for days.”
On April 20 2007, E.M. was driving off the work site when she saw defendant in a Cal Trans truck going in the other direction. She thought it was strange that he was there because she had spoken to the police at that point and believed that defendant had been served with a restraining order that prohibited him from coming to her work. When she arrived at the street of her home, she could see that “there was a Cal Trans truck of the kind that Mr. Casarez drives idling in front of my house.” She paused at the stop sign and the truck drove towards her. When it reached the intersection she saw that defendant was driving. E.M. testified that she “was terrified, ” because she had moved and kept her new address unlisted. “I felt like home was maybe one of the... safe places I could be. And when he was there in front of my house before I even got there, so... he didn’t follow me... [a]nd I saw him at my work site before that. So he would have had to drive straight there.” She drove to her house, ran inside and called the police.
On May 2, 2007, the court issued an order restraining defendant from contacting E.M. Defendant did not contact her again for several months.
In September 2007, however, defendant again began sending E.M. text messages. On September 24 or 25, around two in the morning, E.M. “was awakened at night by a call on my voice mail.” The phone showed an unknown caller, but when she went to work the next day she found a message that had been left at 2:02 a.m. with “sniffling and throat clearing that I recognized to be Mr. Casarez’s voice.”
That afternoon, E.M. was walking home when she saw defendant’s car with defendant inside it parked in front of her house. She also saw her brother standing in front of the house and screamed to him to get the license plate numbers, which he did. E.M. then called the police. While she was on the phone defendant “rolled really, really slowly past the front of my house to where I was standing....” Defendant stopped in front of E.M. and stared at her through the passenger window, which was rolled down. Defendant drove out of sight, then came back around to the house “two or three more times.”
E.M. testified that seeing defendant in front of her house that day was “heartbreaking and terrifying” “because there is a restraining order in place, and he had shown to this point that he didn’t have any boundaries in terms of finding ways and contacting me, and now even a police order was not stopping him. And it made me feel like... this is never going to end. That it doesn’t matter who tells him he can’t do this, that he will continue to stalk me and that he will continue to do it in escalating ways. And I don’t know where it will end. What I feel is that it’s going to end with me being hurt or killed.”
After this incident, E.M. did not see defendant again but continued to receive text messages. On October 11, 2007, defendant called E.M.’s cell phone but did not leave a message.
E.M. testified that her experience with defendant “has changed my life, and it makes me live in fear. I feel that I am constantly watched, monitored, followed.... I feel that I am hated and held responsible for something that I’m not responsible for.... [It] was a six-week relationship or so and I’ve been harassed for almost two years following. I’m held responsible for the demise in his life and that to me is delusional, it is unreasonable and it is scary.” “I’m afraid of it never ending or it ending in me being hurt or killed.”
Defendant was arrested on November 5, 2007 and was charged by information in count I of stalking (Pen. Code, § 646.9, subd. (a)) between March 2006 and May 2007; in count II of stalking in violation of a restraining order (§ 646.9, subd. (b)) between September 24 and October 15, 2007; and in three succeeding counts with misdemeanor violations of a protective order (§ 273.6, subd. (a)). Count III alleged violation of a protective order on September 25, 2007; count IV alleged violation on September 24; and count V alleged violation on October 11.
All statutory references are to the Penal Code unless otherwise noted.
A jury found defendant guilty on all counts except the alleged violation of a protective order on September 24. The court sentenced defendant to the midterm of three years on each of the stalking counts to run concurrently, and 70 days on each of the counts of violating a protective order with credit for time served. Defendant timely noticed this appeal.
Pursuant to section 646.9, subdivision (m), the court recommended that defendant be certified pursuant to section 2684 for evaluation and transfer to a hospital for mental health treatment. (Continued →)
Discussion
Evidence That Defendant Violated Section 646.9
Defendant challenges the sufficiency of the evidence to support his convictions under subdivisions (a) and (b) of section 646.9. “The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” (People v. Jones (1990) 51 Cal.3d 294, 314.)
Subdivision (a) of section 646.9 provides that “Any person who 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 of his or her immediate family is guilty of the crime of stalking, ” which may be treated as a misdemeanor or a felony. Subdivision (b) provides that anyone “who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years.”
Under the statute, the term “harasses” is defined to mean “engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.” (§ 646.9, subd. (e).) A credible threat is “a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat.” (§ 646.9, subd. (g), italics added.)
Defendant argues that the evidence on both counts of stalking was insufficient to establish that he made a credible threat or that he acted with the intent to place E.M. in reasonable fear for her safety. He argues first that his various contacts with E.M. over the nearly two-year period involved no credible threats because he made no explicit threats and the relationship had never been violent. Defendant cites People v. Zavala (2005) 130 Cal.App.4th 758, People v. McClelland (1996) 42 Cal.App.4th 144, People v. Kelley (1997) 52 Cal.App.4th 568, and People v. Falck (1997) 52 Cal.App.4th 287, all cases in which the defendant’s relationship with the victims was physically violent. However, none of these cases hold that a previous violent relationship is necessary to establish credible threats within the meaning of section 646.9.
A credible threat may be established without evidence of explicit threats or a previous violent relationship. In People v. Uecker (2009) 172 Cal.App.4th 583, the defendant was convicted of stalking two women. The first he followed, left notes on her car and repeatedly asked out over the course of seven months though she told him she was not interested in a relationship. The second woman was a realtor whom defendant called under the pretense that he was interested in purchasing a home. When she became suspicious of his motives and told him that she was no longer selling residential real estate, defendant left her “irate” messages. In neither case did defendant explicitly threaten violence. Nevertheless, the court rejected the argument that the evidence of a credible threat was insufficient. Regarding the first woman, the court noted that, “defendant’s pattern of conduct, his written notes, and verbal statements implied he was going to do whatever it took to get M. to go out with him, reasonably causing M. to fear for her safety.” (Id. at p. 594.) The court emphasized that the defendant “would always find her or her car no matter what time she had taken her lunch hour or what location she had parked her car. When she told him firmly she was not interested in him, he got mad, ” and began watching the victim at her work. (Id. at p. 595.) The court concluded that “[f]rom this evidence, a reasonable jury could have found that defendant made an implied threat to her safety in that he was going to do whatever he needed to get M. to go out with him and that she reasonably feared for her safety.” (Id. at p. 594.) Regarding the second woman, the court likewise concluded that “defendant’s pattern of conduct in calling J. over 30 times in three weeks despite her desire to cut off contact with him and his verbal statements in those calls implied a threat that caused her to reasonably fear for her safety.” (Id. at p. 596.)
Defendant relies on People v. Halgren (1996) 52 Cal.App.4th 1223 for the proposition that “a mere expression of anger or emotion” does not constitute a credible threat within the meaning of section 646.9. In finding that the statute is not unconstitutionally overbroad, the court held that “[s]ection 646.9 does not punish mere angry or emotional speech. It applies only when there has been a credible threat made with an intent to instill fear for personal safety or the safety of immediate family. This speech is not afforded the protection of the First Amendment.” (People v. Halgren, supra, at p. 1231.) The court found sufficient evidence that “Halgren repeatedly telephoned [the victim], insisting she speak with him after she had clearly explained she was not interested. He left a message on her home telephone and demanded she talk with him there. He told her she would be sorry she had been so rude. He appeared at her office when she was not there, positioning himself where he could watch people leave the building. On the day he was arrested he told her she would pay for her rudeness and he would ‘fix her’ or ‘fix this.’ These statements were a credible threat with a clear intent to place her in fear for her safety. Coupled with the repeated harassing telephone calls, they constitute substantial evidence which support his conviction of felony stalking.” (Id. at p. 1233.)
Here, as in Uecker and Halgren, defendant did not “merely” express emotion or anger. He continued to make contact with E.M. long after she had unambiguously indicated that she wanted him to stop contacting her. He made clear that he was watching her by commenting on her new hair style, commenting on the fact that she threw away the half-eaten candy he left for her, learning from her supervisor when and where she was going on vacation, and by finding her after she had moved and made an effort to keep her new address secret. Defendant used all manner of obscenities to refer to E.M. and told her that he was HIV positive. Following this statement with the disclaimer that he was “messing with” her would hardly lessen the apprehension that such a remark would be likely to instill. His comment that he had visited her work site but left when he saw her supervisor’s truck and would return when she was alone could easily be construed as a threat to harm E.M. Defendant made a point of telling E.M. that he kept a gun, that mental illness ran in his family and he believed he also suffered from some sort of mental illness. He made statements such as, “Possibly you are the last straw in my attempt to hold onto something I care dearly about, ” “I will try my best not to send you to hell, ” “I... want this to work out and desire to compromise, and I am willing to go further....” He threatened to send her an “evil gift.” Taken together, there was sufficient evidence for the jury to conclude that defendant made a credible threat.
Defendant also argues that the fact E.M. did not immediately report his behavior to the police suggests that no credible threat was made, citing People v. Falck, supra, 52 Cal.App.4th 287. There the court held that “in determining whether a threat occurred, the entire factual context, including the surrounding events and reaction of the listeners must be considered.” (Id. at p. 298, italics added.) E.M. explained that she waited to contact the police because she did not believe they could assist her, and because she thought that defendant would stop contacting her if she did not respond. She testified that she was frightened and disturbed by defendant’s protracted campaign of contacts after she explicitly told him she no longer wanted to speak with him. She covered the mail slot on her front door so defendant could not see into the house and locked the dog in the kitchen when she knew defendant was coming. Ultimately, when she was convinced that defendant would not leave her alone, she contacted the police. Considering the entire context, the fact that E.M. waited over a year to contact the police does not undermine the substantial evidence that she was frightened by defendant’s behavior.
Defendant next argues that there was insufficient evidence that he acted with the intent to place E.M. in reasonable fear for her safety as required by section 646.9, subdivision (a). He argues that his “conduct was focused on getting [E.M.] to speak to him, ” rather than on frightening her. “Section 646.9 does not require that the defendant actually intend to carry out the threat. It is enough that the threat causes the victim reasonably to fear for her safety or the safety of her family, and that the accused makes the threat with the intent to cause the victim to feel that fear.” (People v. Falck, supra, 52 Cal.App.4th at pp. 297-298.) Intent “can be inferred from circumstantial evidence. (§ 21, subd. (a).) Indeed, it is recognized that ‘[t]he element of intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence.’ ” (Id. at p. 299.)
Defendant argues that the evidence here was insufficient by comparison to the evidence that supported the convictions in People v. Kelley, supra, 52 Cal.App.4th 568 and People v. Falck, supra, 52 Cal.App.4th 287. In Kelley, the court found there was sufficient evidence of intent, noting that although the defendant claimed he loved the victim and would not intentionally harm her, he had molested her when she was a child, ran her bicycle off the road with his car and blamed her for his imprisonment for molestation. In Falck, the defendant sent the victim pornographic letters and photographs and expressed his desire to spend eternity with her; he also described his “proficiency with a rifle, ” which the court held could be construed as an implied threat to kill her and himself. (52 Cal.App.4th at p. 298.)
Defendant urges that his case is distinguishable because he did not have a history of molesting E.M. and because he did not make “intentionally veiled threats.” Nevertheless, defendant’s unrelenting course of contact over a two year period in the face of E.M.’s clear message that she did not wish to continue contact, the fact that he made clear to her that he was watching and following her, the fact that he appeared at her new house despite her efforts to keep the location secret, the threat to send her “an evil gift, ” and his threats of suicide which evidenced a willingness to take violent action, could reasonably be construed as intended to cause her fear. Defendant’s actions in this case echo the court’s observation in Falck that the defendant “made it abundantly clear that his desires took precedence over the victim’s wishes. His obsession continued over 12 years notwithstanding that the victim did not know him, had evidenced no desire whatsoever to know him and indeed had taken steps to ensure that he would not contact her.” (People v. Falck, supra, 52 Cal.App.4th at p. 298.) The fact that defendant followed the “evil gift” remark with the disclaimer, “just messing with ya, what you gonna do?” and the remark in the following email, “trust me, I’m acutely aware of what I am doing and how it may, might I say APPEAR my dear, ” suggest that defendant was intentionally avoiding making explicit threats in the hope of avoiding criminal sanctions. Defendant characterizes his statement that he hoped E.M. “gets what is coming to her” as sarcastic, but the jury was entitled to interpret the statement as threatening.
Defendant also argues that the evidence was insufficient to establish that he made a credible threat against E.M. after the protective order was entered, as alleged in the second count. However, defendant’s conduct in making contact with E.M. in violation of the restraining order, appearing at her new home without notice, staring at her and twice circling the block was behavior that could reasonably be construed as threatening. Defendant argues that he intended to do no more than persuade E.M. to communicate with him. The persistence and tone of his communications, however, support the jury’s finding that he intended to make E.M. fear for her safety. As the court noted in Falck, “it is a sad truth, and one commonly reported, that persons such as appellant, in the grips of an obsession, have killed or harmed the object of that obsession, even while maintaining that they have no desire to cause harm. In short, the evidence not just slightly, but overwhelmingly, supports the finding that the victim not only actually feared appellant, but had cause to fear him.” (People v. Falck, supra, 52 Cal.App.4th at p. 298.)
Police Statements
On November 6, 2007, defendant was arrested and interviewed by Sergeant Wiedman of the San Francisco Police Domestic Violence unit. The prosecutor played for the jury a tape of the interview. Defendant argues that the court erred in admitting certain statements made by Wiedman during that interview. “[A] trial court generally has broad discretion to admit proffered evidence, and its discretion will not be disturbed on appeal absent a showing of an abuse of that discretion.” (People v. Hernandez (1997) 55 Cal.App.4th 225, 239-240.)
The tape played for the jury reflected that after reading defendant his Miranda rights, Wiedman asked defendant when he had sent text messages to E.M. most recently. Defendant admitted sending E.M. two text messages “a couple of weeks ago, ” urging her to withdraw the restraining order. When Wiedman explained that the restraining order prohibited him from contacting E.M., defendant explained, “I know. If I had known that, I would’ve-have gone through the (inaudible) as to try to appeal that restraining order. (Inaudible) or something that I can do but, honestly, ah, if I had known it was this serious, (inaudible) she would never hear from me again.” Wiedman pointed out that E.M. had “made it very clear she wants no contact with you. The courts have made it very clear that you can have no contact with her. [¶]... [¶] And you still have proceeded to call, drive by her home.” Defendant stated that he did not know where E.M. lived, and asserted that he was looking for a parking place in the neighborhood when he drove by her house.
Defendant again asserted that “all I want to say is that she needs to drop this.” Wiedman told him, “It’s not up to her. The district attorney has brought charges against you. The district attorney is the one that issued the warrant. The district attorney looked at all these violations and said we need to do something, okay? And [E.M.] has every right to file a police report every time you violate those restraining orders. And given the accumulation of your violations, that’s when the district attorney said enough is enough. This has been going on forever.”
Defendant denied calling E.M., but Wiedman told him that E.M. had pictures of the screen on her cell phone with the calls. Defendant then admitted that he “called her maybe... a couple of times.” Wiedman asked why he had called and defendant stated, “Because she’s just the center of the beginning (inaudible) for me, so if I had known this was gonna be something this serious... then maybe this... I mean, I don’t wanna threaten, nothing I’ve done is threatening.” Wiedman disagreed, stating, “Your driving by where she is, is threatening. You calling constantly is threatening.” Defendant stated, “It’s not constantly. I know I have not done that.” Wiedman again stated, “It’s threatening, ” and defendant again asserted, “I have not done that.” Wiedman stated, “It’s a violation of the restraining order, and she takes it as a threat. And, quite honestly, the district attorney looked at the case and saw it as a threat. I look at the case, I see it as a threat. You’ve been given an order by the courts that says you shall not, will not contact her, and yet you have continued to. I take that as a threat; she takes that as a threat; the district attorney takes it as a threat.” Defendant replied, “It’s not as if what I said was like, ‘I’m gonna hurt you’ or something. I mean, I just want her to know that I don’t hate her....” Defendant apologized for continuing to contact E.M., stating again that “I didn’t know it was gonna be this serious, honestly.” Wiedman told him, “[From] now on anything you do, anything you do with contacting her is seen as a threat.”
Defendant’s counsel objected to the admission of the interview, arguing that “much of it appears to be hearsay statements on the part of the officer....” The district attorney argued that “[t]he officer’s statements aren’t offered for the truth of the matter; it is the defendant’s admissions that are being offered. The officer can ask questions regarding what anybody says or elicit a question... and answer session with regard to what anybody says. It is not hearsay because [the] People aren’t even necessarily offering the question, we’re offering the answer.” Defendant responded, “there are a lot of things that are very much asserted by the officer. They are talking about Mr. Casarez’s statements, those are one thing, but, you know, to have the officer sitting here and telling Mr. Casarez what his intentions are, that’s extremely prejudicial and extremely leading. It certainly wouldn’t be allowed if he were testifying.” The trial court overruled the objection. No limiting instruction was requested or given.
Defendant argues that the tape recording of the interview should have been excluded because Weidman’s statements were hearsay, because they were not relevant, and because they were more prejudicial than probative. At trial, defendant objected only on the ground of hearsay. Having failed to object on the other grounds, those objections are waived. (Evid. Code, § 353; People v. Kipp (2001) 26 Cal.4th 1100, 1124.) As to the hearsay objection, “An out-of-court statement is properly admitted if a nonhearsay purpose for admitting the statement is identified, and the nonhearsay purpose is relevant to an issue in dispute.” (People v. Turner (1994) 8 Cal.4th 137, 189, overruled on other grounds by People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) Wiedman’s statements were admissible for the nonhearsay purpose of giving context to the statements made by defendant. (People v. Turner, supra, at pp. 189-190; see also People v. Davis (2005) 36 Cal.4th 510, 535-536.) Without Wiedman’s portion of the interview, it would not have been clear that defendant lied about calling E.M. and waiting in front of her house, that he acknowledged much of the behavior on which the charges were based, and that he continued to insist that his conduct was acceptable. It is questionable whether portions of the interview could have been excised without distorting the meaning of defendant’s responses, but in all events no request was made to excise any particular portions of the interview.
Even if there were any error in admitting the unredacted interview tape, any such error was plainly harmless. It is not reasonably probable that excluding Wiedman’s statements would have resulted in a more favorable outcome. (People v. Watson (1956) 46 Cal.2d 818, 836.) There was overwhelming documentary and testimonial evidence of defendant’s obsessive and unrelenting contacts with E.M. after she had made clear that she did not wish to speak to him. The prosecutor did not mention the interview in his closing argument.
While defendant’s attorney can perhaps be faulted for having failed to request a limiting instruction with respect to statements made by Wiedman during the interview, the failure provides no basis for defendant’s contention that he was thereby denied the effective assistance of counsel because the absence of such an instruction also was harmless. “In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (People v. Williams (1997) 16 Cal.4th 153, 214-215.) It is not reasonably probable that a limiting instruction would have produced a different result as the evidence of defendant’s guilt was compelling and Wiedman’s statements were not relied upon by the prosecutor.
Misdemeanor Counts
Defendant argues that the two misdemeanor counts of violating a restraining order were necessarily included offenses of stalking in violation of a restraining order and therefore that these counts must be reversed.
“There are two tests for determining whether one offense is necessarily included in another: the ‘elements’ test and the ‘accusatory pleading’ test. [Citation.] We apply the ‘elements’ test here because this case involves the conviction of multiple alternative charged offenses. ‘Courts should consider [both] the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes.’ [Citation.] Under the ‘elements’ test, we look strictly to the statutory elements, not to the specific facts of a given case. [Citation.] We inquire whether all the statutory elements of the lesser offense are included within those of the greater offense. In other words, if a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense.” (People v. Ramirez (2009) 45 Cal.4th 980, 984-985.)
Defendant was charged in count II of the amended information with “commit[ing] the crime of stalking-violation of a restraining order, to wit: violating section 646.9(b) of the Penal Code, a felony” in that he harassed and made a credible threat against E.M. “when there was in effect a temporary restraining, injunction and court order in effect prohibiting said behavior.” Given the form of this pleading, it is not surprising that defendant has contended that the violations of the protective order alleged in the three following counts were lesser included offenses of the alleged violation of section 646.9 subdivision (b) under the elements test. However, the elements of the stalking offense are included in subdivision (a) of section 646.9. Subdivision (b) does not define the elements of the crime but provides only an enhanced penalty for committing the offense defined in subdivision (a). Thus, count II of the information more properly should have read that defendant violated section 646.9 subdivision (a) and was subject to the enhanced penalty under subdivision (b).
In People v. Kelley, supra, 52 Cal.App.4th 568, the defendant argued that double jeopardy attached when he was convicted of contempt for violating a restraining order that precluded his later prosecution for violating section 646.9. The court stated, “In making this argument, he incorrectly assumes section 646.9 defines the crime of stalking in violation of a restraining order. The section merely defines stalking. The provisions relating to the violation of a restraining order do not define a crime. They merely create a punishment enhancement. As such, they are not to be considered in the double jeopardy analysis. [Citation.] Absent these provisions, the crimes are distinct and the constitutional prohibition against double jeopardy was not violated.” (Id. at p. 576, fn. omitted.)
Thus, under the elements test, the offense defined in section 273.6, violation of a protective order, is not a lesser included offense of stalking as defined in section 646.9, subdivision (a). One can commit stalking as defined in subdivision (a) without violating a protective order, as defendant was alleged and proved to have done under count I. Therefore, defendant was properly convicted of two counts of violating a protective order in addition to his conviction under count II for stalking subject to an increased penalty for having done so in violation of a restraining order.
As defined by Family Code section 6218, a protective order may enjoin specific acts of abuse, exclude a person from a dwelling, or enjoin other specific behavior.
Nonetheless, although separate convictions under count II and counts III and V were permissible, separate sentences were not. The acts that constituted stalking under count II apparently were the same as those that constituted the violations of the protective order alleged in counts III and V. Defendant was charged in count II of the amended information with engaging in stalking in violation of a restraining order “between the 24th day of September, 2007 through the 15th day of October, 2007, both days inclusive.” Count III alleged that on September 25, 2007, defendant committed “the crime of disobeying [a] domestic relations court order, to wit: violating section 273.6(a) of the Penal Code, a misdemeanor, in that the said defendant did willfully, unlawfully and knowingly violate a protective order issued by the court....” Count V alleged that defendant engaged in the same conduct on October 11, 2007. The prosecutor argued that defendant violated “the restraining order on 9/24. Remember, she couldn’t remember if it was 9/24 or 9/25. And there is... an instruction that says, ‘actual date need not be proven by the People.’ So he broke the restraining order on one of th[o]se days.... Then... September 25th of 2007 she is coming home... [and] [t]here is a black Mercedes parked outside of her home....” The jury was not instructed that the misdemeanor counts referred to dates or conduct different from those on which the allegations in count II were based, and neither the prosecutor nor anyone else ever suggested that the counts were based on separate events. The prosecutor’s closing argument referred to the late night phone calls on either September 24 or 25, defendant’s appearance in front of E.M.’s house on September 25, and the October 11 text message, urging that these events showed defendant to be guilty of both stalking and violating the restraining order.
Section 654, subdivision (a) bars punishment for both crimes if they were based on the same acts. “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision....” (See, e.g., People v. Jurado (1972) 25 Cal.App.3d 1027, 1033 [court cannot impose punishment for enhancement for committing a crime with a weapon and for first degree burglary where possession of gun was basis for elevating burglary to first degree].) Here the court imposed two concurrent 70-day sentences for the misdemeanor charges. The sentences should have been stayed. The judgment and the abstract of judgment therefore should be modified to reflect that sentences under counts III and V were stayed pursuant to section 654.
Ineffective assistance of counsel
In addition to his appeal, defendant has filed a petition for habeas corpus in which he argues that he received ineffective assistance of counsel during plea negotiations. “To demonstrate that a defendant has received constitutionally inadequate representation by counsel, he or she must show that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s deficient performance subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant.” (In re Alvernaz (1992) 2 Cal.4th 924, 936-937.) To establish the second element where the deficient performance is failure to give competent advice concerning the advisability of accepting a plea bargain and the defendant has been convicted and received a greater sentence than had been offered, “a defendant must prove there is a reasonable probability that, but for counsel’s deficient performance, the defendant would have accepted the proffered plea bargain and that in turn it would have been approved by the trial court.” (Id. at p. 937.)
Before trial, the district attorney offered to allow defendant to plead guilty to the first count of stalking as a felony with imposition of sentence suspended and three years of formal probation. Although defendant alleges that he “do[es] not recall” his attorney conveying this offer to him, he acknowledges that the attorney told him “that the prosecution had offered to resolve my case with my pleading to a felony charge of stalking, with 18 months of probation.” He claims, however, that his attorney “did not explain to me in any detail the prosecution’s offer.” Defendant states that his attorney told him, “a. I would not be found guilty at trial because my actions did not meet the elements of the crime of stalking. [¶] b. [Counsel] believed my case was defensible because there was no evidence of physical abuse towards [E.M.] [¶] c. I should not have to live with a felony on my record because I did not essentially commit this crime. [¶] d. The deputy district attorney assigned to my case was lazy and would not be able to prevail at trial. [¶] e. If I were placed on probation, the deputy district attorney assigned to my case would hound me, single me out, and make a special effort to place me in jail for any violation of the terms of my probation.”
Defendant further alleges that he informed his attorney “on several occasions” that he did not want to go to jail or prison and that if counsel “could not guarantee I would not go to jail, I wanted to resolve my case by way of a plea bargain.” Defendant states that he “was willing to accept” the offer that was communicated to him, or to accept the offer of three years probation. Nevertheless, defendant asserts that his attorney “was adamant that I should not accept an offer from the prosecution and that instead I should proceed to trial.... In advising me to go to trial, [counsel] did not tell me the potential consequences of proceeding to trial [and] the minimum or maximum sentence I could receive if I went to trial and lost.”
Defendant’s petition also includes as an exhibit a declaration from his trial counsel in which the attorney states that he conveyed the three year “offer to [defendant] many times throughout the proceedings, often in the presence of his parents; [¶] I advised [defendant] of the consequences of rejecting the prosecution’s offer, including the potential maximum sentence; [¶]... [¶] I advised [defendant] that should he be found in violation of his probation, he could be sentenced to state prison without a jury trial. I informed [defendant] that approximately 7 out of 10 probationers in domestic violence court were found to be in violation of the terms of their probation at some point during their probation; [¶] I advised [defendant] of my experience working with [the prosecutor]. In my experience, [he] is an extremely aggressive prosecutor who has a reputation for meticulously following the progress of probationers. I further advised [defendant] that I had seen [the prosecutor] file motions to revoke probation for even the most minor of infractions or misunderstandings; [¶] I advised defendant that, in my experience, the court was also staffed by a very aggressive probation officer. I advised him that, in the event of even an honest mistake (i.e. missing a date for a class or progress report), he would very likely find himself in custody without the right to bail and facing a motion to revoke his probation.” The attorney also stated that he told defendant he believed the case to be defensible at trial because he “believed that the prosecution’s evidence of [defendant’s] intent to convey a ‘credible threat, ’ as required by both P.C. 646.9(a) and 646.9(b), was particularly weak; [¶] Based on my advice, [defendant] never stated unequivocally that he was interested in accepting the People’s offer.”
Defendant has submitted a letter dated May 19, 2008, that he sent to his attorney in which he states, “As I have mentioned on many occasions, I really do not want to go to jail or prison. If you cannot guarantee that I will not go to jail or prison, I feel my only possible alternative is to try to plea bargain.” The bulk of the letter is devoted to asserting at length that his behavior toward E.M. was caused by a drug addiction and that he was receiving counseling and attending 12-step programs.
“[D]efense counsel must communicate accurately to a defendant the terms of any offer made by the prosecution, and inform the defendant of the consequences of rejecting it, including the maximum and minimum sentences which may be imposed in the event of a conviction. [Citations.]... [A] defense attorney’s simple misjudgment as to the strength of the prosecution’s case, the chances of acquittal, or the sentence a defendant is likely to receive upon conviction, among other matters involving the exercise of counsel’s judgment, will not, without more, give rise to a claim of ineffective assistance of counsel.” (In re Alvernaz, supra, 2 Cal.4th at p. 937, fn. omitted.)
Defendant’s declaration itself provides scant evidence that his attorney, although assertedly advising him to reject the plea bargain, failed to properly advise him of the potential consequences of proceeding to trial. The meaningful assertions contained in his declaration are largely refuted by the former attorney. The attorney confirms that he discouraged defendant from accepting the prosecution’s offer because of the disadvantages and risks of a “felony plea” and of being placed on probation and his belief that the case was “defensible, ” but he states that he advised defendant “of the consequences of rejecting the prosecution’s offer, including the potential maximum sentence.” The attorney indicates that some discussions concerning the prosecutor’s offer took place in the presence of family members, but defendant does not offer declarations by any family members contradicting the attorney’s description of the advice he gave. Thus, the evidence submitted in support of the petition at most shows that the attorney may have misjudged the likelihood of a favorable outcome at trial and perhaps overstated the adverse consequences of probation, but defendant has not shown that he was unaware of the risks he assumed by rejecting the disposition that the prosecutor offered.
Moreover, defendant offers no corroboration for his self-serving assertion that he would have accepted the prosecution’s offer but for his attorney’s advice, The court in Alvernaz noted “the ease with which a defendant, after trial, may claim that he or she received inaccurate information from counsel concerning the consequences of rejecting an offered plea bargain. ‘It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence....’ [Citation.].... Thus, in reviewing such a claim, a court should scrutinize closely whether a defendant has established a reasonable probability that, with effective representation, he or she would have accepted the proffered plea bargain.” (In re Alvernaz, supra, 2 Cal.4th at p. 938.) “In determining whether a defendant, with effective assistance, would have accepted the offer, pertinent factors to be considered include: whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain. In this context, a defendant’s self-serving statement-after trial, conviction, and sentence-that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence.” (Id. at p. 938, italics added.)
Defendant has failed to make an adequate prima facie showing of either ineffective assistance or prejudice, and therefore the petition for habeas corpus must be denied.
Disposition
The matter is remanded with instructions to modify the judgment to reflect that sentences under counts III and V have been stayed pursuant to section 654, but in all other respects the judgment is affirmed.
We concur: McGuiness, P. J.Jenkins, J.
On May 5, 2006, defendant sent E.M. an email that said, “I cry a lot these days because of my failure to hold on to you. You have no idea how badly I want to hate you. The shit, as you called it, I want to share with all or have shared already. Yet I miss so terribly the things we had in common, the things I don’t see in others. Maybe you meet people all the time with similarity to yourself like we shared, I do not. And as of now I have no hope left of ever finding that again in anyone, no hope at all. I truly want to know if this gives you any satisfaction. That you could have this power over one to make them lose hope. You can say to yourself, it is not my fault he is losing hope. Hum. If I had never met you, maybe you could say that.... I will try my best not to send you to hell among the people that surround us. I will try my best not to express the love I have for you among the people that surround us. Most of the time in life there are no guarantees unless you get your money back.”
The record does not state explicitly whether the sentence on the misdemeanor counts was concurrent or consecutive to the sentence on the felony counts. However, it appears that all sentences were intended to run concurrently inasmuch as the 104 days credit for time served to which defendant was entitled both eliminated service of any time in the county jail and applied against the three-year prison sentence.
Trial counsel states in his declaration, “I do not specifically recall receiving [defendant’s] letter dated May 19, 2008. However, I received literally hundreds of telephone messages and many letters from [defendant] during the course of his pending case. The subject of this correspondence [was] typically [defendant’s] explanation and/or apology for his conduct, rather than a request to plead guilty to a felony charge.”