Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct. No. SWF 012417, Michael S. Hider, Judge. (Retired judge of the Merced Sup. Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, David Delgado-Rucci and Raymond DeGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Joseph Neil Kelly appeals from judgment entered following a jury conviction for first degree burglary (count 1; Pen. Code, § 459). Defendant was sentenced to an upper term of six years in state prison. On appeal, defendant contends (1) the trial court erred in denying his motion to represent himself (Faretta motion); (2) there was insufficient evidence of burglary; (3) the prosecution was barred from arguing the theory of burglary; and (4) imposition of the upper term sentence violated Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856, 860 (Cunningham).
Unless otherwise noted, all statutory references are to the Penal Code.
Faretta v. California (1975) 422 U.S. 806, 835-836 (Faretta).
We conclude that the trial court’s denial of defendant’s Faretta motion was harmless error, but we find that while there was no evidence that defendant entered the victim’s house with the intent to commit larceny, there was sufficient evidence that he committed the felony of stalking based upon his repeated threats and harassment of the victim and her family.
1. Facts
Defendant dated Michelle Hoppe, and then moved into her home in 2002. Defendant lived with Hoppe and her two children, who are nine and 11 years old, until June 2004, when she asked defendant to move out.
From September 2004 to July 2005, defendant frequently emailed and telephoned Hoppe. Hoppe and defendant remained friends. If Hoppe did not answer her phone, defendant would show up at her front door, usually late at night. They would talk a little. She still had feelings for him and they were sexually intimate on occasion.
Before going out of town in June, 2005, Hoppe changed her locks and put chain locks on her doors. While Hoppe was out of town, defendant called Hoppe many times. When Hoppe realized defendant was calling from her home phone, she told defendant to get out of her house. Upon returning home on June 27, Hoppe told defendant she was dating another man and her relationship with defendant was over. Defendant was angry Hoppe would not be intimate with him.
On July 5, 2005, around 10:00 p.m., defendant knocked on Hoppe’s front door, and then on Hoppe’s sliding glass back door. Next, he threw wood chips or rocks at her window. When Hoppe heard defendant enter her garage, she went to the hallway leading to the garage. She heard defendant use a key to unlock her screen security door. Hoppe did not recall ever giving defendant a key to the door. As defendant pushed open the firewall door, Hoppe tried to push it closed. Defendant pushed through and broke the chain lock.
Defendant walked toward Hoppe, holding his hands up and did not touch her. He had shaved his head and was dressed up in a white dress shirt and black pants. Hoppe had never seen him dressed up before. Hoppe described him as looking strange, agitated, and “in a crazy rage.” She believed he was upset because she had ended her relationship with him.
Hoppe told defendant to leave. Defendant replied, “I don’t care. I’m going to die in your house tonight.” Defendant’s appearance scared Hoppe and she feared for her and her boys’ safety. She also feared defendant might harm himself. Hoppe told defendant she did not want to get the boys out of bed. Defendant again said, “I don’t care. I’m going to die in your house tonight.” He said this two or three times. Defendant told Hoppe he had taken enough drugs, and he didn’t care. Hoppe again told defendant she did not want to get the boys out of bed, but then went to get them to leave.
She woke up her boys and told them defendant was there and they had to go. She escorted the boys out of the house and went down the street to a neighbor’s home. Hoppe left her purse and keys in the living room. She wanted to get the boys out of the house because she did not want them to see defendant kill himself. She also feared he might kill her and the boys. Hoppe acknowledged that defendant told her that night that he was not going to hurt her or her children, and he had never made any threats he would harm her or her family members. After leaving the boys at a neighbor’s home, she went to the home of another neighbor and called 911 on her cell phone.
The recording of Hoppe’s 911 call was played for the jury. During the call, Hoppe stated that her ex-boyfriend was at her home and she wanted him to leave. He had shaved his head and had said he was going to die in her house that night, “so he’s not armed, but he’s stupid.” Hoppe told the operator that, as she was leaving her house with her boys, defendant was in the hallway upstairs and had said to her, “I’m not going to hurt you guys. . .I love you. . . I’m going to die here tonight.” The operator asked if defendant had any weapons. Hoppe said he did not and he was small, around 130 pounds.
Officers arrived and went inside Hoppe’s home. No one was there. Hoppe went in and checked her purse, which was in the living room, and discovered her ATM and credit cards were missing. One was a Wells Fargo ATM card. Her Wells Fargo Visa card, Chase credit card, and GM credit card were also missing.
That night Hoppe cancelled the cards and checked her online bank and credit card accounts. She discovered that $300 had been withdrawn from her ATM account that night between 11:00 and 11:30 p.m. When Hoppe cancelled her ATM and credit cards, she asked if there had been any charges made on them. She was told there was a pending $300 charge on her Wells Fargo Visa card.
Hoppe then reported this to Sheriff’s Deputy Cardenas and the Pechanga Casino, which defendant frequently visited. On July 6, Detective Surita, who was employed by Pechanga Resort and Casino, called Hoppe and told her defendant was being questioned and Surita had found her credit cards in defendant’s possession. Surita had found defendant in the casino and placed him under surveillance. During the surveillance, Surita saw defendant take to the casino cashier an ATM voucher for cash. The cashier rejected the voucher because defendant did not have two forms of identification.
Surita then approached defendant at 6:00 a.m. in the poker room, confirmed defendant’s identity, and escorted him to the detective office. Defendant looked nervous. As Surita and another detective were walking with defendant to the office, Surita told him that Surita believed defendant had committed a felony and defendant was going to be questioned. Defendant ran off across the casino and then surrendered. Surita arrested defendant for felony burglary.
The arrest was a citizen’s arrest.
Surita searched defendant and found Hoppe’s ATM and credit cards. Defendant said to Surita, “‘You got me. What took you so long. I have been in the casino for six hours.’”
After sheriff’s deputies transported defendant from Pechanga Casino to the station, Sheriff’s Deputy Ricken also searched defendant and found in his wallet $300 in cash, as well as the ATM and credit cards. When interviewed by the police, defendant acknowledged he had been at Hoppe’s home late in the evening on July 5, 2005. When asked if he had told Hoppe he wanted to die, defendant said, “[Y]es, I did. I am all fucked up.” Defendant said that, after Hoppe left the house, he walked out the door. He admitted trying to use Hoppe’s ATM card but could not remember her pin number. He also went to an ATM machine at the casino and somehow received a cash receipt for $300 from the ATM machine but, when he took the voucher for the $300 to the cash exchange booth, he was denied the cash and told to leave because he did not have two forms of identification.
2. Self Representation
Defendant contends the trial court abused its discretion in denying his motion to represent himself (Faretta motion). Having reviewed the transcript of the hearing and the relevant law, we agree, but conclude such error was harmless.
Faretta, supra, 422 U.S. 806.
A. Procedural Background
The People filed charges against defendant in July 2005, for two counts of burglary (§ 459). The information, filed in November 2005, likewise alleged two counts of burglary. Count 1 was for burglary on July 5, 2006, at Hoppe’s house, and resulted in a conviction. Count 2 was for burglary on July 6, 2005, at the Pechanga casino, and was dismissed during the trial based on lack of evidence.
On November 9, 2005, the People filed a discovery motion requesting defendant to identify his trial witnesses and produce tangible evidence intended to be offered at trial, including witness statements and expert reports.
On November 14, 2005, the trial court set the case for trial on January 11, 2006. The court noted the last day for trial to begin was January 13, 2006.
On December 30, 2005, the trial court heard defendant’s motion to set aside count 1 under section 995. Defendant argued there was insufficient evidence defendant had the intent to commit theft upon entering Hoppe’s home. The People argued at the hearing that defendant was stalking Hoppe and entered Hoppe’s home with the intent to scare or vex her.
The trial court denied defendant’s section 995 motion, finding there was sufficient evidence supporting the inference that defendant entered Hoppe’s home with felonious intent, such as the intent to commit stalking (§ 646.9). The court stated there not only was evidence defendant entered Hoppe’s home to get Hoppe’s sympathy by threatening to kill himself, but also evidence that he created fear in Hoppe that defendant might harm her and her children. The court added that there was no evidence that supported the theory that defendant entered with the intent to commit theft.
Marsden Motion
On January 11, 2006, the date originally scheduled for trial, defense counsel answered ready for trial and then told the court that defendant wanted a Marsden hearing. The motion was heard in another courtroom that day. Defendant submitted a written Marsden request in which he complained that, as of December 29, 2005, his attorney had not contacted or subpoenaed key witnesses and, during the past two and a half months, his attorney had spent no more than two and a half hours discussing the case with defendant.
Defendant’s attorney noted that defendant wished to substitute out the entire public defender’s office. Defendant complained that there were 40 or 50 witnesses that should have been contacted and his attorney had failed to appeal the preliminary hearing decision. The court responded that defendant’s attorney had done so. She had filed a section 995 motion. Defendant complained that his attorney did not talk to him, see him, or return his calls. He had information he wanted to give her to assist her with his case.
The court asked defendant’s attorney, Coleen Lawler, to respond to defendant’s complaints that she had not contacted potential witnesses and was not communicating sufficiently with him. Lawler stated that she received the case after the preliminary hearing. Upon receiving the case, she had an extensive conversation with defendant at the jail about the case and her investigator had attempted to contact the witnesses.
Lawler noted that at the preliminary hearing the People changed the theory of their case due to Hoppe testifying that defendant had been harassing her. As a consequence of this new burglary theory raised during the preliminary hearing, there were additional witnesses who needed to be contacted. Lawler did not have contact information for the new witnesses and therefore her investigator had not been able to contact all of them by January 11, 2006. In addition, Lawler received the People’s discovery responses on January 10, and her investigator had not yet had the chance to follow up on the new information.
Lawler added that, despite advising defendant against it, he had sent the district attorney’s office detailed information explaining his defense and this had caused problems in defending him.
When the court asked defendant to respond to Lawler’s comments, defendant complained that every time he told her something, she would say, “sh, sh,” and she had shown disdain for him ever since he had written the letter to the district attorney. Defendant asked the court what would happen if he represented himself. The court told him he would need to make a motion and the court would consider whether it was timely, since his trial was scheduled to begin that day. The court denied defendant’s Marsden motion on the ground there was insufficient evidence to remove Lawler or the public defender’s office. The court referred the matter back to the previous courtroom for trial.
Faretta Motion
When the parties returned to the original courtroom, Lawler informed the court that defendant wanted to make a motion to represent himself (Faretta motion). The court told defendant it was unwise to represent himself. Defendant said he wanted to represent himself because Lawler had done “next to nothing in my case so far, so I feel that I’m better off doing next to nothing myself.”
The prosecutor explained to the court that the case had been “short set” for trial and the last day for trial was in two days, on Friday, January 13. The prosecutor received the case a little less than a month before the holidays and made discovery requests for items, including 911 tapes and surveillance videos. After receiving numerous documents and meeting with Hoppe, the prosecutor provided the voluminous discovery to Lawler within the last day or two. The prosecutor said he needed a day or two to contact his witnesses. He did not think that if defendant represented himself defendant would be ready for trial that soon.
The court told defendant: “The law is clear, Mr. Kelly, I don’t have to allow you to represent yourself if you’re requesting a continuance to do so. I don’t see how you could possibly be ready for trial by Friday [January 13, 2006].” Defendant responded, “Sir, there’s at least 30 or 40 witnesses I intend to be calling, including an eyewitness from that evening that saw me physically enter her house.” The court noted the prosecution would need that information. Defendant replied, “He’s gonna need it. We’re going to need time, sir.”
The court denied defendant’s Faretta motion, without prejudice to renewal, on the ground defendant would not be ready to proceed to trial without a continuance. The court stated: “So I’m not going to grant the request at the present time, because, as I say, the law is clear, if you say, ‘I want to represent myself but I’m not ready to go now,’ I don’t have to grant that request. So why don’t we look at the discovery first. I will allow you to make that motion in the future. If you want to look at everything that Mr. Kaloustian [the prosecutor] has just provided to Ms. Lawler in the next day or two, take a look at that, and get her the list that you want, and let’s talk about this in the future.” Defendant said Lawler already had the list for over two months and defendant was aware of everything the prosecutor had, with the exception of not having seen the surveillance videotape or having heard the surveillance audio. Defendant claimed he knew what the prosecution’s witnesses were going to say.
The court responded that unless defendant was ready to go to trial that day, his Faretta motion would be denied. Defendant said he was not ready to go to trial that day because he did not have his witnesses. Lawler added that she would be engaged in trial through Friday. The court stated that because defendant was not ready to go to trial, his Faretta motion was denied without prejudice to renewing it in the future.
The court added: “I’m not going to let you represent yourself, if you’re not ready to go to trial. That’s what the law says. [¶] . . . I don’t think you’re using it as a delay tactic, but often defendants try, and that’s why the law states what it does state.”
The prosecutor requested defendant’s witness list of the 30 or 40 witnesses defendant wanted to call. The court replied that counsel needed to select a new trial date and asked defendant how much time he needed to get ready for trial if he was going to represent himself. Lawler noted defendant was requesting in propria persona status and a continuance. The trial court replied that it was denying defendant’s Faretta request but was willing to continue the trial, and asked Lawler when she would be ready for trial. Lawler said that in light of the new discovery and need to interview additional witnesses, she needed a few weeks, but defendant did not want to waive time. Lawler added she would be in trial through Friday, the last day to begin the trial.
Defendant asked the court why it was denying his Faretta motion. The court stated that, as stated before, “The law is clear that you have an absolute right to represent yourself, provided it’s not going to delay the trial. [¶] . . . I’m not going to grant you your motion at the present time with you asking for more time. That’s why I’m denying your motion . . . . [¶] Now, if, in the future, when we pick our new date you want to represent yourself, then I will give serious consideration to that. But I’m not going to do it today when you’re asking for the continuance.”
Defendant asked the court if, after it granted a trial continuance, the court could then grant that same day his Faretta motion. The court responded that it would not do so because the court wanted defendant first to discuss the discovery and his case with Lawler and have her arrange to subpoena the 30 or 40 witnesses, since it would take less time if she did it.
The court then discussed with counsel continuing the trial. Defendant agreed to a three-week waiver of his speedy trial rights. The trial was continued to January 25, 2006, with a last day of February 6. Defendant indicated he objected to waiving time but had no choice because his attorney was not prepared for trial. The trial court later continued the trial to March 13, 2006. Trial began the next day.
Timeliness of Faretta Motion
Under Faretta, supra, 422 U.S. at pp. 834-835, a defendant has a constitutional right of self-representation. However, “the right is absolute only if asserted a reasonable time before trial begins; self-representation motions made after this time are addressed to the trial court’s sound discretion. [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 809.) Under the “federal rule,” Faretta motions are timely if a jury has not been impaneled. (People v. Burton (1989) 48 Cal.3d 843, 853-854 (Burton).) The California Supreme Court, however, in Burton, held the defendant’s Faretta motion was untimely even though it was brought before the jury was impaneled.
In discussing when a Faretta motion is timely, the California Supreme Court in People v. Clark (1992) 3 Cal.4th 41, 99 (Clark), noted that there is no “particular time at which a motion for self-representation is considered untimely, other than that it must be a reasonable time before trial. [Citations.] Nor, despite invitations to do so, have we adopted a rigid rule that any Faretta motion made before the actual commencement of trial is deemed timely. [Citation.]” (Clark, supra, at p. 99, citing People v. Windham (1977) 19 Cal.3d 121, 128; see also People v. Bradford (1997) 15 Cal.4th 1229, 1365.)
In Clark, the case was on the trailing calendar when the defendant made a Faretta motion. Our high court found that because the Faretta motion was made on the eve of trial, the trial court had discretion to deny the motion. (Clark, supra, 3 Cal.4th at pp. 99-100.) In People v. Ruiz (1983) 142 Cal.App.3d 780, the court also concluded the defendant’s Faretta motion, which was brought six days before trial, was untimely. (Id. at p. 791.)
Here, defendant’s Faretta motion was untimely because it was made on the day trial was scheduled to begin, January 11, 2006, which was only two days before expiration of the time to begin the trial, unless defendant waived his right to a speedy trial. Even though defendant’s Faretta motion was untimely, this did not necessarily foreclose him from prevailing on his motion. The California Supreme Court stated in Windham that “Our imposition of a ‘reasonable time’ requirement should not be and, indeed, must not be used as a means of limiting a defendant’s constitutional right of self-representation. We intend only that a defendant should not be allowed to misuse the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice. For example, a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request.” (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5.)
Here, there was reasonable cause for defendant’s lateness in bringing his Faretta motion. The trial court in the instant case acknowledged that defendant was not bringing his motion as a delaying tactic. Right after the court denied defendant’s Marsden motion, defendant immediately brought his Faretta motion because he was dissatisfied with his attorney, the court would not appoint a new attorney, and he believed he could do a better job representing himself.
In Windham, the court explained that when there is reasonable cause for lateness of the request, “the motion for self-representation is addressed to the sound discretion of the trial court which should consider relevant factors such as whether or not defense counsel has himself indicated that he is not ready for trial and needs further time for preparation.” (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5.) When some delay may be necessary whether or not the defendant’s Faretta motion is granted, “as defense counsel himself seeks a continuance for the purpose of further trial preparation it would be illogical to deny a motion for self-representation under such circumstances simply because the motion is made in close proximity to trial.” (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5.)
Here, although defense counsel initially said she was ready for trial, she later acknowledged during the Marsden and Faretta hearings that she actually was not ready and requested a two-week continuance in order to prepare for trial. In addition, defense counsel was unavailable to try the case for several days because she was trying another case. The prosecution also requested at least a two-day continuance to call his witnesses. This was the same reason defendant told the court he could not try the case the day of his Faretta motion and therefore needed a continuance. A continuance was necessary regardless of whether defendant’s Faretta motion was granted. Although defendant’s motion was untimely, denial of the motion based solely on defendant’s need for a continuance was an abuse of discretion.
According to our high court in Windham, when the trial court exercises its discretion in ruling on an untimely Faretta motion, the trial court should consider the following factors: “[1] the quality of counsel’s representation of the defendant, [2] the defendant’s prior proclivity to substitute counsel, [3] the reasons for the request, [4] the length and stage of the proceedings, and [5] the disruption or delay which might reasonably be expected to follow the granting of such a motion.” (People v. Windham, supra, 19 Cal.3d at p. 128.) The record indicates the trial court failed to weigh these factors and inappropriately denied defendant’s Faretta motion on the sole ground that defendant was not ready to go to trial on January 11.
Furthermore, in weighing the Windham factors, we conclude the Faretta motion should have been granted. Defendant’s reason for requesting propria persona status was valid. He wanted to represent himself because he was dissatisfied with his representation; the court had just denied his Marsden motion for a new attorney; and defendant believed he could represent himself better than his current attorney. Regardless of whether his attorney had provided adequate representation, defendant was entitled to represent himself since, as the trial court found, he was not inappropriately seeking in propria persona status simply as a delaying tactic and the trial was going to be continued even if his motion was denied.
The length and stage of the proceedings therefore also favored granting the motion. It is clear from the record that both the prosecutor and defense counsel were not ready to try the case and the trial court intended to continue the trial regardless of whether the court granted defendant’s Faretta motion. Right after denying defendant’s motion, the court continued the trial two weeks and later continued it an additional seven weeks. The case had not been pending long. Counsel were not ready to try the case and defendant indicated he was willing to try the case himself as soon as he got his witnesses. Therefore, any anticipated delay arising after granting defendant’s Faretta motion was insignificant since the trial was going to be continued anyway.
The trial court abused its discretion in denying defendant’s Faretta motion based on the erroneous assumption that, because defendant said he needed a continuance, the motion must be denied. This was not a valid basis for denying the motion, when the court anticipated continuing the trial regardless of whether defendant represented himself. Furthermore, the trial court failed to consider and weigh other pertinent Windham factors.
We also reject the People’s contention that the trial court correctly denied defendant’s Faretta motion because defendant failed to make an unequivocal request for self-representation. The People argue: It “seemed to be a vacillation between requests for counsel and for self-representation.” In order to invoke the constitutionally mandated right of self-representation, a criminal defendant must unequivocally assert that right within a reasonable time prior to the commencement of the trial. (People v. Lawley (2002) 27 Cal.4th 102, 149, People v. Windham, supra, 19 Cal.3d at p. 128.)
Here, there was no vacillating. Defendant made it clear during his Marsden and Faretta motions that he was dissatisfied with his attorney’s representation and, if he could not have a new attorney, he wanted to represent himself because he believed he could do a better job. He complained that Lawler and his previous attorneys had been inattentive and had not followed up on necessary discovery. Defendant also believed Lawler was unprepared for trial. The record shows that defendant truly desired to represent himself (People v. Marshall (1997) 15 Cal.4th 1, 23), and thus his request to represent himself was unequivocal.
Harmless error
While we conclude the trial court abused its discretion in denying defendant’s Faretta motion, such error was harmless.
While a trial court’s error in denying a timely motion to represent oneself is automatically reversible (People v. Joseph (1983) 34 Cal.3d 936, 945-948), when the motion is untimely, we apply the harmless error standard, i.e., whether it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (People v. Nicholson (1994) 24 Cal.App.4th 584, 594-595; People v. Watson (1956) 46 Cal.2d 818, 835-836.)
Here, as discussed above, defendant’s Faretta motion was untimely. We therefore apply the Watson harmless error analysis and conclude there would not have been a result more favorable to defendant had he represented himself.
We recognize that “a defendant who represents himself virtually never improves his situation or achieves a better result than would trained counsel.” (People v. Rivers (1993) 20 Cal.App.4th 1040, 1051, citing Faretta, 422 U.S. at p. 834.) As we explained in Rivers: “The analysis is therefore necessarily different from that used in evaluating Marsden error, in which case it must generally be presumed that a new lawyer would have provided better representation than the challenged attorney. The United States Supreme Court has also pointed out that the ‘core’ of the Faretta right is the right ‘to preserve actual control over the case he [defendant] presents to the jury.’ [Citation.]” (Rivers, at p. 1052, quoting McKaskle v. Wiggins (1989) 465 U.S. 168, 178.)
Here, the record shows that defendant was represented by competent counsel. During the Marsden hearing, before the Faretta motion, defendant’s attorney established that she had been diligent in representing defendant and had considered and responded to many of defendant’s requests and concerns. Because Lawler established she had provided competent representation, the trial court denied defendant’s Marsden motion, and defendant does not challenge this ruling on appeal. It is thus improbable that defendant would have been more successful representing himself.
A reasonable inference can also be made that defendant was satisfied with his attorney’s representation following the trial court’s denial of his Faretta motion. The trial court told defendant, when it denied the Faretta motion, that the motion was denied without prejudice and could be renewed after Lawler had subpoenaed all of the trial witnesses and defendant was ready to go to trial. Defendant did not renew his Faretta motion, thus indicating he was satisfied with his representation.
It is thus inconceivable that defendant, representing himself, would have achieved a more favorable result. Any interference with his right of self-representation was not substantial and not prejudicial.
3. Sufficiency of Evidence of Burglary
Defendant contends there was insufficient evidence of burglary since there was no evidence that, when he entered Hoppe’s home, defendant intended to commit a theft or stalk Hoppe.
A. Standard of Review
Our review of any claim of insufficiency of the evidence is limited: “[T]he reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Valdez (2001) 89 Cal.App.4th 1013, 1016.) If the evidence presented is subject to differing inferences, the reviewing court must assume that the trier of fact resolved all conflicting inferences in favor of the prosecution. (Jackson v. Virginia (1979) 443 U.S. 307, 326.) A reviewing court is precluded from making its own subjective determination of guilt. (Id. at p. 319, fn. 13.) If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
B. Burglary
A person who enters a residence with the intent to steal or commit any felony is guilty of first degree burglary. (§§ 459, 460.) The intent element must be present at the time of entry. (People v. Sparks (2002) 28 Cal.4th 71, 85, fn. 17; People v. Riel (2000) 22 Cal.4th 1153, 1204.) The intent element “‘“is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence.” [Citation.]’ [ Citation.]” (People v. Holt (1997) 15 Cal.4th 619, 669.) The intent element is proved “‘[w]here the facts and circumstances of a particular case and the conduct of the defendant reasonably indicate his purpose in entering the premises is to commit larceny or any felony . . . .’” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.) “Whether the entry was accompanied by the requisite intent is a question of fact for the jury.” (Ibid.)
The People argued at trial that when defendant entered Hoppe’s home he had the intent to either commit larceny (§ 484) or the felony of stalking (§ 646.9).
C. Larceny
Defendant argues there was insufficient evidence defendant intended to commit larceny when he entered Hoppe’s home. We agree.
An intent to steal may be inferred from an unlawful entry without reasonable explanation of the entry (People v. Jordan (1962) 204 Cal.App.2d 782, 786); from flight after being discovered (People v. Frye (1985) 166 Cal.App.3d 941, 947; People v. Lopez (1967) 249 Cal.App.2d 93, 98); and where the defendant is a stranger and enters a home at a late hour, without permission, and without announcing his intent. (People v. Swenson (1938) 28 Cal.App.2d 636, 639-640.) The intent to steal may be inferred from the totality of the facts and circumstances. (Frye, supra, at p. 947.) Where the circumstances of a particular case and the conduct of the defendant reasonably indicate that his purpose in unlawfully entering a home is to commit larceny, a verdict of guilty of the crime of burglary will not be disturbed on appeal. (Swenson, supra, at pp. 639-640.)
Here, the circumstances in this case and the conduct of defendant do not reasonably indicate that defendant’s purpose in entering Hoppe’s home was to commit larceny. Defendant did not surreptitiously enter Hoppe’s home in her absence. Rather, before entering, he attempted to get Hoppe’s attention by noisily knocking on Hoppe’s front and back doors and by throwing rocks at her window.
Defendant also did not flee upon being discovered. Rather he forced his way in, knowing Hoppe was there. Upon entering, he remained there after being told to leave. In addition, he did not enter without announcing his intent. To the contrary, he made quite clear the reason for his presence, and it was not to steal. He repeatedly stated that he was going to kill himself in Hoppe’s home. Even when construing the evidence in favor of the prosecution, we conclude there are no facts or circumstances that reasonably indicate defendant’s purpose, when entering Hoppe’s home, was to commit larceny.
The People argue that evidence that defendant stole Hoppe’s ATM and credit cards and withdrew $300 from one of her accounts was sufficient to establish defendant intended to steal from Hoppe when he entered her home. We disagree. There is no evidence that when defendant entered Hoppe’s home, he intended to steal anything. The evidence established the contrary; that this was purely a crime of opportunity. Defendant entered Hoppe’s home despondent and crazed over Hoppe’s rejection of him and termination of their relationship. A week before, Hoppe had told him she had another boyfriend and her relationship with him was over. The evidence established that defendant forced entry into defendant’s home for no reason other than to get Hoppe’s attention and sympathy by declaring he was going to kill himself in her home.
After Hoppe rushed out of her home with her boys and it was apparent defendant was not going to achieve his intended objective of winning Hoppe’s sympathy, defendant noticed Hoppe’s purse in the living room and formed the new intent of taking her ATM and credit cards and heading for the casino. Under these circumstances, there is no evidence, nor can a reasonable inference be made, that defendant intended steal when he entered Hoppe’s home in a crazed rage, intent on getting Hoppe’s attention and winning her affection by claiming he was going to kill himself.
The trial court acknowledged at the preliminary hearing there was no evidence of intent to steal at the time of defendant’s entry into Hoppe’s home, and we likewise conclude there was none at defendant’s trial.
D. Stalking
The People contend that defendant entered Hoppe’s home with the intent to commit the felony of stalking under section 646.9. Defendant contends there was insufficient evidence of the requisite stalking element, namely a “credible threat” with the intent to place Hoppe in fear for her safety or the safety of her children.
Stalking consists of (1) repeatedly following or maliciously harassing another person; (2) making a credible threat; (3) threatening with the intent to place that person in reasonable fear of her safety, or the safety of her family. (§ 646.9, subd. (g).) (See People v. Ewing (1999) 76 Cal.App.4th 199, 210, citing People v. Carron (1995) 37 Cal.App.4th 1230, 1238.)
The testimony of Hoppe supports a jury finding of each of the elements of the crime of stalking. Ms. Hoppe testified to substantial instances of harassment. Section 646.9, subdivision (e) defines “harass” to include “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.” Hoppe testified that after June 2004, defendant accused her of sleeping with other men including an ex-boyfriend, the husbands of neighbors, and her boss. She also testified that defendant called her aunt in Massachusetts and her former in-laws, making strange statements to them regarding Hoppe’s actions. Hoppe testified that on one occasion defendant came to her house at night and examined her attic and looked in her back yard, apparently looking for a neighbor with whom she was allegedly having a relationship. He also contacted a woman at Hoppe’s job regarding his concern that Hoppe was having a relationship with her employer.
Hoppe testified that defendant’s actions placed her in reasonable fear for herself and for her children. On one occasion he drove a Suburban to her house and over her lawn and threatened to ram her house unless she came out to talk to him. At his insistence she came out of the house. During that same time he called her four or five times a day.
When Hoppe left in June 2005 to attend the funeral of her aunt in Ohio, defendant called her 150 to 200 times, during which he stated he hated her and that he did not care what happened to her. During the time she was gone defendant apparently stayed in Hoppe’s home and made many of the calls to her from Hoppe’s own phone even though she had told him not to go into the house.
While in Ohio Hoppe contacted an old friend. When she told defendant that she had begun a serious relationship with that man, defendant was angry. After she told him of her new relationship, defendant e-mailed her, called her ex-husband, called her house, and her friend in Ohio, leaving multiple messages.
On July 5, 2005, defendant came to Hoppe’s home, and eventually forced entrance after breaking the lock on the screen door. He came into the house. His head was shaved. He ignored Hoppe’s order to leave the house, saying that he intended to kill himself in her house “tonight.” Hoppe testified that she was terrified as to what he might do to her or her children. She immediately aroused her children from bed, left her house with the children, and called 911 from a friend’s home.
The actions of defendant that evening, in light of the bizarre actions for the few weeks prior to that evening, constituted harassment within the meaning of section 646.9, subdivision (e). That section provides that “harassment” includes engaging in “conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.” The contacts defendant made with Hoppe’s neighbors, his insistent telephone calls, his use of her home while she was gone, driving his car onto her lawn and insisting upon her coming out from the house, were evidence of harassment.
Section 646.9 requires that the defendant not only harass the victim, but must make a credible threat with the intent to place that person in fear for her safety or the safety of her children. Subdivision (g) of section 646.9 defines “credible threat” to include conduct, verbal or written, 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 family, “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.”
In People v. Falck (1997) 52 Cal.App.4th 287, 297-298, the court concluded that it is not necessary to prove that the defendant intended to carry out the threat as long as the threat caused the victim to reasonably fear for her safety and the safety of her children. (See also People v. Carron, supra, 37 Cal.App.4th at pp. 1238-1240; People v. Halgren (1996) 52 Cal.App.4th 1223, 1231.) In this case, defendant’s bizarre conduct including the truck on the lawn, the 150-200 telephone calls while Hoppe was gone, breaking into Hoppe’s house while she was gone, and breaking into her house in the night with a shaved head and threatening to kill himself, was more than enough to place a reasonable person in fear for her safety and for the safety of her children.
The testimony of Hoppe provided substantial evidence upon which the jury could conclude that defendant was guilty of felony stalking. His repeated calls, contacts with neighbors about her boyfriends, calls to her place of work, use of her house while she was gone, calls to her aunt and former husband, all sustained defendant’s conviction.
4. Disposition
The judgment is affirmed.
We concur: Richli, Acting P.J. Miller, J.