Opinion
B229664
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. RALPH WYATT, JR., Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Paul M. Roadarmel, Lawrence M. Daniels and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GA079115)
APPEAL from a judgment of the Superior Court of Los Angeles County, Teri Schwartz, Judge. Affirmed as modified.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Paul M. Roadarmel, Lawrence M. Daniels and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Ralph Wyatt, Jr., appeals his conviction after a court trial of two counts of stalking (Pen. Code, § 646.9, subd. (a)) and three counts of first degree burglary with a person present in the residence. (§§ 459, 460.) Defendant was sentenced to six years, eight months in state prison. We modify the judgment to impose $200 in court security fees (§ 1465.8, subd. (a)(1)) and $150 in court facilities assessments. (Gov. Code, § 70373, subd. (a)(1).) We affirm the judgment in all other respects.
All further statutory references are to the Penal Code unless otherwise indicated.
II. THE EVIDENCE
We view the evidence in the light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) The victim, Ruth, was a 90-year-old woman who lived alone. Defendant resided about four blocks away. Beginning sometime before Christmas 2009, defendant broke into Ruth's house at least six times. Initially, he entered through sliding glass doors that led to her living room. On various occasions he used her bathroom, took a nap, stole $150 and watched her sleep. Once, he patted her knee and rested his hand on it while she slept. On January 23, 2010, defendant left a note on Ruth's coffee table. The note read: "I apologize for everything I have caused. I am sorry for disturbing the peace and quiet in your life. I only needed a friend or someone to care about sometimes and money for food and bus fare. I will repay you for what I took. I am really sorry. . . . I live in L.A. in tents but have family here. I'm your guardian angel. And sincerely, F. Olivderi."
Consistent with the practice adopted in the superior court, we refer to the victims by their first names. (See Taus v. Loftus (2007) 40 Cal.4th 683, 724, fn. 17 ["[W]e note that it is this court's practice to employ initials in order to protect the privacy of parties or other individuals in circumstances in which such protection is deemed appropriate," citing Cal. Style Manual (4th ed. 2000) §§ 5:9 to 5:13, pp. 179-181].)
The parties stipulated Ruth's testimony would come in by way of the preliminary hearing transcript.
Ruth testified she was "floored" by the letter. She could not believe what was happening. Ruth testified: "[My reaction to the letter] was well-felt. I looked at it and I thought 'this can't be true' and the person who writes it . . . got my name right." After Ruth found the first note, she changed the locks on her sliding doors. Ruth also called the sheriff's department. Los Angeles County Deputy Sheriff Malcolm Stewart arrived and found Ruth to be a little bit confused, upset and concerned. The sheriff's department increased patrols around Ruth's house.
On a subsequent evening, because the locks had been changed, defendant entered Ruth's house through a bathroom window. He left a soiled thong in Ruth's bathrobe pocket. Defendant knew it would be an unpleasant thing for Ruth to find. But he was upset that she had rejected him and called the police. He wanted to take their relationship to "a certain level."
On another occasion, defendant sat in Ruth's house while she slept. Defendant thought about "[H]ow [Richard Ramirez] had started out as a petty thief [but then] things escalated." He thought about how easy it would be to commit a serious crime inside her home. Defendant crept into Ruth's bedroom where she was sleeping and knelt at the foot of her bed. He was "praying for strength not to do something that he didn't want to do," which he characterized as "something more serious." Ruth felt "something in [her] panties that was not supposed" to be there. She thought she might have been dreaming. Ruth awoke to find defendant in her bedroom. Ruth told him to, "Get out."
Several days after Ruth found the first note, Deputy Stewart discovered the slats of glass in her bathroom window had been rearranged; opaque slats covered the top half of the bathroom window and clear slats covered the bottom half of the window. He also observed four equally spaced marks in the dirt under the window. He found a metal chair with similarly spaced legs five or six feet away. Deputy Stewart rearranged the window slats so that those on the bottom were opaque.
Later that day, Ruth saw defendant at the window Deputy Stewart had repaired. Defendant was wearing a black sweater and black jeans. Ruth thought defendant must be with the sheriff's department or sent by them to work on the window. When Ruth inquired, defendant told her he was with the police.
The following day, Ruth found a second note wedged into an exterior window sill. The note said: "Thank you . . . for your understanding last night when I put the bars back on the window. It took a lot of work and you scared me when you opened that door. But I was glad to see you. You're a beautiful lady, especially when you sleep. I love you . . . and would never, ever harm you. I find that you usually sleep longer and longer in peace . . . when I'm—when I massage your panties for a while. Please leave one door unlocked." The note "threw" her and she once again called the sheriff's department. The note made Ruth feel "out of it." Los Angeles County Deputy Sheriff Susana Martinez visited Ruth's residence on January 30, 2010. Deputy Martinez found that one of the bolts holding the bars in place over Ruth's bathroom window was loose.
A second victim, Carol, also lived only a few blocks from defendant's residence. Defendant left notes on Carol's bathroom floor (through an open window), in her front screen door, and in her mailbox. The notes described sexual things defendant wanted to do to her.
After comparing the notes left at the victims' homes, sheriff's deputies obtained and executed a warrant to search defendant's residence. Defendant, who was dressed all in black, confessed he had left the notes. He told the deputies he had entered Ruth's house at least six times, took a nap, used her toilet, stole money, left his underwear there and twice entered her bedroom. He said his behavior was "dictated by female attention problems, lust issues." Items found in defendant's residence—card stock, pens, highlighters—matched the notes left at the victims' homes. Defendant also showed investigators the locations of the victims' homes.
Defendant testified in his own defense. He admitted entering Ruth's home five or six times. He admitted having authored the notes. He claimed he wrote the notes but "a prolific note writer" rewrote them for him. In subsequent testimony, however, he denied leaving the notes for the victims. He admitted bringing his underwear to Ruth's house. He said it was clean underwear and he used it to wipe away possible prints. He admitted he patted or tapped Ruth while she slept, but only on the ankle, not the knee. He thought a burglar had been in her house and he patted her to see if she would move. He denied saying he wanted to take his relationship with Ruth to "the next level." He said he touched Ruth's panties, but not while she was wearing them—only when they were on top of her bed.
III. DISCUSSION
A. Stalking
Defendant argues there was insufficient evidence to demonstrate he made a credible threat with the specific intent to place Ruth in reasonable fear for her safety. We find the evidence was sufficient to support defendant's conviction. In reviewing a challenge to the sufficiency of the evidence, we apply the following standard of review: "[We] must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 432; accord, People v. Hovarter (2008) 44 Cal.4th 983, 996-997.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The California Supreme Court has held, "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient evidence to support [the conviction].'" (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755; accord, People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Section 646.9 provides in part: "(a) 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 . . . . [¶] . . . [¶] (g) For the purposes of this section, 'credible threat' means 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. . . . Constitutionally protected activity is not included within the meaning of 'credible threat.'" As explained in People v. Uecker (2009) 172 Cal.App.4th 583, 594-595, under section 646.9, criminal stalking consists of three elements: "The first element of stalking is 'willfully, maliciously, and repeatedly follow[ing] or willfully and maliciously harass[ing] another person.' (§ 646.9, subd. (a).) . . . [¶] The second element is 'mak[ing] a credible threat,' which includes a threat implied by a pattern of conduct or a combination of verbal and written communicated statements and conduct. (§ 646.9, subds. (a), (g).) . . . [¶] The third element of stalking is intending to place the victim in reasonable fear for his or her safety." (Accord, e.g., People v. Ewing (1999) 76 Cal.App.4th 199, 210; People v. Carron (1995) 37 Cal.App.4th 1230, 1238.)
The Court of Appeal for the First Appellate District has explained: "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, Carron, [supra,]37 Cal.App.4th [at pp.] 1238-1240.) . . . [I]n determining whether a threat occurred, the entire factual context, including the surrounding events and the reaction of the listeners, must be considered. (See U.S. v. Orozco-Santillan [(1990)] 903 F.2d [1262,] 1265[, disapproved on another point in U.S. v. Hanna (9th Cir. 2002) 293 F.3d 1080, 1088, fn. 5].)" (People v. Falck (1997) 52 Cal.App.4th 287, 297-298; accord, People v. Uecker, supra, 172 Cal.App.4th at p. 598, fn. 10.) As to the intent to place the victim in fear, the Falck court further explained: "Intent . . . can be inferred from circumstantial evidence. (§ 21, subd. (a).[]) Indeed, it is recognized that '[t]he element of intent [to cause fear in the victim] is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence.' (People v. Kuykendall (1955) 134 Cal.App.2d 642, 645; see also People v. Lyles (1957) 156 Cal.App.2d 482, 486.)" (People v. Falck, supra, 52 Cal.App.4th at p. 299; see also, e.g., People v. Holt (1997) 15 Cal.4th 619, 669-670 [burglary]; In re Ernesto H. (2004) 125 Cal.App.4th 298, 313 [intent to influence performance of official duties]; People v. Pre (2004) 117 Cal.App.4th 413, 420 [torture].)
"The intent or intention is manifested by the circumstances connected with the offense." (§ 21, subd. (a).)
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In People v. Uecker, supra, 172 Cal.App.4th at pages 594-595, the Court of Appeal for the Third Appellate District found substantial evidence of stalking where the defendant sent written notes and made verbal statements to the victim, a woman, every work day for seven months. The defendant implied he would do whatever it took to get the victim to go out with him. He positioned himself where he could see the victim coming and going from work. The defendant persisted despite the victim's attempts to avoid him. There was no sign the defendant's conduct would abate. The victim feared for her safety. Similarly, in People v. Falck, supra, 52 Cal.App.4th at page 299, the Court of Appeal for the First Appellate District found substantial evidence of stalking in that the defendant insisted on maintaining contact with the victim despite her clear attempts to avoid him. He persisted despite having been warned away by the police, the court, and the victim's husband. He sent the victim sexually suggestive letters, pornographic photographs and black roses. The defendant referenced a desire to spend eternity with the victim as well as his prowess with a firearm.
Here, defendant repeatedly entered Ruth's house. He invaded her home six times in the course of one month. He entered her house while she was sleeping. He stood over her bed and touched her while she slept. He left soiled underwear in her bathrobe pocket knowing it would upset her. He tampered with her bathroom window so that he could see through it into her house. He continued to enter Ruth's home even after she changed the locks, called the sheriff's department and expressly told defendant himself to, "Get out." Defendant left a note on her coffee table in which he described himself as her "guardian angel." This first note "floored" Ruth and left her confused and upset. Defendant left a subsequent note in which he expressed his love for Ruth and described the sexual contact he had with her while she slept. Defendant identified himself as the man Ruth had spoken to a day earlier when she saw him outside her bathroom window. He made it known to Ruth that he intended to continue to enter her home while she slept. He asked her to leave a door open for him. This second note "threw" Ruth and prompted her to once again call the sheriff's department. This was substantial evidence defendant, by his repeated conduct and written communications, made a credible threat with the intent to evoke fear in Ruth.
B. Fees And Assessments
The trial court orally imposed a $40 court security fee (§ 1465.8, subd. (a)(1)) and a $30 court facilities assessment. (Gov. Code, § 70373, subd. (a)(1).) The trial court should have imposed the $40 court security fee and the $30 court facilities assessment as to each of the five counts, even if stayed. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3 [court facilities assessment]; People v. Crittle (2007) 154 Cal.App.4th 368, 370-371 [court security fee].) The judgment must be modified to impose $200 in court security fees and $150 in court facilities assessments.
IV. DISPOSITION
The judgment is modified to impose $200 in court security fees (Pen. Code, § 1465.8, subd. (a)(1)) and $150 in court facilities assessments (Gov. Code, § 70373, subd. (a)(1).) The judgment is affirmed in all other respects. Upon remittitur issuance, the clerk of the superior court is to amend the abstract of judgment and deliver a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J. We concur:
ARMSTRONG, J.
KRIEGLER, J.