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People v. Countee

Court of Appeals of California, Second Appellate District, Division Four.
Nov 26, 2003
No. B164876 (Cal. Ct. App. Nov. 26, 2003)

Opinion

B164876.

11-26-2003

THE PEOPLE, Plaintiff and Respondent, v. LARRY COUNTEE, Defendant and Appellant.

Edward J. Haggerty under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.


Larry Countee appeals from his conviction by jury trial of attempted murder (Pen. Code, § 664/187), arson (§ 451, subd. (b)); stalking (§ 646.9, subd. (b)), and making a criminal threat (§ 422). He contends the trial court should have instructed the jury (1) on the lesser included offense of attempted voluntary manslaughter based on heat of passion, and (2) on the elements of the threatened crime. Appellant challenges sections 422 and 646.9 as unconstitutionally vague. He argues his right to due process was violated by the prosecutions failure to preserve copies of a phone message he left after the arson fire. Finally, he contends the sentence on the criminal threat count should have been stayed pursuant to section 654. We find no basis for reversal and affirm.

All statutory references are to the Penal Code unless otherwise indicated.

FACTUAL AND PROCEDURAL SUMMARY

Appellant moved in with Dolores Hubbard, a former coworker, after he lost his job. He began drinking heavily. During these episodes, he was verbally abusive and accused Hubbard of having relationships with others. Hubbard obtained a restraining order to remove appellant from her apartment after appellant became enraged at her. Appellant violated the restraining order, telephoning Hubbard at home and at work. He accused her of seeing others and asked to return.

In January 2000, appellant gained entry into Hubbards apartment through a ruse involving another woman. He grabbed Hubbard by the throat, saying that he did not want to hurt her. He just wanted to talk to her and give her a hug. Hubbard was frightened and reported the incident to the police. Two days later, appellant went to Hubbards apartment and demanded entry. Hubbard called the police and appellant left. On February 6, 2000, appellant again went to Hubbards apartment and demanded entry. Hubbard refused and made another police report.

Appellant harassed Hubbard by telephone calls, and by making a false report to the police that she had stabbed him. This incident led the police to go to Hubbards apartment and to handcuff her. They released her after she showed the officers the restraining order.

In March 2000, Hubbard received a telephone call from appellant. When asked what appellant said, Hubbard testified: "He said that if its the last thing that he does, he was gonna kill me." Appellant also said: "God as my witness, Im going to be committed to the jail for killing you." Hubbard reported this call to the police because appellant "had never threatened me like that at all." She said the call "shook me to the core" and that she had never been "really and truly paranoid scared of him until then." She "totally" believed that appellant meant the threat.

Frightened, on the night of March 16, Hubbard barricaded her front door with a piece of exercise equipment before going to bed. She woke at 12:30 a.m. and smelled gasoline. Believing the odor came from a nearby fast-food restaurant, she went back to sleep. She woke a short time later and decided to check the doors. Hubbard found the front door in flames, and fled to the balcony. The front door was the only entrance/exit to the apartment. Police officers responded to her screams for help, and found the fire had spread into the living room when they gained entry. They freed Hubbard, who was not injured.

Appellant was convicted by jury of attempted murder (§ 664/187); arson (§ 451, subd. (b)); stalking (§ 646.9, subd. (b)), and making a criminal threat (§ 422). He filed a timely appeal.

DISCUSSION

I

Appellant argues the trial court had a sua sponte duty to instruct the jury on the lesser included offense of attempted voluntary manslaughter on count 1, the attempted murder charge. Appellant and respondent agree that attempted voluntary manslaughter is a lesser included offense of attempted murder. (People v. Williams (1988) 199 Cal.App.3d 469, 475.)

"[E]ven absent a request, and even over the parties objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 118.) "[T]he existence of `any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration by the jury. ([People v.]Flannel [(1979)] 25 Cal.3d 668, 684, fn. 12, original italics; see also People v. Bacigalupo (1991) 1 Cal.4th 103, 127 [2 Cal.Rptr.2d 335, 820 P.2d 559]; People v. Ramos (1982) 30 Cal.3d 553, 582 [180 Cal.Rptr. 266, 639 P.2d 908].) `Substantial evidence in this context is `"evidence from which a jury composed of reasonable [persons] could . . . conclude[]" that the lesser offense, but not the greater, was committed. (Flannel, supra, at p. 684, quoting People v. Carr (1972) 8 Cal.3d 287, 294 [104 Cal.Rptr. 705, 502 P.2d 513]; accord, [People v .] Barton [1995] 12 Cal.4th 186, 201, fn. 8 [`evidence that a reasonable jury could find persuasive].)" (People v. Breverman (1998) 19 Cal.4th 142, 162.)

"An unlawful killing with malice is murder. (§ 187.) Nonetheless, an intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation (§ 192, subd. (a)) . . . . (In re Christian S . (1994) 7 Cal.4th 768 [30 Cal.Rptr.2d 33, 872 P.2d 574].) Only these circumstances negate malice when a defendant intends to kill. (People v. Barton (1995) 12 Cal.4th 186, 199 [47 Cal.Rptr.2d 569, 906 P.2d 531].)" (People v. Lee (1999) 20 Cal.4th 47, 59.)

The Supreme Court in Lee explained the role of provocation in voluntary manslaughter: "[T]he factor which distinguishes the `heat of passion form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim (see In re Thomas C. (1986) 183 Cal.App.3d 786, 798 ), or be conduct reasonably believed by the defendant to have been engaged in by the victim. (See People v. Brooks (1986) 185 Cal.App.3d 687, 694 ; . . .) The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (People v. Berry (1976) 18 Cal.3d 509, 515 [134 Cal.Rptr. 415, 556 P.2d 777]; People v. Valentine (1946) 28 Cal.2d 121, 138-139 .) `Heat of passion arises when "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." (People v. Barton, supra, 12 Cal.4th at p. 201.)" (People v. Lee , supra, 20 Cal.4th at p. 59, italics added.)

Appellant claims there was substantial evidence of heat of passion generated by the collapse of his relationship with Hubbard, Hubbards rejection of him, and her refusal to take his repeated telephone calls. The evidence cited by appellant fails to meet the objective standard. The evidence establishes that appellant left many angry, threatening messages and that he was extremely upset by the end of his relationship with Hubbard. Hubbard terminated the relationship some two months before the fire at her apartment. She did not engage in any provocative conduct to warrant heat of passion voluntary manslaughter instructions. (People v. Lujan (2001) 92 Cal.App.4th 1389, 1413-1414 [no provocation shown where wife separated from defendant, filed for divorce, and enlisted law enforcement assistance in stopping defendant from stalking and harassing her].) In People v. Hyde (1985) 166 Cal.App.3d 463, the court rejected the argument that extreme jealousy and preoccupation with a former lover support instructions on voluntary manslaughter based on heat of passion.

Moreover, the circumstances of the crime here are consistent with premeditation. Gasoline was thrown on Hubbards apartment door and lit. Voluntary manslaughter based on heat of passion requires that the defendant act without deliberation and reflection, and from such passion rather than from judgment. (People v. Lee, supra, 20 Cal.4th at p. 59.) Finally, the "ordinarily reasonable person of average disposition" (People v Lee , supra, 20 Cal.4th at p. 59), would not react to the termination of a relationship by trying to murder the former lover by setting fire to that persons apartment. (People v. Lujan , supra, 92 Cal.App.4th at p. 1415.) As in Lujan, the conduct of appellant "does not constitute conduct by a reasonable person of average disposition; it is the actions of an obsessed stalker." (Lujan, at p. 1415.) The trial court was not required to instruct on attempted voluntary manslaughter as a lesser included offense of attempted murder.

II

On the charge of making a criminal threat, appellant argues the trial court had a sua sponte duty to instruct the jury on the elements of the threatened crime. He contends the failure to do so is reversible error per se.

The jury was given a modified version of the standard pattern instruction on criminal threats, CALJIC No. 9.94: ". . . [¶] Every person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which threat, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, is guilty of a violation of Penal Code section 422, a crime."

The instruction continues with definitions of key terms: "[`Great bodily injury means significant or substantial bodily injury or damage; it does not refer to trivial, insignificant, or moderate injury or harm.] [¶] . . . [¶] [`Electronic communication device includes, but is not limited to, telephones, and cellular telephones.] [¶] The term `sustained fear means a period of time that extends beyond what is momentary, fleeting, or transitory." CALJIC No. 9.94 explains: "There are different degrees of unconditionality. A threat which may appear conditional on its face can be unconditional under the circumstances. Conditional threats are true threats if their context reasonably conveys to the victim that they are intended. [¶] The word `immediate means that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met."

CALJIC No. 9.94 closes with the elements the prosecution must prove to establish a violation of section 422: "In order to prove this crime, each of the following elements must be proved: [¶] 1. A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person; [¶]. The person who made the threat did so with the specific intent that the statement be taken as a threat; [¶] 3. The threat was contained in a statement that was made verbally, in writing, or by means of an electronic communication device; [¶]4. The threatening statement on its face, and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat; and [¶] 5. The threatening statement caused the person threatened reasonably to be in sustained fear [for [her] own safety] [or] [for [her] immediate familys safety.] [¶] It is immaterial whether the person who made the threat actually intended to carry it out."

Section 422 reads in full: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison. [¶] For the purposes of this section, `immediate family means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household. [¶] `Electronic communication device includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. `Electronic communication has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code."

The court in People v. Butler (2000) 85 Cal.App.4th 745, rejected an argument that the trial court has a sua sponte duty to identify the crime threatened and to instruct the jury on the elements of that crime as part of the instructions on criminal threat in violation of section 422. The court reasoned that section 422 does not require that a specific crime or Penal Code violation be threatened. "It follows that no specific crime must be identified for the jury. It further follows that the court is not required to instruct the jury on the elements of any specific Penal Code violations that might be subsumed within the actual words used to communicate the threat." (Id. at pp. 755-756.)

After reviewing the legislative history and intent pertaining to the enactment of section 422, the Butler court concluded "there is no basis for concluding that before a jury may determine whether that section has been violated, a specific crime must be identified. Likewise, there is no basis for instructing the jury on the elements of the threatened crime." (Id. at p. 758.) The court held that CALJIC No. 9.94 sufficiently identified the elements of the crime the jury was required to find to convict the defendant under section 422. (Id. at p. 759.) It concluded there were two reasons why a requirement to instruct on the elements of the threatened crime would be unwise. First, punishable threats can be nonspecific and ambiguous, "so long as they reasonably may be construed, under the circumstances, as threatening death or great bodily injury." (Ibid.) The court concluded that it would be almost impossible to identify a specific Penal Code violation and to instruct on its elements for culpable nonspecific threats. (Ibid.) Second, the Butler court expressed concern that an instruction on the elements of the threatened crime would conflict with the elements for a violation of section 422, because the criminal threat is a general intent crime, while threatened crimes may require specific intent. (Id. at pp. 759-760.) The Butler court also observed that the threatened crime has an actus reus element, using the example of assault with a deadly weapon, which requires the defendant to commit an assault. But section 422 does not require the person making the threat to "make any attempt to actually carry out the threat, let alone complete the act." (Id. at p. 760.) The tension between these requirements raised the danger of jury confusion. (Ibid.) The Butler court recognized that there might be some circumstances in which an instruction on the elements of a threatened crime might be helpful to a jury, and concluded that the parties were required to request any supplemental instructions to CALJIC No. 9.94. (Ibid.)

We agree with the reasoning in Butler, and conclude the trial court did not have a sua sponte duty to instruct on the elements of the threatened crime. In addition, we observe that here appellant threatened to kill Hubbard — an unambiguous and specific threat to commit murder. There was no instructional error.

III

Appellant challenges the constitutionality of both section 422 on criminal threats and section 646.9 on stalking.

The principles we apply in determining whether a criminal statute is unconstitutionally vague are well-established. "The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of `life, liberty, or property without due process of law, as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7). Under both Constitutions, due process of law in this context requires two elements: a criminal statute must `"be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt." (Walker v. Superior Court (1988) 47 Cal.3d 112, 141 [253 Cal.Rptr. 1, 763 P.2d 852]; see also Kolender v. Lawson (1983) 461 U.S. 352, 357 [75 L.Ed.2d 903, 908-909, 103 S.Ct. 1855].)" (Williams v. Garcetti (1993) 5 Cal.4th 561, 567.)

"The starting point of our analysis is `the strong presumption that legislative enactments "must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language." (Walker v. Superior Court, supra, 47 Cal.3d at p. 143.)" (Williams v. Garcetti, supra, 5 Cal.4th at p. 568.)

"`[A] statute will not be held void for vagueness at the behest of a defendant whose conduct falls clearly within its bounds. (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 492 . . . .) (People v. Camillo (1988) 198 Cal.App.3d 981, 996.)" (People v. Ervin (1997) 53 Cal.App.4th 1323, 1328-1329.)

Appellant argues that section 422 is unconstitutionally vague because it defines a criminal threat as one which threatens the commission of a crime "`which will result in death or great bodily injury to another person." He contends that this language requires law enforcement officers to evaluate the nature of threats and to determine, on a case by case basis, whether the threat meets this standard. Appellant asserts that it is thus unclear to the general public which threats are illegal.

Section 422 makes it a crime to "willfully threaten[] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety . . . ."[ 2]

"[T]he present version of section 422 was enacted after a former version of section 422 had been held unconstitutional by this court in People v. Mirmirani (1981) 30 Cal.3d 375 [178 Cal.Rptr. 792, 636 P.2d 1130]." (People v. Toledo (2001) 26 Cal.4th 221, 228.) "In People v. Mirmirani, supra, 30 Cal.3d 375, this court held former sections 422 and 422.5 of the Penal Code void for vagueness in violation of the due process clause of section 15 of article I of the California Constitution. (See People v. Mirmirani, supra, 30 Cal.3d at pp. 378, 381-388 (plur. opn. of Bird, C. J.); id. at p. 388 (conc. opn. of Newman, J.).) . . . [T] he plurality opinion in Mirmirani stated that, `[a]lthough the Legislature may . . . penalize threats without offense to the First Amendment to the United States Constitution, `even though they are pure speech, statutes which attempt to do so must be narrowly directed only to threats which truly pose a danger to society. (People v. Mirmirani, supra, 30 Cal.3d at p. 388, fn. 10 (plur. opn. of Bird, C. J.).)" (Toledo, supra, 26 Cal.4th at pp. 228-229.)

The Supreme Court in Mirmirani, cited Watts v. United States (1969) 394 U.S. 705 [89 S.Ct. 1399, 22 L.Ed.2d 664], and United States v. Kelner (2d Cir. 1976) 534 F.2d 1020. "Following the decision in People v. Mirmirani, supra, 30 Cal.3d 375, the Legislature repealed former sections 422 and 422.5 (Stats. 1987, ch. 828, § 28, p. 2587) and, shortly thereafter, adopted in their place the applicable provisions set forth in the present version of section 422 (Stats. 1988, ch. 1256, § 4, pp. 4184-4185), which, among other changes, incorporate specific language from United States v. Kelner, supra, 534 F.2d 1020, 1027, to describe and limit the type of threat covered by the statute." (People v. Toledo, supra, 26 Cal.4th at p. 229.)

Appellants threat to kill Hubbard clearly comes within section 422. There can be no doubt that a threat to kill another, when stated under circumstances satisfying the other requirements of the statute, constitutes a violation of section 422. Appellants language was not vague or ambiguous. His right to due process was not violated. (People v. Ervin, supra, 53 Cal.App.4th at pp. 1328-1329.)

Appellants second constitutional challenge is to section 646.9, the stalking statute. He contends that statute is unconstitutionally vague because it provides insufficient guidelines for law enforcement to determine what behavior amounts to harassment. At the time of the crime in 2000, section 646.9, subdivision (a) provided in pertinent part: "Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, . . . is guilty of the crime of stalking . . . ." Specifically, appellant cites subdivision (e) of section 646.9, which defines "harasses" to mean engaging 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. . . ." (Italics added.) Appellant argues that the emphasized phrase is unconstitutionally vague. He analogizes to an anti-loitering statute found unconstitutionally vague in City of Chicago v. Morales (1999) 527 U.S. 41.

Substantially the same challenge was made and rejected in People v. Tran (1996) 47 Cal.App.4th 253, 260. As we have discussed, if the conduct of a defendant clearly comes within the scope of a criminal statute, he cannot complain that the statute is unconstitutionally vague. (People v. Ervin, supra, 53 Cal.App.4th at pp. 1328-1329.) Here, the record establishes that appellant repeatedly violated a restraining order by telephoning Hubbard at all hours of the day and night and by going to her apartment. He used ruses to obtain entry, and had Hubbard arrested on a false report that she had stabbed him. This conduct cannot have served a legitimate purpose. It falls squarely within the stalking statute. There was no constitutional violation.

IV

Appellant asserts a violation of his right to due process because of the prosecutions failure to preserve an audiotaped copy of a telephone message he left with Hubbards employer within a day or two after the fire. Esther Garcia testified that shortly after the fire, appellant telephoned Pioneer Magnetics, where both she and Hubbard were employed. Ms. Garcia listened to the message appellant left on the occasion. She testified that appellant said: "[H]ow was he supposed to know she [Hubbard] was there? Her car was not in front."

The only relevance of this statement to appellants defense was as a statement of past mental state. Under Evidence Code section 1251, this statement is admissible only if the declarant is unavailable. Appellant exercised his Fifth Amendment right not to testify. "Defendant was certainly not unavailable to himself. Although he possessed, and exercised, a privilege not to testify, the choice was his. He could have testified had he so elected. As stated in the Comment of the Assembly Committee on the Judiciary to Evidence Code section 240, the section defining the phrase `unavailable as a witness, `if the out-of-court statement is that of the party himself, he may not create "unavailability" under this section by invoking a privilege not to testify." (People v. Edwards (1991) 54 Cal.3d 787, 819.) We find no basis for reversal in the failure to preserve the tape recording.

Evidence Code section 1251 provides: "Subject to Section 1252, evidence of a statement of the declarants state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if: [¶] (a) The declarant is unavailable as a witness; and [¶] (b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation."

V

Finally, appellant argues the sentence on the criminal threat count should have been stayed under section 654, which prohibits multiple punishment for the same act. Appellant argues that his actions in stalking Hubbard and in making the subsequent criminal threat to kill her constitute a continuous course of conduct with the single objective of harassing and intimidating her.

Section 654 provides: "(a) 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. [¶] (b) Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall not be granted probation if any of the provisions that would otherwise apply to the defendant prohibits the granting of probation."

As respondent points out, the two counts were based on different conduct. While the stalking count was based on appellants repeated violations of the restraining orders by telephone calls and personal visits to Hubbards apartment, the criminal threat count was based on a single telephone call made on March 15, 2000 in which appellant threatened to kill Hubbard. The evidence supports the conclusion that appellant acted with separate intent. First, while stalking her, he sought to intimidate Hubbard into resuming their relationship. When it became clear that Hubbard wanted nothing to do with him, appellant then threatened her life.

"[S]ection 654 does not apply when the evidence discloses that a defendant entertained multiple criminal objectives independent of each other. In that case, `the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendants criminal intent and objective were single or multiple. (People v. Liu [(1996)] 46 Cal.App.4th [1119,] 1135.) `A defendants criminal objective is "determined from all the circumstances and is primarily a question of fact for the trial court, whose findings will be upheld on appeal if there is any substantial evidence to support it." (People v. Porter (1987) 194 Cal.App.3d 34, 38 .) (People v. Braz (1997) 57 Cal.App.4th 1, 10 .)" (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)

Here, no section 654 issue was raised below. Since the trial court imposed separate sentences without staying one of them under section 654, we infer that it was satisfied that appellant acted with separate objectives in committing the stalking and the criminal threat. The evidence supports that conclusion. The sentence was proper.

DISPOSITION

The judgment of conviction is affirmed.

We concur: VOGEL (C.S.), P.J. and CURRY, J.


Summaries of

People v. Countee

Court of Appeals of California, Second Appellate District, Division Four.
Nov 26, 2003
No. B164876 (Cal. Ct. App. Nov. 26, 2003)
Case details for

People v. Countee

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LARRY COUNTEE, Defendant and…

Court:Court of Appeals of California, Second Appellate District, Division Four.

Date published: Nov 26, 2003

Citations

No. B164876 (Cal. Ct. App. Nov. 26, 2003)