People v. Faber, 081117 SUPAD, BR 053153

Docket Nº:BR 053153
Opinion Judge:RICCIARDULLI, J.
Party Name:THE PEOPLE, Plaintiff and Respondent, v. STEVEN THOMAS FABER, Defendant and Appellant.
Attorney:Miriam K. Billington for defendant and appellant Steven Thomas Faber. Douglas P. Haubert, Long Beach City Prosecutor, Randall C. Fudge, Assistant Long Beach City Prosecutor, and Nadine E. Dahdah, Deputy Long Beach City Attorney, for plaintiff and respondent People of the State of California.
Judge Panel:We concur: KUMAR, Acting P. J. RICHARDSON, J.
Case Date:August 11, 2017
Court:Superior Court of California
 
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THE PEOPLE, Plaintiff and Respondent,

v.

STEVEN THOMAS FABER, Defendant and Appellant.

BR 053153

Superior Court of California, Appellate Division, Los Angeles

August 11, 2017

Appeal from a Judgment of the Superior Court of Los Angeles County No. 5LG03006, Long Beach Trial Court, Halim Dhanidina, Judge. Affirmed.

Miriam K. Billington for defendant and appellant Steven Thomas Faber.

Douglas P. Haubert, Long Beach City Prosecutor, Randall C. Fudge, Assistant Long Beach City Prosecutor, and Nadine E. Dahdah, Deputy Long Beach City Attorney, for plaintiff and respondent People of the State of California.

OPINION

RICCIARDULLI, J.

I. INTRODUCTION

We determine here a court in sentencing a defendant on misdemeanor charges is not required to apply the aggravating and mitigating factors listed in the California Rules of Court for felonies, but may look to them for guidance. We also find the trial court did not abuse its discretion or act unconstitutionally by imposing a six-and-one-half-year jail sentence based on 13 counts of intentionally and knowingly violating protective orders (Pen. Code, § 273.6, subd. (a)).

The evidence at trial showed defendant Steven Thomas Faber1 violated the orders by repeatedly contacting a person he previously dated, primarily through text messaging, the Waze “smartphone” application, Instagram, and e-mails, and also by leaving letters and other items at her door and on her car. The court in sentencing relied on defendant's threatening conduct and his criminal sophistication. Defendant contends on appeal the court exceeded its sentencing discretion and that the sentence constituted cruel and unusual punishment. As discussed below, we affirm.

II. BACKGROUND

A. Facts

At trial, Kim K. (Kim)2 testified she broke up with defendant at the beginning of May 2015, 3 after they dated for seven weeks. Immediately after the breakup, Kim received multiple text messages from defendant despite her repeated requests that he cease contacting her. Kim told defendant to stop contacting her because “his constant texting was making [her] feel threatened, ” but defendant continued to send her messages.

On May 26, Kim obtained a temporary restraining order, barring defendant from contacting her and harassing her, including through telephone, e-mail or other electronic means. Kim lived alone with her school-age son, and the order also required defendant to stay away from the apartment she shared with her son. The order was served on defendant at 8:33 a.m. on May 29, and a June 16 date was set for the court to consider issuing a longer-term order.

Within 30 minutes after defendant was served with the May 29 order, he sent Kim a text message, apparently attempting to minimize one of the reasons Kim decided to break up with him, by telling Kim, “The only reason my ex filed a restraining order was for financial reasons”; describing how his ex-wife's restraining order damaged his life; and ending with “Take care Kim. I loved you a lot.” Despite the note of finality in the message, Kim received text messages from defendant later that same day, some originating from defendant's telephone and others from numbers she did not recognize.

Kim often got texts from telephone numbers that she did not associate with defendant, but each time she opened the message, it turned out to be from him.4 The messages were similar, with defendant describing his relationship with his ex-wife, how she filed “false charges” against him, and blaming Kim for how bad he was feeling because Kim “dumped” him for “no logical reason.” Kim texted defendant telling him he was in violation of the restraining order, but she continued to receive multiple text messages from him each day from May 30 through June 2. In the messages, defendant accused Kim of lying to his family about him calling her “a cunt”; he blamed Kim for defendant getting “kicked out of [his] place” because his landlord found out about the restraining order; defendant told Kim, when people became close to her, she “really hit [them] with a dagger”; and that she “pulled such a vicious sucker punch” in abruptly ending their relationship.

On June 1, at 1:56 a.m., Kim was at home when she received a message through the Waze smartphone application. Kim explained that, under the Waze application, a caller taps a button that says “I'm on my way, ” and the application automatically informs the recipient of where the caller is located and what time they will arrive at their destination. The Waze message indicated to Kim that defendant was leaving his work and coming to her home. Kim testified this scared “the be-Jesus out of [her], ” because Waze, which utilizes the navigation capabilities of the global positioning system (GPS), was indicating defendant was on his way to her home at an early morning hour. Defendant did not actually come to her home. Kim was afraid about what might have happened to her and her son if defendant had gone to the apartment because she knew that, prior to the termination of their relationship, defendant took a personality test that indicated he was a “sociopath.”

On June 5, 6, and 7, defendant sent additional messages to Kim. On June 7 at 6:07 p.m., Kim texted defendant, imploring him not to contact her and telling him he was violating the protective order each time he communicated with her. At 7:28 a.m. the next day, defendant texted her again, including a text in which defendant asked Kim, “What did I do to deserve this kind of treatment from you? This is abuse if anything.” Kim again texted him back telling him to stop texting her. Kim disconnected her personal telephone, and starting on June 14, defendant began sending text messages to her work cell phone.

On June 16, Kim went to court to request the longer restraining order. Defendant was present at the hearing, and he admitted to the court he sent her text messages while the temporary restraining order was in effect. The court issued a one-year restraining order which was similar to the temporary order, but that also specifically barred defendant from “reaching out” to Kim through social media. Defendant was served in court with a copy of the order.

On June 21, June 22, and again on June 26, defendant texted Kim multiple times on her work cell phone. On June 26, Kim told her supervisors what was happening with defendant's unceasing contacts, and her employer disconnected her phone.

On August 13, Kim came home at 1:00 a.m. after being out with her girlfriend, and found the following items at her front door: a bucket with sunflowers in it; a gold box containing a key chain; other items she had given to defendant when they dated; and sunflower seeds. There was also a written note from defendant, which Kim described as “the creepiest letter.” The letter had been burned around its edges and was smeared with a red substance. Defendant stated in the letter he applied “red dye” to the paper and he continued to express his dismay at the breakup. The letter also said, “[T]he sunflowers are such a good representation of you. They are both beautiful, last long and can be eaten. These sunflower seeds. Tasty. I mean that in a nice way, but they are just so bold and beautiful.”

On September 7, Kim posted a photograph with a humorous image and a message on her Instagram account. Kim received a response from a person identified as “Universe Tom, ” an individual she did not know. From September 7 to 8, Kim and the person exchanged messages on Instagram discussing relationships and other personal matters, including Kim telling the person that, at age 51, she had learned to be happy being single. Finally, on September 8 she received a photograph on Instagram of her and defendant taken while they were dating, accompanied by a message informing Kim that defendant was Universe Tom. Kim blocked defendant from using the Universe Tom name to access her Instagram.

On either September 8 or 9, Kim opened the door to take her son to school, and found a small pumpkin at her front door and two letters from defendant on the windshield of her car. In one of the letters, defendant told Kim, “I really do not care that you blocked me from Instagram, ” and ended by saying, “I don't want to watch you get hurt. Please be smart.” In addition, on September 13, 15, and 16, defendant sent e-mails to Kim, including one wherein defendant called her “sleazy” and “a cougar.”

Rudy Romero, a detective assigned to the domestic violence detail, testified Kim called 911 over 10 times to report defendant's violations of the protective orders. Towards the end of his investigation in late September, Romero left several messages and e-mails for defendant to contact the police, but defendant did not respond.

B. Sentencing

The prosecutor filed two...

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