People v. Hood, 012221 CAAPP1, A158814

Docket NºA158814
Opinion JudgeFujisaki, Acting P.J.
Party NameTHE PEOPLE, Plaintiff and Respondent, v. EUGENE VERNON HOOD, Defendant and Appellant.
Judge PanelWE CONCUR: Petrou, J., Jackson, J.
Case DateJanuary 22, 2021
CourtCalifornia Court of Appeals

THE PEOPLE, Plaintiff and Respondent,

v.

EUGENE VERNON HOOD, Defendant and Appellant.

A158814

California Court of Appeals, First District, Third Division

January 22, 2021

NOT TO BE PUBLISHED

City & County of San Francisco Super. Ct. No. SCN230531

Fujisaki, Acting P.J.

A jury convicted defendant Eugene Hood of stalking, criminal threats, and contempt of court regarding a stay away or protective order. The trial court sentenced him to the upper term of four years on the stalking count while staying the sentences on the remaining counts. On appeal, defendant contends he was denied effective assistance of counsel because his attorney failed to object to the sentence on the stalking conviction, which defendant contends was based on an impermissible dual use of facts. We affirm.

Factual and Procedural Background

Defendant was charged by information with stalking (Pen. Code, § 646.9, subd. (a)1; count one) from January 3, 2018, through December 10, 2018; stalking in violation of a restraining order (§ 646.9, subd. (b); count two) from October 26, 2018, through December 10, 2018; criminal threats (§ 422; counts three, four, and six) committed on or about January 3, 2018, October 26, 2018, and November 6, 2018; violation of a domestic violence protective order, second conviction (§ 166, subd. (c)(4)), committed on or about October 26, 2018, and November 6, 2018; counts five and seven); and misdemeanor contempt of court regarding a stay away or protective order (§ 166, subd. (c)(1); counts eight, nine, and ten), committed on or about November 6, 2018, November 16, 2018, and December 10, 2018.

The evidence at trial established as follows. Defendant and P.W. met in 2011, began a romantic relationship, and eventually started living together in San Francisco. In May 2013, their daughter was born.

In August 2013, defendant and P.W. were at home arguing when defendant, while holding the baby, threatened to throw the baby against the wall and kill her.

In March 2014, defendant received a phone call that angered him, and he started breaking things around the house, including the baby's crib, stroller, and car seat. P.W. warned him that if anything else happened, she would call the police. Defendant told P.W. that if she broke up with him, he “would knock [her] head off and “ ‘make [her] life a living hell.' ”

In April 2014, defendant pulled a scab off the baby's face, causing her to bleed. When P.W. told defendant he did not need to do that to the baby, defendant got angry, threatened P.W.'s life, threw the baby on the bed, and stomped around screaming. P.W. asked defendant to move out but he refused. P.W. said she was going to take the baby, but defendant prevented them from leaving, lunged at P.W. like he was going to hit her, and said he was going to punch her in the face. P.W. eventually left the house with the baby and went to the police station. After filing a police report, P.W. went to a friend's home and was later notified that a restraining order had been served against defendant. Later that evening, P.W. received text messages from defendant saying, “ ‘You are a dead Butch [sic],' ” “ ‘Bitch,' ” “ ‘Dead,' ” “ ‘I'm coming back and killing you,' ” “ ‘You better not go home. I'm going to fuck up your car, bitch,' ” and “ ‘I want my fucking clothes tomorrow. Call the cop, you silly bitch, ugly ass bitch. I hope you die.' ”

Defendant was interviewed by police in April 2014. He admitted he had threatened to kill P.W. and the baby, but said he did not mean what he wrote. In June 2014, P.W. obtained a criminal protective order protecting her and the baby against defendant.

Sometime later in 2014, the couple resumed their relationship. Defendant took parenting classes, underwent therapy, and told P.W. he wanted to change and move on as a family. In 2016, however, P.W. ended the relationship. She moved to Oakland with the baby and told defendant not to come. For the next few years, P.W. tried to keep a cordial relationship with defendant and allowed weekly visits with their daughter.

P.W. eventually moved to San Francisco without telling defendant where she and their daughter were living. On January 3, 2018, P.W. received a phone call from defendant, saying, “ ‘I'm going to find where you live, and I'm going to kill you guys.' ” P.W. called defendant's probation officer and filed a police report, and defendant was arrested. In March 2018, P.W. renewed the criminal protective order against defendant.

On the morning of October 26, 2018, P.W. received a text message from defendant that featured a screenshot of an entertainment event that P.W. was planning, along with the words, “ ‘I am going to do this. Deep, too, with hell of my dudes.' ” P.W. interpreted this to mean that defendant was going to attend the event with many other people to start trouble. Later that morning, defendant called P.W. and angrily threatened her. As recounted by P.W. at trial, defendant “said that he was going to find where I lived and kill me. He was going to slit my throat. He said he was going to get somebody to punch me in my face, knock my head off. He wished my legs would be broken. He said he was going to come to the party with a gun.” That day, defendant called P.W. nine times in less than a half-hour period.

P.W. testified that between October 26, 2018, and November 6, 2018, defendant called her constantly, “more than 200 times” each day, and P.W. would turn off her phone or not pick up. Between October 27, 2018, and November 5, 2018, P.W.'s boyfriend, J.G., picked up the phone at least a dozen times when defendant called, and on those occasions, defendant threatened to kill J.G. and “shoot” P.W.

On November 6, 2018, and December 10, 2018, P.W. received calls from defendant. During the November 6 call, defendant told J.G. he was going to “shoot” P.W. at the event later that month. P.W. contacted the police, and defendant was arrested. During the December 10 call, defendant said “very threatening, very vile things” about J.G. and P.W.

Defendant testified on his own behalf at trial. He did not deny repeatedly threatening P.W., but he testified he said these things in the heat of the moment or while under the influence of alcohol and cocaine. He further admitted that he called P.W. many times between October 26, 2018, and November 6, 2018, but testified that he called because he wanted to apologize. He said he never intended to place P.W. in fear for herself or the baby.

The jury found defendant guilty of stalking in violation of a restraining order (count two), criminal threats (counts four and six), and contempt of court (counts nine and ten).2 The jury found defendant not guilty on both charges of violation of a domestic violence protective order, second conviction (counts five and seven) but found him guilty on both counts of the lesser included offense of misdemeanor contempt of court regarding a stay away or protective order.

The trial court sentenced defendant to four years in state prison-the upper term on count two. (§ 646.9, subd. (b).) In selecting the upper term, the court explained at length:

“In aggravation, there is the nature of the charge. This crime involved, [not] just a threat of a great bodily harm against [P.W.], but repeated threats, including threats of death against [P.W.].

“From my vantage point at trial, as well as seeing [P.W.] today, it's clear that she's visibly terrified of the defendant. During trial she was shaking uncontrollably at the start of her testimony, similar to what happened today at the sentencing hearing, so much that I had to take a break at the start of her direct examination at trial in order to enable her to compose herself.

“In light of the troubling nature of the threats that I heard, I have no doubt that [P.W.] took the death threats seriously, and that she was not simply exaggerating for the jury's benefit. That same state of emotion persists to this day.

“The most poignant and disturbing moment at the trial, in the Court's view, was when [P.W.]...

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