People v. Sotomayor

• Decision Date: 15 July 1996
• Docket Number: No. B094434,B094434
• Citation: 47 Cal.App.4th 382,54 Cal.Rptr.2d 871
• Court: California Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 5254, 96 Daily Journal D.A.R. 8453 The PEOPLE, Plaintiff and Respondent, v. David SOTOMAYOR, Defendant and Appellant.

Page 871

54 Cal.Rptr.2d 871

47 Cal.App.4th 382, 96 Cal. Daily Op. Serv. 5254,

96 Daily Journal D.A.R. 8453

The PEOPLE, Plaintiff and Respondent, v. David SOTOMAYOR, Defendant and Appellant.

No. B094434.

Court of Appeal, Second District, Division 5, California.

July 15, 1996.

Certified for Partial Publication. ^*

Rehearing Denied Aug. 5, 1996.

Review Denied Oct. 16, 1996.

Janet J. Gray, Pacific Grove, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Pamela C. Hamanaka, Supervising Deputy Attorney General, and Alan D. Tate, Deputy Attorney General, for Plaintiff and Respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

David Sotomayor, defendant, appeals from a judgment of conviction, after a jury trial, of stalking when a restraining order was in effect prohibiting his behavior. (Pen.Code, § 646.9, subd. (b).) ¹ The court found defendant had sustained three prior serious felony convictions within the meaning of subdivisions (b) through (i) of section 667. He was sentenced to 25 years-to-life in state prison. (§ 667, subd. (e)(2)(A)(ii).) We affirm the judgment of conviction. However, we modify defendant's presentence custody credits. Further, we remand for reconsideration of the sentence pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13, 53 Cal.Rptr.2d 789, 917 P.2d 628.

II. THE STALKING STATUTE

At the time defendant committed the present offense, section 646.9, concerning stalking, provided: "(a) 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, or the safety of his or her immediate family, is guilty of the crime of stalking, ... [p] (b) Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison .... [p] ... [p] (d) For the purposes of this section, 'harasses' means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, torments, or terrorizes the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. 'Course of conduct' means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of 'course of conduct.' [p] e) For the purposes of this section, 'credible threat' means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and 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 immediate family...." (Stats.1993, ch. 581.)

The current version of section 646.9, as amended in 1995 (Stats.1995, ch. 438), contains the following definition of "credible threat": "(g) For the purposes of this section, 'credible threat' means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written 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. ..." The Legislature declared the amendments to subdivision (g) were declaratory of existing law. (Stats.1995, ch. 438.) The amendments were a codification of the holding of the Court of Appeal in People v. Carron (1995) 37 Cal.App.4th 1230, 1240, 44 Cal.Rptr.2d 328.

III. FACTS

A. The Evidence at Trial

We summarize the evidence in the light most favorable to the prosecution. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909; People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110.) Between October 24, 1994, and December 5, 1994, the relevant dates as alleged in the information, defendant, who had been married to the victim for 11 years, repeatedly harassed her despite a restraining order being in effect. He telephoned her place of employment two or three times every day and sometimes more often. One of Mrs. Sotomayor's co-employees, Erica Hertz, testified that during one of these calls defendant was irritated, raised his voice, and used profanity. Mrs. Sotomayor expressed fear for her safety and for the security of her job. Defendant also came into the shop where Mrs. Sotomayor worked on one occasion. He demanded to know, " 'Which one [of you] is Erica?' " The visit left his wife, who was present, afraid and very upset.

On November 21, 1994, defendant arrived at his wife's home, owned by her parents, with a locksmith, apparently intending to change the locks on the house. Monrovia Police Officer Enrique Resendez responded to a telephone call from Mrs. Sotomayor and arrived at her home. He told defendant to leave. Mrs. Sotomayor called a friend, Nannette Kingslan, and asked her to come over. When Ms. Kingslan arrived, Mrs. Sotomayor was shaking and scared. On other occasions when Ms. Kingslan was present, defendant had yelled profanities and once threatened to have one of their dogs put to sleep.

Two weeks later, on December 4, 1994, Officer Resendez again responded to a telephone call concerning a violation of a restraining order at Mrs. Sotomayor's address. When he arrived at Mrs. Sotomayor's home, she was nervous and upset. When the telephone rang, Mrs. Sotomayor picked it up and handed the phone to Officer Resendez. When Officer Resendez identified himself, the person on the other end hung up. The phone rang two more times while Officer Resendez was present; both times he answered the telephone but got no response from the caller. Telephone records showed defendant called his wife's house 18 times on December 4. Defendant told her, " 'So long as we're both living and breathing, I'm going to give you problems.' "

The next day, December 5, 1994, defendant telephoned his wife a total of 19 times. Furthermore, he arrived at her home at 11:40 a.m. He sat in his truck and repeatedly called her from his cellular phone. Then he came to the door and said, " 'Life is so miserable that you can't even answer a phone or come to the door?' " Mrs. Sotomayor telephoned the police. The police dispatcher testified Mrs. Sotomayor sounded angry and concerned. She told the dispatcher defendant was yelling at her through the door. Police officers detained defendant and Mrs. Sotomayor made a citizen's arrest. Officers repeatedly warned defendant that because of the restraining order he was not to contact his wife or return to her house. Mrs. Sotomayor told a police officer she was afraid because defendant had threatened to rape her and her mother; she was afraid defendant would kill them. ² Ms. Kingslan testified she spoke to Mrs. Sotomayor on the telephone and she "sounded panicky." Defendant was released from police custody at 1:15 p.m. Forty-five minutes later, at 2 p.m., defendant returned to his wife's house. Just prior to his arrival there, he called his wife and said, " 'You're dead meat.' " Mrs. Sotomayor believed defendant would carry out that threat. She thought he meant to kill her. Her niece, who was at home with her, was also afraid. When Monrovia Police Officer Ron Brunn arrived, defendant was arguing with Mrs. Sotomayor. Defendant was arrested by police officers at 2:05 p.m. His wife "was crying and real scared ... frightened, very frightened."

Mrs. Sotomayor testified at the preliminary hearing she feared defendant generally because: he was a big, strong man, who had, in the recent past, struck her with the palm of his hand on her forehead, showed anger and rage toward her, and bruised her by grabbing her. This led her to obtain a restraining order against him. The court took judicial notice that a temporary restraining order was issued and took effect on October 18, 1994. It was served on defendant on October 24, 1994. Defendant was restrained from "contacting, molesting, attacking, striking, threatening, sexually assaulting, batter[ing], telephon[ing] or disturbing the peace of [Mrs. Sotomayor] and [defendant] was precluded from coming within 100 yards of the family home, or [Mrs. Sotomayor's place of business]." The temporary restraining order remained in effect until November 10, 1994, at which time a permanent restraining order was issued and took effect. Defendant was served with the permanent restraining order on November 21, 1994. The jury was so advised. Defendant described his conduct as merely attempting to "get back with his wife."

B. Additional Facts Before the Court at the Time of Sentencing

Defendant committed robberies on three separate occasions in 1979--July 8, 1979, August 16, 1979, and September 6, 1979. Also, the probation report indicated he had "aggressively assaulted" his wife in the past. Awaiting trial, the probation report indicated defendant pressured his wife into refusing to testify and blamed her for his incarceration. In addition to this effort to dissuade Mrs. Sotomayor from testifying, although it does not appear in the probation officers' report, there...