State v. Borrelli

• Decision Date: 18 January 2000
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 5 Dist. 2000) THE PEOPLE, Plaintiff and Respondent, v. RALPH DAVID BORRELLI, Defendant and Appellant. F028540 Filed

91 Cal.Rptr.2d 851 (Cal.App. 5 Dist. 2000)

THE PEOPLE, Plaintiff and Respondent, v. RALPH DAVID BORRELLI, Defendant and Appellant.

F028540

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed 1/18/00

APPEAL from a judgment of the Superior Court of Stanislaus County.

Hugh Rose, III, Judge.

(Super. Ct. No. 71898)

Fay Afra, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Clayton S. Tanaka and Brian G. Smiley, Deputy Attorneys General, for Plaintiff and Respondent.

CERTIFIED FOR PARTIAL PUBLICATION^*

OPINION

By information filed in Stanislaus County Superior Court on February 19, 1997, appellant, Ralph David Borrelli, was charged with the burglary, arson, and vandalism of a dental office located at 3025 McHenry Avenue in Modesto, California in violation of Penal Code sections 459, 451, subdivision (c), and 594, subdivision (b)(2), respectively.¹ In addition, he was charged with the stalking of his estranged wife, Annette Borrelli, on or about July 21, 1995, and December 22, 1996, in violation of section 646.9, subdivision (a). Appellant entered not guilty pleas to the charges and requested a jury trial in the matter.

The burglary charge was subsequently set aside in response to appellant's section 995 motion.

The matter then proceeded to trial on the remaining counts. The jury found appellant guilty of arson of a structure as a "lesser included offense" of count II, vandalism and stalking.

On May 23, 1997, imposition of sentence was suspended and appellant was placed on three years probation.

Notice of appeal was timely filed on June 9, 1997. Here, appellant raises various issues related to the constitutionality of the stalking statute, section 646.9; the sufficiency of the evidence to support his conviction of that offense; various instructions given in this case; and the trial court's refusal to allow the read back of defense counsel's closing argument. We affirm.

FACTS

The Prosecution's Case-in-Chief

As pertinent to the issues presented on appeal, the facts show that appellant and Annette Borrelli were married in September of 1986 and separated in July of 1995 after she obtained a restraining order against him. During most, if not all of the time they were together, Ms. Borrelli worked as an office administrator for Modesto Dental Group located at 3025 McHenry.

On September 21, 1995, Ms. Borrelli went to Merced to visit her parents. She was getting ready to leave to meet appellant at her Turlock home when he arrived, uninvited, to pick up their children. Ms. Borrelli was surprised to see appellant because the plan had been for him to pick up the children at her home.

While Ms. Borrelli was putting the children in appellant's car, he was threatening her and telling her that he was going to kill both her and her parents. Before she could finish strapping the children in, appellant began backing up his truck as though he was going to run over her feet. He then left with the children.

Ms. Borrelli left her parents' home about 45 minutes later without telling her parents about the threats. She was too afraid to tell them because her father was in very poor health.

A few hours later, appellant arrived unannounced at Ms. Borrelli's Turlock home. Appellant was very angry because the children had fallen asleep and he had nowhere to take them. He stomped on her foot, kicked her, and screamed obscenities at her. He then took off with the children still in the car.

Ms. Borrelli decided to talk to her brother-in-law about the situation because appellant frightened her. Later that day, she called the police.

On December 2, 1995, appellant came to pick up the children. Ms. Borrelli was not home at the time as she had left the children with a babysitter. A short time later, appellant showed up at the salon where Ms. Borrelli was getting her hair done. He was very angry and called her names. He then left.

Appellant contacted her a few hours later and complained that the clothes she had packed for the children were inappropriate. He wanted new clothes. So, Ms. Borrelli hurried home and packed some clothes. She had just sat down in her car to retrieve something when she felt it move and realized that appellant had rear-ended her. He hit her car hard enough to cause Ms. Borrelli's neck to go back "and [cause] a good feeling in it."

Ms. Borrelli had been talking to her girlfriend on her cell phone at the time. She told her girlfriend what had happened and expressed her fear of appellant. Her girlfriend called the police while Ms. Borrelli locked her car doors.

Appellant came up and began banging on the door. He was very angry and hostile when he told her he was going to kill her. He left with the children before the police arrived.

Appellant came back later that evening to return the children. As Ms. Borrelli went to get the baby, appellant, very angry, "kind of went towards [her] to grab [her] on the neck." She ran into the house with the baby, locked the door, and called the police. She told appellant to leave their little girl at the front door with her things and to leave because the police were on their way. As soon as she saw him get in his vehicle, she opened the door and pulled her little girl inside.

Appellant was gone by the time the officers first arrived but returned in time to tell them his side of the story. The incident ended with appellant being taken to jail.

Then, on April 15, 1996, appellant telephoned the house and their daughter answered. Ms. Borrelli was standing right next to her when appellant said something that upset their daughter. Ms. Borrelli got on the phone and appellant told her he was going to kill her. She hung up the phone but did not report the incident to the police at that time.

She telephoned the police the very next day after receiving another phone call from appellant. It was shortly before 6 a.m. when appellant called and told her today was the day he was going to kill her.

One of the times he threatened to kill her, he said he would blow her head off with a gun. She was very frightened and became a nervous wreck each time she was threatened. She knew appellant owned a couple of firearms and she had seen ammunition around the house during the time they were together. He told her that he kept one of his guns in his car.

To her knowledge, the only other person appellant had ever threatened to kill was himself. Ms. Borrelli had contacted the police more than once when this occurred since appellant seemed likely to carry out the threat.

On May 1, 1996, she moved to another location and did not give appellant her new address. From that point on, she and appellant exchanged the children at the Turlock Police Department.

On May 7, 1996, appellant showed up at Ms. Borrelli's place of employment. He barged into her office, called her several names, and blamed her for his inability to have surgery on his arm. She did not know why he was blaming her. As far as she knew, appellant was working with some type of program that was going to pay the costs of the surgery.

During cross-examination, defense counsel suggested that appellant may have blamed her because she was withholding money he needed for his operation. Ms. Borrelli said there had been no discussion about money at the time of that incident. She said the discussions about money took place in July as part of their dissolution proceeding.

Defense counsel then asked whether appellant had asked her to free up some funds so he could have them. She insisted appellant never made that request in May.

In response to further defense questioning, Ms. Borrelli said the family home was subsequently sold and that there was no second home during the time she and appellant were together. Defense counsel tried to ask about another home that was put in her parents' names but the trial court advised counsel that it was going to sustain all future objections directed at questions regarding the dissolution proceedings.

When asked at trial whether she wanted to see her husband convicted, Ms. Borrelli replied that she wants him to quit bothering her and to get the help he needs. She wanted him held accountable for the things he had done to her. She denied ever threatening to harm or kill appellant.

Mr. Patterson also testified for the prosecution. He said he was in Modesto visiting relatives on December 22, 1996. Sometime after 10 p.m., he found himself trying to jump start a car in the Mervyn's parking lot on McHenry with his fiance, her sister Tina, and her husband Frank Solorio.

A short time later, Mr. Patterson and Frank Solorio noticed a fire across the street. Neither man heard a crash but Mr. Patterson thought that might have been because they had gotten their car started.

The two men ran over there to investigate and found a burning car smashed into a building. They contacted appellant, who was the only person nearby, and asked if he knew what happened. Appellant said he did as it was his car. They asked appellant if he had lost control of the car. Appellant said no, he was making a statement to his girlfriend who worked in the building. Appellant left before the firefighters arrived on the scene.

The Defense Case

Appellant testified that he and Annette separated on July 7, 1995, and that a dissolution action was pending. He said they were engaged in a property dispute over two houses, a lot of money and a payroll company that they had started in 1989. Appellant accused Annette of keeping over $30,000 from him and commented that $64,000 in cash had disappeared.

Appellant said Annette had not accurately portrayed the events that took place on May 7, 1996. He explained that he had broken his arm in five places and had been to the hospital that morning for a "pre-op" examination. He was scheduled for surgery to repair his wrist.

...