P. v. Garza
Filed 8/8/12 P. v. Garza CA4/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JESSE MARIO GARZA,
Defendant and Appellant.
G045499
(Super. Ct. No. 10CF3264)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Carla Singer, Judge. Affirmed.
Eric Cioffi, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, William M. Wood and Kathryn Kirschbaum,
Deputy Attorneys General, for Plaintiff and Respondent.
*
* *
Introduction
In May 2011, a jury
found defendant Jesse Mario Garza guilty of felony stalking and misdemeanor
trespass related to a series of events that took place in November and December
2010. In a
defendant had prior convictions, including a serious and violent felony
conviction. In July 2011, defendant was
sentenced to a total of six years in prison and received 330 days of
presentence credits pursuant to section 4019 of the Penal Code. (All further statutory references are to the
Penal Code.)
Defendant contends there
was insufficient evidence to support
his felony stalking conviction pursuant to section 646.9, subdivision (a). The record shows sufficient evidence to
sustain the stalking conviction; we therefore affirm.
Defendant also argues he
is entitled to additional presentence conduct credits pursuant to section 4019,
as amended in 2011. Because defendant
committed the crimes and was sentenced before the operative date of the
2011 amendment to section 4019 (October 1, 2011), which operates prospectively only, he
is not entitled to any additional presentence conduct credits.
Statement of Facts and Procedural History
In December 2010,
Jessica Orellana lived in an apartment complex in Santa
Ana, California, with her
boyfriend, Cesar Esteban, and their two young children. The apartment complex consisted of two
adjacent buildings, and a common area of approximately 40 feet. Orellana and her family lived on the third
floor of one of the buildings. The
apartment was only accessible via an adjacent stairwell and a bridge connecting
the buildings, and was offset below the third level by a few additional stairs
that led directly to the apartment.
Access to each building in the complex was restricted by a perimeter
key.
Sometime after
Thanksgiving, Orellana, Esteban, and their children encountered defendant on
the stairs leading to the apartment as they were leaving. Defendant had previously lived in the
apartment complex, but was homeless at the time of the incident. Defendant told Orellana that he knew her and
did not want any trouble because he had just been released from jail. Orellana had never seen defendant before that
encounter.
The next time Orellana
saw defendant pass by the apartment was in late November 2010. The inner front door was open, but the outer
metal security door was closed and locked.
According to Orellana, defendant stopped outside the apartment and said,
“I want to fuck you.” Orellana feared
defendant would rape her, so she quickly closed the inner front door. Defendant repeated the same comment when
passing by the apartment the following morning and Orellana again immediately
shut the inner door. During those
incidents, defendant did not attempt to open the security door or continue
speaking to Orellana after she closed the door.
Orellana heard and saw
defendant trying to open the locked security door to the apartment about 6:15 a.m. on December 1, 2010.
Esteban looked through the peephole and saw defendant attempting to open
the security door, so Esteban called the police. Defendant fled once the police arrived.
Orellana saw defendant
once again outside the apartment during the afternoon of December 2. She watched him through the peephole as he
walked back and forth outside the apartment.
That night, Orellana, Esteban, and their children stayed with Orellana’s
mother out of “fear of [defendant] coming back.”
The family returned to
the apartment the morning of December 3.
Around 8:00 p.m., Orellana
again looked through the peephole and saw defendant outside the apartment. She called the apartment’s security guard,
who contacted the police. Police
officers subsequently located defendant on the third floor of the other
building. He was arrested for
misdemeanor trespass and was released a few hours later.
The next morning,
Esteban saw defendant outside the apartment about 5:50 a.m. Defendant pulled on the locked security door
of the apartment for about five minutes.
Once defendant stopped pulling on the door, Esteban opened the inner
front door, asked defendant if he needed something, and told him to leave them
alone. Esteban then called the police to
report the incident.
Later that day, Orellana
saw defendant again trying to open the security door about 12:00 p.m. Orellana called the police, but defendant was
not located. Orellana told the police
she was scared of defendant, but he had never actually threatened her. Orellana was scared to leave the apartment to
take out the trash because of defendant’s actions.
Defendant returned to
the apartment around 9:00 p.m. on December 4.
Orellana’s mother and the apartment’s security guard called Esteban and
Orellana, who were not home at the time, to let them know defendant was outside
their apartment. When the family
returned home between 10:00 and 10:30 p.m., defendant was still outside the
apartment, so Orellana called the police.
Defendant was arrested later that night.
On April 15, 2011, the
Orange County District Attorney’s Office filed an amended information charging
defendant with one count of felony stalking, in violation of section 646.9, subdivision
(a); two counts of attempted first degree residential burglary with the intent
to commit rape, in violation of sections 664, subdivision (a), 459, and 460,
subdivision (a); and one count of misdemeanor trespass, in violation of section
602, subdivision (o). The amended
information also alleged defendant had suffered two prior felony convictions
pursuant to section 1203, subdivision (e)(4); a serious and violent felony
conviction pursuant to sections 667, subdivisions (d) and (e)(1) and 1170.12,
subdivisions (b) and (c)(1); and three prison priors pursuant to section 667.5,
subdivision (b).
On May 31, 2011, a jury
found defendant guilty of stalking and misdemeanor trespass. The jury acquitted defendant of the attempted
burglary with the intent to commit rape charges. In a bifurcated proceeding, the trial court
found defendant’s alleged priors to be true beyond a reasonable doubt. Defendant was sentenced to a total of six
years in prison and received 330 days of custody credits, comprised of 220
actual days and 110 conduct days.
Discussion
I.
Sufficient Evidence Supports the
Stalking Conviction Under Section 646.9.
Defendant
argues his conviction for stalking should be reversed because there was
insufficient evidence to establish either harassment or a credible threat with
the intent to place Orellana in fear for her safety. “‘In assessing the sufficiency of the
evidence, we review the entire record in the light most favorable to the
judgment to determine whether it discloses evidence that is reasonable,
credible, and of solid value such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.’ [Citation.]”
(People v. Steele (2002) 27
Cal.4th 1230, 1249.) We presume in
support of the judgment the existence of every fact that could reasonably be
deduced from the evidence. (
1053.) We may reverse for lack of
substantial evidence only if “‘upon no hypothesis whatever is there sufficient
substantial evidence to support’” the conviction. (People
v. Bolin (1998) 18 Cal.4th 297, 331.)
Stalking
is defined in section 646.9, subdivision (a):
“Any person who willfully, maliciously, and repeatedly follows or
willfully and maliciously 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 . . . .”
Section
646.9, subdivision (e) defines the term “harasses” as “engag[ing] 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.”
A
“course of conduct” is “two or more acts occurring over a period of time,
however short, evidencing a continuity of purpose.” (§ 646.9, subd. (f).) A “credible threat” is “a verbal or written
threat, . . . or a threat implied by a pattern of 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.” (§ 646.9, subd. (g).)
For
the following reasons, we conclude there was sufficient evidence to establish
defendant harassed Orellana and made a credible threat with the intent to place
Orellana in reasonable fear for her safety.
A.
Defendant
argues there is insufficient evidence to establish knowing and willful
harassment directed at a specific person, as defined in section 646.9,
subdivision (a). To establish harassment under section
646.9, subdivision (a), the prosecution must prove defendant engaged in (1)
willful and knowing conduct, (2) at least two times, (3) directed at a specific
person, (4) that seriously alarms, annoys, torments, or terrorizes the person,
and (5) that serves no legitimate purpose.
(§ 646.9, subds. (a), (e), (f).)
After
reviewing the record, we conclude there was substantial evidence to establish
the statutory requirements for harassment under section 646.9,
subdivision (a). A reasonable trier
of fact could conclude that defendant’s repeated statement, “I want to fuck
you,” directed at Orellana, and subsequent attempts to open the locked security
door, constituted willful and knowing conduct, occurring on more than two
occasions, which was directed at Orellana, seriously alarmed her, and served no
legitimate purpose.
Defendant
argues his attempts to open the locked security door without directly speaking
to Orellana could not be “directed at a specific person” because he did not
know Orellana was home during any of the attempts. The jury could infer
defendant’s repeated presence outside the apartment and attempts to open the
door after his vulgar statements directed at Orellana established the requisite
knowledge that she was inside the apartment.
Defendant
also argues his actions did not establish harassment of Orellana because she
told the police defendant had not actually threatened her. Harassment under section 646.9, subdivisions
(a) and (e), however, only requires a victim to be seriously alarmed, annoyed,
tormented, or terrorized. The jury could
reasonably conclude defendant’s actions seriously alarmed Orellana, regardless
of whether she thought defendant actually threatened her.
Orellana
immediately closed the inner front door after defendant said, “I want to
fuck you,” because she feared he would rape her. She was scared to leave the apartment to take
out the trash. Orellana and her family
stayed with her mother the night of December 2, out of “fear of [defendant]
coming back.” On more than one occasion,
Orellana called the apartment’s security guard and/or the police.
There
was sufficient evidence to establish defendant harassed Orellana as defined in
section 646.9, subdivision (a).
B.
Credible Threat
Defendant also argues there is
insufficient evidence to establish he made a “credible threat . . .
‘ . . . with the intent to place [Orellana] in reasonable fear
for . . . her safety or the safety of . . . her family,’”
as required by section 646.9. A credible threat “must be made with the
specific intent to cause the victim to reasonably fear for personal safety or
the safety of immediate family. ‘[I]t is
clear that it is the perpetrator’s intent, rather than the definition of the
conduct engaged in, which triggers the applicability of the statute.’ [Citation.]”
(People v. Halgren (1996) 52
Cal.App.4th 1223, 1231.) “‘It is not
necessary to prove that the defendant had the intent to actually carry out the
[threat].’” (People v. McClelland (1996) 42 Cal.App.4th 144, 154, fn. 4.)
In
sum, to constitute a credible threat under section 646.9, subdivision (a),
the defendant must have intended to instill reasonable fear in the victim,
regardless of the defendant’s intent to actually carry out the threat. Defendant argues he did not make a credible
threat because he expressed a desire (wanting
to have sex with Orellana), instead of affirmatively stating an intention. This distinction is irrelevant. (See People
v. Uecker (2009) 172 Cal.App.4th 583 [the defendant left notes on the
victim’s car with statements such as “‘“If you want to go riding bicycles, give
me a call”’” and “‘“I want to go out with you”’” (id. at p. 586); this constituted a credible threat (
defendant’s statements were intended to place Orellana in fear that defendant
would forcibly have sex with her, even though he argues he expressed a desire
instead of an explicit intent.
Defendant
contends he could not have intended to place Orellana in fear for her safety by
attempting to open the security door if he did not know she was home. As explained ante, the jury could have inferred defendant knew Orellana was
home, based on the evidence presented.
Thus, defendant could have intended to instill in Orellana fear for her
safety and the safety of her family, through his attempts to open her
apartment’s locked security door on multiple occasions.
There
was sufficient evidence to convict defendant of stalking under section 646.9,
subdivision (a).
II.
Is Not Entitled to Additional Presentence Conduct Credits
Pursuant to Section 4019.
Since 1976,
section 4019 has offered prisoners in local custody the opportunity to earn
conduct credit against their sentences for good behavior. (People
v. Brown (2012) 54 Cal.4th 314, 317 (Brown).) Conduct credits encourage prisoners to
conform to prison regulations, to participate in work and other rehabilitative
activities, and to refrain from criminal and assaultive conduct. (Id. at
p. 317; People v. Austin (1981) 30
Cal.3d 155, 163.)
Section 4019
was amended in 2011 to increase the accrual rate of good conduct credits. (Stats. 2011, ch. 15, § 482.) By its terms, the amended statute applies only
to defendants whose crimes were committed on or after October 1, 2011. (Stats. 2011, ch. 15, § 482; Stats.
2011, ch. 39, § 53.) Because
defendant committed the current crimes and was sentenced before October 1,
2011, he is not eligible for additional conduct credits under the current
version of section 4019.
Defendant
argues the prospective-only application of section 4019 violates the equal
protection clauses of the federal and
state Constitutions because (1) it creates two classes of inmates (those
who committed crimes before and on or after October 1, 2011) who are similarly
situated, but treated differently, and (2) there is no rational basis for
treating those two classes differently.
The California
Supreme Court’s recent decision in Brown,
supra, 54 Cal.4th 314, is
instructive. The court in
section 4019, which also prospectively increased the rate of accrual of good
conduct credits during a fiscal emergency, did not violate equal protection
because the 2009 amendment did not create “‘“similarly situated [groups] for
purposes of the law challenged.”’” (
concept of equal protection recognizes that persons who are similarly situated
with respect to a law’s legitimate purposes must be treated equally.” (Ibid.) “[T]he important correctional purposes of a
statute authorizing incentives for good behavior [citation] are not served by
rewarding prisoners who served time before the incentives took effect and thus
could not have modified their behavior in response. That prisoners who served time before and
after [the 2009 amendment] took effect are not similarly situated necessarily
follows. . . . ‘Thus, inmates were only similarly situated with
respect to the purpose of [the new law] on [its effective date], when they were
all aware that it was in effect and could choose to modify their behavior
accordingly.’ [Citation.]” (Id.
at pp. 328-329; see also In re Strick
(1983) 148 Cal.App.3d 906, 913-914 [inmates were not similarly situated
until they were all aware of the new legislation changing the accrual rate of
work credits, and had the ability to change their behavior to take advantage of
the new accrual rate].)
The court held
the prospective application of the 2009 amendment to section 4019 did not
violate the equal protection clauses because the 2009 amendment created two
distinct groups with regard to conduct credits—those aware of the incentive
after its enactment, and those unaware of the incentive before its
enactment. (Brown, supra, 54 Cal.4th
at p. 330.)
The same
analysis applies to the prospective application of section 4019 as amended in
2011. Defendants who committed crimes
before section 4019 was amended in 2011 were unaware of the enhanced credit
accrual scheme and could not modify their preamendment behavior to receive the
benefits of the new law. The amendment
to section 4019 thus created two distinct groups with regard to conduct credits,
and does not trigger equal protection analysis.
Even if we
assume for purposes of this opinion that the 2011 amendment to section 4019
creates a classification of similarly situated groups, we would conclude there
is a rational basis for treating those classes differently, and that the statute,
therefore, does not violate equal protection.
The
Legislature’s express purpose in changing the good conduct credit accrual rate
in 2011 was to “address[] the fiscal emergency declared by the Governor.” (Legis. Counsel’s Dig., Assem. Bill No. 109
(2011-2012 Reg. Sess.).) Defendant
argues the distinction between offenders who committed crimes before and after
a certain date fails the rational basis test because it does not correlate with
the remedial nature of the statute as amended.
We disagree. The Legislature may have decided that the
nature and scope of the fiscal emergency required granting additional credits
to specified classes of prisoners, previously denied to them, only after the
effective date of the amendment.
Reducing prison populations by granting a prospective-only increase in
conduct credits strikes a proper, rational balance between the state’s
fiscal concerns and its public safety interests. As the Attorney General argues,
prospective-only application is “rationally related to the legitimate state
interest of encouraging good behavior and work performance while inmates serve
local custody time. Because a criminal
defendant’s past conduct cannot be motivated retroactively, a rational basis
exists for applying the amendment prospectively only.” The
prospective application of section 4019 therefore does not violate equal
protection.
re Kapperman (1974) 11
Cal.3d 542, relied on by defendant, does not compel a different
result. In that case, the
California Supreme Court considered the constitutionality of section 2900.5,
which provides for accrual of presentence credits based on the actual number of
days served. Former subdivision (c) of
section 2900.5 provided that the presentence credits could only be earned by
those prisoners “‘who are delivered into the custody of the Director of
Corrections on or after the effective date of this section [i.e. March 4,
1972].’” (In re Kapperman, supra,
at p. 544, fn. 1.) Because the
defendant was delivered to the custody of the Director of Corrections before
March 4, 1972, he was not entitled to credit for actual days served before his
sentence was imposed. (
subdivision (c) violated the equal protection clauses of the federal and state
Constitutions because it treated two classes of similarly situated prisoners
differently, without a rational basis for doing so. (In re
Kapperman, supra, at
p. 545.)
credit for time actually spent in confinement before sentence was imposed,
rather than, as in this case, additional credit for a defendant’s good conduct
while confined. All prisoners affected
by the statutory change addressed in In
re Kapperman were similarly situated but were treated differently, meaning
that some received presentence custody credits while others did not, based
solely on the date their prison confinement began. No legitimate state interest justified the
denial of actual days of credit to some prisoners but not to others. As explained ante, in the present case, a different conclusion results from a
consideration of both prongs of the equal protection analysis. Until the operative date of the 2011
amendment to section 4019, the affected prisoners were not similarly
situated, and the legitimate purposes of the statute—to encourage good behavior
while reducing the fiscal stress on the prison system—justified a
prospective-only application of the statute.
We do not
address whether the 2011 amendment to section 4019 would violate the equal
protection clauses if a defendant committed a crime before October 1, 2011, but
was sentenced on or after October 1, 2011, such that the defendant’s
presentence conduct might be influenced by the new credit scheme of the
statute.
Defendant
is not entitled to additional presentence conduct credits because the 2011
amendment to section 4019 only applies prospectively, not in situations where
the crimes were committed and the sentencing occurred before the operative date
of October 1, 2011.
Disposition
The judgment is
affirmed.
FYBEL,
J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
