P. v. Hernandez

 

 

 

 

 

 

 

 

 

 

 

Filed 7/25/13  P. v. Hernandez CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(San
Joaquin)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   MANUEL HERNANDEZ,                           Defendant and Appellant.

C064583   (Super. Ct. No. SF111494A)

 

 

 

            Following a
jury trial, defendant, Manuel Hernandez, was convicted of one count each of
stalking his ex-wife, Angela,href="#_ftn1"
name="_ftnref1" title="">[1]
and her current boyfriend, Joe Trujillo (Pen. Code, § 646.9, subd. (a) --
counts 1 & 4),href="#_ftn2" name="_ftnref2"
title="">[2]
stalking Angela while a temporary
restraining order was in effect (§ 646.9, subd. (b) -- count 2), one count
each of making criminal threats
against Angela and Joe (§ 422 -- counts 3 & 4), and a misdemeanor count of
contempt of court.  (§ 166, subd. (c)(1)
-- count 8.)  On appeal, he contends:  (1) there was not substantial evidence to
support the stalking and criminal threats charges as related to Joe (counts 4
& 7); (2) the consecutive sentences imposed on the stalking and criminal
threats convictions (counts 2, 3, 4 & 7) violated section 654’s prohibition
against multiple punishment; (3) the court imposed an unauthorized sentence by
selecting count 2 as the principal term; (4) in finding no mitigating
circumstances, the court did not exercise informed sentencing discretion; and,
(5) the convictions for stalking Angela and contempt of court (counts 1 &
8) should be vacated given his conviction for stalking Angela while a temporary
restraining order was in effect.  We
agree that the consecutive sentences imposed on counts 3 and 4 must be stayed
under section 654 and that the conviction for count 1 must be vacated in light
of the conviction on count 2.  In all
other respects, we affirm the judgment.

FACTUAL BACKGROUND

            Defendant
and Angela were married in 1992 and divorced 10 years later.  At the time of their marriage, Angela had two
children from a previous relationship, a son and a daughter, who defendant
raised as his own.  Defendant and Angela
also had two sons from their relationship. 
During the course of their relationship, defendant abused Angela and
sustained battery convictions in 2001 and 2003. 


            After
defendant and Angela’s relationship ended, Angela and Joe began a relationship
around 2003 or 2004 that lasted about six years.  Joe moved in with Angela and the children in
2004. 

            In 2006,
defendant came to Angela and Joe’s home and argued with Angela about child
support.  Defendant was angry and
yelling, and eventually broke a window in the house.  As a result of this incident, defendant was
convicted of domestic violence and Angela received a protective order against
him. 

            On February 17, 2009, while driving home
from work, Joe saw defendant driving toward the home Joe and Angela
shared.  Hoping to distract defendant
from going to the house, Joe drove away from the home.  Defendant followed him for about three
blocks, then reversed course and went to the home.  Joe also went to the home, and when he
arrived, defendant was there.  There had
been problems between the two in the past, arguments with a great deal of swearing
and threats but no physical violence. 
When Joe got out of his car, defendant started swearing at him and
threatening him.  Joe told defendant he
was calling the police.  Defendant
yelled, “Fuck you.  I’m going to kill
you.  I’m going to kill your mom.”  Joe had heard similar threats from defendant
before, without having been subjected to actual violence, so he did not think
anything of defendant’s threats.  Joe
called the police because he and Angela were “just tired of everything that was
going on.  We wanted to get rid of him .
. . as much as we could out of our life.” 
Joe also called the police because there was a restraining order in
place against defendant. 

            About one
week later, after a night of drinking, Angela woke up and found her daughter
sleeping on the couch.  Joe was in the
daughter’s bed.  Angela yelled at him and
asked what he was doing in her daughter’s bed. 
Defendant was still groggy from the night before and had not realized he
was in the daughter’s bed rather than his own. 


            Throughout
the day, Angela repeatedly tried to discuss the matter with Joe, but he would
not wake up.  Joe slept most of the day
and could not be roused.  Joe remained in
bed until the afternoon when his bedroom door was kicked in and he was severely
beaten by two men.  Joe identified
defendant as one of the assailants.  He
said he saw defendant’s face and heard him say, “I got you now, mother fucker,”
and, “What did you do to my daughter?” 
Joe claimed the other man choked him, while defendant punched him in the
face and ribs.  They also slammed the
door on his face several times. 

            Sometime
between 3:00 and 4:00 p.m. Joe called Angela and told her, “[Defendant] jumped
me.”  Angela called 911.  When emergency workers arrived, they found
Joe unconscious on the floor.  Joe was
hospitalized for a week due to his injuries. 
He had two orbital fractures and bruising on the left side of his
body.  Angela stayed with Joe in the
hospital for a week, and then ended their relationship. 

            On March 7,
2009, a few days after leaving the hospital, defendant called Angela’s cell
phone and said, “Bitch, once I find you, I’m going to kill you.”  The threat frightened Angela and she refused
to return home.  Knowing what defendant
had done in the past and what he was capable of, the threat made Angela very
afraid.  She “knew he was coming after
[her] next.”  She did not return to her
home, instead she moved around and lived in different places. 

            On March
13, 2009, defendant called Angela again and said, “Bitch, once I find you, I’m
going to kill you.”  Having experienced
defendant’s violence in the past, Angela was again very scared. 

            Also on
March 13, 2009, more than two weeks after the assault and approximately one
week after Joe was discharged from the hospital, defendant called Joe and said,
“You think you’re going to get me locked up. 
Well you’re not.  You fucked
up.”  He also threatened to kill Joe
“this time.”  This time Joe took the
threat seriously because he believed defendant had recently acted on his
violent threats and he was afraid defendant would do so again. 

            On March
31, 2009, defendant called Angela and said, “I’m going to catch you.  Once I catch you, I’m going to kill
you.”  Angela remained very afraid of
defendant because of his history of violence. 
She believed if he caught her, he would “have done some damage.”  Defendant was not taken into custody until
April 28, 2009. 

PROCEDURAL
HISTORY

            Defendant
was charged with stalking both Angela and Joe (§ 646.9, subd. (a) -- counts 1
& 4), stalking Angela while a temporary restraining order was in effect (§
646.9, subd. (b) -- count 2), making criminal threats against both Angela and
Joe (§ 422 -- counts 3 & 7), assault with force likely to produce great
bodily injury (§ 245, subd. (a)(1) -- count 5), first degree residential
burglary (§ 459 -- count 6), and misdemeanor contempt of court.  (§ 166, subd. (c)(1) -- count 8.)  As to the burglary charge, it was further
alleged the dwelling was occupied.  (§
667.5, subd. (c)(21).)  It was also
alleged that defendant had sustained a prior serious felony conviction (§§ 667,
subd. (d), 1170.12, subd. (b)) and a prior strike conviction.  (§ 667, subd. (a).)  As to counts 4 through 6, it was also alleged
defendant inflicted great bodily injury. 
(§ 12022.7, subd. (a).) 

            Following a
jury trial, defendant was found not guilty on the assault and burglary charges,
and the great bodily injury allegations were found not true.  He was found guilty on all the remaining
counts.  In bifurcated proceedings, the
jury found the prior conviction allegations true. 

            The court denied probation and sentenced defendant to an
aggregate term of 17 years in state prison. 
Count 2 was designated as the principal term and the upper term sentence
of four years, doubled pursuant to the strike, was imposed.  On counts 3, 4 and 7, the court imposed
consecutive eight-month sentences (one-third the midterm), doubled pursuant to
the strike.  The court imposed a
five-year term for the section 667, subdivision (a) prior strike conviction
enhancement.  The sentence on count 1 was
stayed pursuant to section 654. 

DISCUSSION

I

            Defendant
contends there is not substantial evidence supporting his convictions for
stalking and making criminal threats against Joe.  We are not persuaded.

            “In reviewing a claim of insufficient evidence, we
review the record in its entirety, considering the evidence most favorably to
the prevailing party, and determine whether any rational trier of fact could
have found the prosecution proved its case beyond a reasonable doubt.  [Citation.]” 
(People v. Zavala (2005) 130 Cal.App.4th 758, 766 (>Zavala).)  In making this assessment, we draw all
reasonable inferences from the record in support of the judgment and do not
weigh the evidence or decide the credibility of the witnesses.  (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

            >Stalking

            Defendant
argues there is not sufficient evidence of stalking because that offense
requires a course of conduct established by two or more acts, and here there
are not two qualifying acts.  He reaches
this conclusion, by claiming the February 17 threat does not qualify because Joe
testified he was not frightened by defendant’s threat to kill Joe and his
mother; and, the alleged assault on February 26 does not qualify because the
jury found defendant not guilty on that charge. 
Accordingly, he argues there is only one remaining qualifying act, the
March 13 threat, and that is not sufficient to establish stalking.  Defendant is wrong.

            The
elements of stalking are “(1) following or harassing another person; (2) making
a credible threat; and (3) intending to place the victim in reasonable fear for
her safety.”  (People v. Uecker (2009) 172 Cal.App.4th 583, 594 (>Uecker); § 646.9.)  Harassing another person is directing a
“course of conduct . . . at a specific person that seriously alarms, annoys,
torments, or terrorizes the person . . . .” 
(§ 646.9, subd. (e).)  Defendant’s
argument relies on his parsing out each individual event and analyzing it as a
discrete incident to determine whether it amounts to harassment.  However, it is the entirety of the course of
conduct that must be harassing, not each individual act within the course of
conduct.  That is, taken separately the
acts need not be terrorizing or alarming, if when taken as a course of conduct,
they rise to that level on a cumulative basis. 
(§ 646.9, subds. (e) & (f); People
v. Culuko (2000) 78 Cal.App.4th 307, 325.) 
Furthermore, contrary to defendant’s argument, it is not necessary that
each individual act making up the course of conduct contain within it a
credible threat.  Rather, at some point
in the course of conduct, a singular credible threat must be made.  That threat may even be implicit in the
pattern of conduct.  In assessing the
course of conduct and whether a threat occurred, we must consider the “entire
factual context, including the surrounding events.”  (People
v. Falck (1997) 52 Cal.App.4th 287, 298; accord, Uecker, supra, 172 Cal.App.4th at p. 598, fn. 10.) 

            Viewing the
evidence in the light most favorable to the verdict and in its entirety as a
course of conduct, rather than discrete instances of conduct, we find there is
substantial evidence supporting defendant’s conviction for stalking Joe. 

            Over the
course of a number of years, defendant was repeatedly violent towards Joe’s
girlfriend, Angela, and had a history of fights and arguments with Joe.  This history included repeated fights at Joe
and Angela’s home, with defendant screaming and yelling at them.  As a
result of one  particularly violent
argument at Angela’s and Joe’s home, there was a restraining order in place
against defendant.  Despite the restraining order, on February
17, defendant followed Joe for three blocks and then went to Angela and Joe’s
home.  When Joe arrived at the home
shortly thereafter, he and defendant argued, with defendant yelling and swearing
at Joe.  Ultimately, defendant threatened
to kill Joe and his mother.  Because of
the restraining order and the fact that Joe and Angela were “just tired of
everything that was going on.  We wanted
to get rid of him . . . as much as we could out of our life,” Joe called the
police.  It was reasonable for the jury
to conclude this incident was part of a pattern of conduct by defendant which
Joe found seriously alarming or annoying. 
(See Zavala, supra, 130 Cal.App.4th at p. 767.) 

            A month
later, after Joe accused defendant of severely beating him, defendant called
Joe, referenced the beating accusation, and threatened to kill Joe “this
time.”  It was reasonable from the facts
of this case for the jury to infer this was a credible threat made with the
intention of placing Joe in fear.  At the
time of the phone call, Joe believed defendant had broken into his home and
severely beaten him.  Defendant knew
this.  Regardless of the accuracy of that
belief, defendant’s phone call referencing the accusations and threatening the
next beating would result in Joe’s death sought to utilize Joe’s belief to
intimidate him and put him in fear.  That
the jury ultimately did not find defendant guilty of the assault, does not mean
they could not consider Joe’s belief defendant had committed the assault in determining
whether defendant was harassing Joe. 
(See Zavala, supra, 130 Cal.App.4th at p. 767, fn. 5.)  This evidence supported not only the
conclusion Joe reasonably feared defendant but also that defendant acted with
the intent to induce that fear.  (>People v. Falck, supra, 52 Cal.App.4th
at p. 299; Uecker, supra, 172
Cal.App.4th at p. 597.)  Considering the
entire context of the case, the history between the parties, defendant’s course
of conduct of following Joe, repeatedly showing up at his home in spite of a
restraining order, and threatening him, it was reasonable for the jury to
conclude defendant’s conduct towards Joe constituted harassment, as defined in
the stalking statute.  Accordingly, there
was substantial evidence to support the stalking conviction.

            >Criminal Threatshref="#_ftn3" name="_ftnref3" title="">[3]

            As to the
criminal threats charge, defendant reiterates his claim that the February 17
and 26 incidents are excluded from consideration, leaving only the March 13
phone call.  With no analysis of the
points, defendant simply asserts in conclusory fashion, “the threat was not so
unequivocal, unconditional, immediate and specific that it communicated to
[Joe] a serious intention and the immediate prospect that the threat would be
carried out.  [Citations.]  Additionally, although [Joe] testified that
he was afraid, the evidence did not sufficiently establish that his fear was
‘sustained.’  [Citations.]  Finally, [Joe’s] fear was not reasonable
under the circumstance when [defendant] was not guilty of the February 26
incident.”  We agree that the February 17
and 26 incidents cannot support the conviction for criminal threats, but
disagree about the March 13 phone call.

            “[T]o prove
the offense of making criminal threats under section 422[,] [t]he prosecution
must prove ‘(1) that the defendant “willfully threaten[ed] to commit a crime
which will result in death or great bodily injury to another person,” (2) that
the defendant made the threat “with the specific intent that the statement . .
. is to be taken as a threat, even if there is no intent of actually carrying
it out,” (3) that the threat . . . was “on its face and under the circumstances
in which it [was] made, . . . so unequivocal, unconditional, immediate, and
specific as to convey to the person threatened, a gravity of purpose and an
immediate prospect of execution of the threat,” (4) that the threat actually
caused the person threatened “to be in sustained fear for his or her own safety
or for his or her immediate family's safety,” and (5) that the threatened
person's fear was “reasonabl[e]” under the circumstances.’  [Citations.]” 
(In re George T. (2004) 33
Cal.4th 620, 630.)

            “[S]ection
422 requires that the communication must be sufficient ‘on its face

and under the circumstances in which it is made’ to constitute a criminal
threat.  This means that the
communication and the surrounding circumstances are to be considered together.
. . .  ‘[I]t is the circumstances under
which the threat is made that give meaning to the actual words used. . .
.’  (People
v. Butler (2000) 85 Cal.App.4th 745, 753 . . . .)”  (In re
Ryan D. (2002) 100 Cal.App.4th 854, 860.) 
That the threat must be “so unequivocal, unconditional, immediate, and
specific as to convey to the person threatened, a gravity of purpose and an
immediate prospect of execution of the threat,” does not mean the threat must
be absolutely unequivocal, unconditional, immediate, and specific.  Rather, these qualities are factors to be
considered, along with all the circumstances surrounding the threat, to
determine whether the threat conveyed a gravity of purpose and immediate
prospect of execution to the victim.  (>In re George T., supra, 33 Cal.4th at p.
635; People v. Bolin (1998) 18
Cal.4th 297, 340; People v. Smith
(2009) 178 Cal.App.4th 475, 480.)  The
history between the parties is also among the relevant circumstances to
consider in assessing the sufficiency of the threat.  (People
v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) 

            Defendant
and Joe had a volatile and intertwined history. 
Since Joe was living with defendant’s ex-wife and children, defendant
knew where Joe lived and had regular access to the home.  On at least one occasion at the home,
defendant’s anger during a fight escalated to violence and resulted in the
issuance of a restraining order.  Joe was
severely beaten when someone he identified as defendant broke into his
home.  Defendant knew of both Joe’s
belief and the accusation to the police. 
Shortly after the beating, defendant called Angela on three separate
occasions and threatened to kill her. 
Based on that threat, Angela was too afraid to return to the house.href="#_ftn4" name="_ftnref4" title="">[4]  One week after Joe was discharged from the
hospital, defendant called him, referenced Joe’s allegations and the beating
and threatened to kill him “this time.” 
This threat is not equivocal, conditional or ambiguous. 

            To the
extent this threat can be challenged, it is only as to whether the threat was
sufficiently immediate.  “Immediate,” as
used in the statute, means “that degree of seriousness and imminence which is
understood by the victim to be attached to the future prospect of the threat
being carried out . . . .”  (>People v. Melhado (1998) 60 Cal.App.4th
1529, 1538, italics omitted.)  “‘A threat
is not insufficient simply because it does “not communicate a time or precise
manner of execution, section 422 does not require those details to be
expressed.”  [Citation.]’  [Citation.] 
. . . [T]he defendant must intend for the victim to receive and
understand the threat, and the threat must be such that it would cause a
reasonable person to fear for his or her safety or the safety of his or her
immediate family.  [Citation.]”  (People
v. Wilson, supra, 186 Cal.App.4th at p. 806.)  Under the circumstances of this case, the
threat to Joe met this standard.  The
threat was delivered by a man with a demonstrated willingness to commit violent
acts, it came on the heels of continuing threats of violence to Angela, who Joe
lived with, and Joe’s recent release from the hospital after having been
severely beaten by a person he believed was defendant.  Thus, the threat was sufficiently
“immediate.”

            There is
also sufficient evidence to support the finding Joe was in sustained fear.  Under the statute, “sustained” means “a
period of time that extends beyond what is momentary, fleeting, or transitory.
. . .  The victim's knowledge of
defendant's prior conduct is relevant in establishing that the victim was in a
state of sustained fear. 
[Citation.]”  (>People v. Allen (1995) 33 Cal.App.4th
1149, 1156.) 

            Joe
testified he took this threat from defendant seriously.  He believed defendant had actually acted upon
his earlier threats and would again.  He
also called the police about the threat. 
He knew defendant’s violent past. 
He knew defendant knew where Joe lived, regularly came into the home,
had previously committed violent acts at the home, and Joe believed defendant
had broken into his home to beat him. 
Defendant was not in custody when the call was made, and was not taken
into custody until late April.  During
that time, defendant had access to Joe and his home.  It was reasonable for the jury to infer from
this evidence that Joe remained in fear that defendant’s threat would be
carried out until such time as defendant was taken into custody.  (See People
v. Allen, supra, 33 Cal.App.4th at p. 1156; People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.)

            As for
defendant’s final complaint that Joe’s fear was not reasonable because
defendant was found not guilty of the February 26 assault, we are not
persuaded.  It is true that the jury did
not convict defendant of the February 26 assault.  However, whether or not defendant actually
beat Joe is not the point.  The point
here is that at the time, Joe believed
defendant had beaten him.  Defendant was
aware of this belief and utilized that belief to instill fear in Joe, by
threatening to kill him “this time.”  It
was not necessary that the jury find defendant actually committed the assault
against Joe to appropriately consider Joe’s belief about the beating in
assessing the reasonableness of Joe’s fear. 
Based on all the circumstances of this case, there was href="http://www.fearnotlaw.com/">substantial evidence supporting the
criminal threats conviction.

II

            Defendant
next contends the trial court erred in imposing consecutive sentences on the
counts of stalking Angela while a restraining order was in effect (count 2),
making criminal threats against Angela during the same period (count 3),
stalking Joe (count 4) and making criminal threats against him during the same
period (count 7).href="#_ftn5" name="_ftnref5"
title="">[5]  He argues the imposition of these consecutive
sentences violates the section 654 prohibition on multiple punishments.  Under the specific facts of this case, we
agree defendant cannot be punished for both stalking and making criminal threats
against Angela, nor can he be punished for both stalking and making criminal
threats against Joe.  Section 654 does
not, however, prohibit defendant from being punished separately for the crimes
against Angela and the crimes against Joe. 


            Section
654, subdivision (a) provides, in pertinent part, “[a]n act or omission that is
punishable in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more
than one provision. . . .”  Section 654
is intended “to insure that a defendant's punishment will be commensurate with
his [or her] culpability.”  (>People v. Perez (1979) 23 Cal.3d 545,
552.)  The statute bars multiple
punishment for both a single act that violates more than one criminal statute
and multiple acts, where those acts comprise an indivisible course of conduct
incident to a single criminal objective and intent.  (People
v. Latimer (1993) 5 Cal.4th 1203, 1208; Neal
v. State of California (1960) 55 Cal.2d 11, 19, disapproved on another
ground in People v. Correa (2012) 54
Cal.3d 331, 334, 338.)  Conversely, where
a defendant commits multiple criminal offenses during a single course of
conduct, he or she may be separately punished for each offense that he or she
committed pursuant to a separate intent and objective.  (People
v. Beamon (1973) 8 Cal.3d 625, 637-639.) 
Multiple criminal objectives may “be a predicate for multiple punishment
only in circumstances that involve, or arguably involve, multiple acts.  The rule does not apply where . . . the
multiple convictions at issue were indisputably based upon a single act.”  (People
v. Mesa (2012) 54 Cal.4th 191, 199.) 
Whether multiple convictions were part of an indivisible transaction is
primarily a question of fact for the trial court.  (People
v. Coleman (1989) 48 Cal.3d 112, 162; People
v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)  We review a challenge under section 654 for
substantial evidence to support the trial court's determination.  (People
v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.)

            Stalking
requires a course of conduct, that is, at least two acts, be directed at the
victim.  (§ 646.9, subd. (f).)  Here, the conduct that constituted stalking
as to each victim was part of a course of conduct consisting of multiple
threats alleged to have occurred during the same time period against that same
victim.   As to Joe, in addition to the
March 31 threat to kill Joe, the course of conduct included defendant following
Joe home on February 17, arguing with him, threatening to kill Joe’s mother and
violating the restraining order.  The
conviction for stalking Joe cannot stand without the conduct which also serves
as the basis for the conviction for criminal threats against Joe.  In other words, as to Joe, punishing both the
stalking and the criminal threats is punishing the same single act.  This violates section 654. 

            As to
Angela, the course of conduct consisted of violating the restraining order and
three separate threats to kill her.  It is
less clear that the conviction for stalking Angela rests on the same single act
as the conviction for making criminal threats against her.  The jury was given a unanimity instruction as
to the criminal threats.  That is, they
had to agree as to which threat constituted a criminal threat.  That threat could be excluded from the
stalking charge and there would still be sufficient acts on which to sustain a
conviction for stalking.  Nonetheless, we
find defendant cannot be separately punished for both the stalking and criminal
threats against Angela, as there was no evidence presented that suggested
defendant had any objective in either the criminal threats or the stalking to
do anything other than frighten and threaten Angela.  The prosecutor did not argue there were any
other distinct intents between the offenses. 
Rather, the prosecutor specified defendant’s intent in both stalking
Angela (and Joe) and making criminal threats was to “scare, frighten,
threaten.”  On the record before us, we
can discern no separate criminal objective between the stalking and criminal
threats as to each separate victim. 
Thus, the convictions for making criminal threats against Angela in
count 3 and stalking Joe in count 4 should have been stayed under section 654.

            However,
there is evidence to support the conclusion reached by the court that as to
each separate victim, there were separate criminal objectives.  These were different victims and different
specific acts were alleged to each.  In
threatening and stalking Angela, defendant’s intent was to make her
afraid.  There is no evidence his purpose
in threatening Angela was to make Joe afraid. 
Similarly, in threatening and stalking Joe, defendant’s intent was to
make Joe fearful.  There is no evidence
his intent in committing those acts was directed at making Angela afraid.  Accordingly, the court correctly imposed
consecutive sentences as to count 2, stalking Angela in violation of a
restraining order, and count 7, making criminal threats against Joe.  (People
v. Liu (1996) 46 Cal.App.4th 1119, 1135.) 


III

            Defendant
next challenges the court’s selection of count 2 as the principal term, and the
17-year aggregate sentence imposed as a result of that selection.  Defendant contends that the principal term
must be the term which, combined with any applicable enhancements, results in
the longest term of imprisonment. 
Defendant continues, count 2, stalking in violation of a restraining
order, had the longest available term of imprisonment when considered without
an enhancement.  However, he claims,
stalking was not an offense to which the five-year prior serious felony
enhancement could attach.  Rather, the
enhancement could only attach to a serious felony, one of the criminal threat
charges.  Thus, the criminal threat
count, with a maximum term of three years, combined with the five-year
enhancement, represented the longest possible term of imprisonment and should
have been selected as the principal term. 
We disagree. 

            Under
section 1170.1, subdivision (a), “when any person is convicted of two or more
felonies, . . . the aggregate term of imprisonment for all these convictions
shall be the sum of the principal term, the subordinate term, and any
additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1.  The principal term shall consist of the
greatest term of imprisonment imposed by the court for any of the crimes,
including any term imposed for applicable specific
enhancements. . . .”  (§ 1170.1,
subd. (a), italics added.)  The statute
makes clear there are two distinct types of enhancements, those which
specifically attach to the term of imprisonment for an underlying offense and
those which add generally to the aggregate term of imprisonment.  (People
v. Tassell (1984) 36 Cal.3d 77, 90, overruled on a different point by >People v. Ewoldt (1994) 7 Cal.4th 380,
401.)  “In so doing, it makes it very
clear that enhancements for prior convictions do not attach to particular
counts but instead are added just once as the final step in computing the total
sentence.”  (People v. Tassell, supra, 36 Cal.3d at p. 90, fn. omitted.) 

            Sentence
enhancements which add generally to the aggregate term of imprisonment are
those that go to the nature of the offender; that is, they are attributable to
defendant’s status as a repeat offender. 
These enhancements have nothing to do with the particular counts charged
and do not attach to any particular underlying offense.  By contrast, specific enhancements that
attach to a particular term of imprisonment for an underlying offense are those
that go to the nature of the offense. 
These enhancements arise from the particular circumstances of the crime
and what defendant did when the offense was committed.  (People
v. Coronado (1995) 12 Cal.4th 145, 156; People
v. Tassell, supra, 36 Cal.3d at p. 90.) 
These enhancements include issues such as firearm use or infliction of
great bodily injury.  Defendant contends
section 667, subdivision (a) is a specific enhancement which attaches to the
current serious felony, rather than an enhancement based on his status as a
recidivist.  He is wrong.

            Under
section 667, subdivision (a), “any person convicted of a serious felony who
previously has been convicted of a serious felony . . . shall receive, in
addition to the sentence imposed by the court for the present offense, a
five-year enhancement for each such prior conviction on charges brought and
tried separately.”  This five-year
enhancement for a prior serious felony conviction was added as part of a
statutory and constitutional scheme intended to “increase sentences for
recidivist offenders.”  (>People v. Jones (1993) 5 Cal.4th 1142,
1147; see also People v. Williams
(2004) 34 Cal.4th 397, 404.)  The
language of the statute itself makes clear the enhancement is for the prior
convictions, not the circumstances surrounding the commission of the current
serious felony.  The only requirement
related to any current offense is that at least one conviction be a serious
felony.  This requirement does not make
the enhancement a specific enhancement attaching to the serious felony, as the
enhancement is unrelated to the manner in which the particular serious felony
was committed. 

            Here,
the current serious felony offense was making criminal threats.  Making criminal threats is always a serious
felony offense.  The section 667,
subdivision (a) enhancement did not allege anything that “enhanced” the manner
in which the criminal threat was made, thereby making the threat itself worthy
of greater punishment.  Rather, defendant
is deserving of greater punishment because this is not his first serious
felony; that is, because of his recidivism. 
The enhancement pertains to a prior offense and defendant’s status as a
repeat offender.  Because the enhancement
under section 667, subdivision (a) goes to the nature of the offender, rather
than the offense, it does not attach to a particular offense.  Accordingly, the court correctly computed
defendant’s sentence designating count 2 as the principal term. 

IV

            Defendant also challenges the
sentence imposed contending the trial court “failed to exercise an informed
sentencing discretion” by finding there were no mitigating circumstances.  Specifically, he argues the court disregarded
the evidence that defendant was a good and loving father whose children needed
him, and erroneously limited its consideration of mitigating factors to those
delineated in the rules of court.  We
disagree.

            Sentencing courts have wide
discretion in weighing aggravating and mitigating factors (People v. Evans (1983) 141 Cal.App.3d 1019, 1022) and may balance
them in qualitative as well as quantitative terms.  (People
v. Lambeth (1980) 112 Cal.App.3d 495, 501.) 
We presume the trial court has considered all relevant criteria in
deciding a defendant's sentence.  (Cal.
Rules of Court, rule 4.409.) 
Furthermore, we must affirm unless there is a clear showing that the
chosen sentence was arbitrary or irrational. 
(People v. Hubbell (1980) 108
Cal.App.3d 253, 260.) 

            It is error for a sentencing court
to disregard an undisputed factor in mitigation.  (>People v. Burney (1981) 115 Cal.App.3d
497, 505 [the trial court erroneously failed to consider circumstances in
mitigation enumerated in former Cal. Rules of Court, rule 423].)  “However, many alleged factors in mitigation are
disputable either because they may not be established by the evidence or
because they may not be mitigating under the circumstances of a particular
case.  Where an alleged factor in
mitigation is disputable, the court may find an absence of mitigating factors
and need not explain the reason for its conclusion.  [Citations.]” 
(In re Handa (1985) 166
Cal.App.3d 966, 973.) 

            Here, the court read and considered
the probation report, sentencing briefs submitted by the parties, and letters
from two of defendant’s sons.  At the
sentencing hearing, defendant and his daughter spoke.  Angela also spoke at the sentencing
hearing. 

            The court acknowledged the stormy
familial relationships in the case created a difficult situation and that
defendant’s children loved and respected him. 
The
court found defendant’s prior record had led to the current more serious
offenses, and that in
particular because of his children, defendant should have worked on the
problems which led to this case.  The court noted the various programs and
opportunities defendant had been given, particularly with regard to domestic
violence classes, and that he had not managed to benefit from them or to “put
things right” for either himself or “[i]n a much bigger context . . . for [his]
kids.”  The court also reflected on
defendant’s age, which should have come with some attendant maturity.  The
court recognized the children had a troubled history and while their troubles
were not entirely defendant’s fault, he was a significant part of their difficulties.  The court also reflected on defendant’s significant criminal
history and the existence of a prior strike offense.  Defendant’s criminal history included 14 convictions, eight
domestic violence cases involving Angela and at least one other woman, and two
current strike offenses.  In the course
of 10 grants of probation, defendant had 13 probation violations and was on
probation when these offenses were committed. 
Based
on the evidence before it, the court felt compelled to give defendant the upper
term. 

       Defendant claims this record reveals the
court “erroneously limited [its] consideration of mitigating factors to those
specified in the rules . . . .  The court
could have and should have considered [defendant’s] loving relationship with
his own and Angela’s children, his fatherly guidance, and this need of a loving
dad as mitigating factors.”  The court
did not disregard defendant’s relationships with his children.  In fact, the record reveals the court
considered defendant's arguments, including his relationship with his children,
but ultimately disagreed with defendant's conclusion that that relationship
qualified as a mitigating factor.  (See >People v. Thompson (1982) 138 Cal.App.3d
123, 127.)  The mere assertion of a
mitigating factor by a defendant does not establish that assertion as a
fact.  (People v. Regalado (1980) 108 Cal.App.3d 531, 538.)  Defendant’s relationships with his children
had not led him to benefit from the multiple opportunities he had been given to
address his behavior and defendant was a significant contributing factor to his
children’s difficulties.  Considering
these facts, and in view of defendant’s lengthy criminal history, multiple
domestic violence offenses against the mother of his children and at least one
other woman, and failure to take advantage of multiple grants of probation and
self-help programs, the court did not abuse its
discretion in finding that a father’s love for his children, and their love for
him, was not a mitigating factor under the circumstances of this case. 

V

            Relying
on People v. Muhammad (2007) 157
Cal.App.4th 484, 494 (Muhammad),
defendant contends we should vacate his conviction for stalking under section
646.9, subdivision (a) (count 1), in light of his conviction for stalking in
violation of a restraining order under section 646.9, subdivision (b) (count
2).  The People properly concede that the
conviction under section 646.9, subdivision (a) must be vacated. 

Although defendant argues that
stalking is a lesser included offense of stalking in violation of a restraining
order, it is not.  Rather, under section
646.9, there is a single offense of stalking. 
The elements of the substantive offense of stalking are set out in
section 646.9, subdivision (a).  When
that offense is committed under specified circumstances, the penalty provisions
of subdivisions (b) and (c) are triggered. 
(§ 646.9, subds. (b) & (c); Muhammad,
supra, 157 Cal.App.4th at p.
494.)  These increased penalties
are not substantive elements of the offense. 
(Id. at pp. 493-494.) 

            In
this case, defendant committed the crime of stalking against Angela when a
temporary restraining order was in effect protecting her.  “Thus, at the time defendant committed
the single offense of stalking, his history of misconduct
satisfied” a separate penalty provision, which “required that he be subject to
a greater punishment than imposed in section 646.9[, subdivision] (a).  [Citation.] 
Though the single stalking offense was charged in [two] separate counts,
defendant could be convicted of only one count of stalking.”  (Muhammad,
supra, 157 Cal.App.4th at p. 494,
original italics.) 

In accordance with >Muhammad, subdivisions (a) and (b) of
section 646.9 do not create separate criminal offenses.  As the same conduct forms the basis for the two
charges, defendant cannot be convicted of having violated both
subdivisions.  Since count 2 was selected
as the principal term, it is appropriate to affirm that conviction and vacate
defendant’s conviction on count 1 for violation of section 646.9, subdivision
(a).

            Defendant
also contends his conviction for misdemeanor contempt (§ 166, subd. (c)(1))
must be vacated as it is a lesser included offense of stalking in violation of
a restraining order.  The reasoning set
forth above also controls the result on this issue. 

            Defendant’s
argument here rests on the assumption that section 646.9, subdivision (b)
defines a distinct substantive offense of stalking in violation of a
restraining order.  As above, it does
not.  (Muhammad, supra, 157
Cal.App.4th at p. 494.)  “The provisions
relating to the violation of a restraining order do not define a crime.  They merely create a punishment
enhancement.”  (People v. Kelley (1997) 52 Cal.App.4th 568, 576, fn. omitted.)  A penalty provision is not an element of the
crime.  (Muhammad, supra, 157
Cal.App.4th at p. 494.) 

            A
defendant may not be convicted of an offense that is included within another
offense.  (People v. Reed (2006) 38 Cal.4th 1224, 1227 (Reed).)  To determine whether
one offense is necessarily included within the other, we look to the statutory
elements of the offenses.href="#_ftn6"
name="_ftnref6" title="">[6]  “[I]f the statutory elements of the greater
offense include all of the statutory elements of the lesser offense, the latter
is necessarily included in the former.” 
(Reed, supra, 38 Cal.4th at p.
1227.) 

            The
statutory elements of stalking are:  (1)
the defendant willfully and maliciously harassed or willfully, maliciously, and
repeatedly followed another person; (2) the defendant made a credible threat
with the intent to place the other person in reasonable fear for his or her
safety or for the safety of his or her immediate family; and (3) the
defendant's conduct was not constitutionally protected. (§ 646.9, subds. (a),
(f), (g).)  name="SDU_8">The statutory elements of violating a court order are:  (1) a court lawfully issued a written order;
(2) the defendant knew about the court order and its contents; (3) the
defendant had the ability to follow the court order; and (4) the defendant
willfully violated the court order.  (§
166.) 

            Plainly, the
statutory elements of stalking do not include all the elements of violating a
restraining order.  Accordingly, the
crime of stalking can be committed without also violating a court order.
Therefore, violation of a court order is not a lesser included offense of
stalking.

DISPOSITION

            The
conviction for count 1 is vacated.  The
consecutive sentences on counts 3 and 4 are stayed pursuant to section
654.  The trial court is directed to
prepare an amended abstract of judgment reflecting these modifications and to
forward a copy of the amended abstract to the href="http://www.mcmillanlaw.com/">Department of Corrections and Rehabilitation.  As so modified, the judgment is
affirmed. 

 

                                                                                              NICHOLSON      , J.

 

We concur:

 

          BLEASE          , Acting P. J.

 

 

          DUARTE         , J.