P. v. Spencer

















Filed 6/25/12 P. v. Spencer CA4/3













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS



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opinion has not been certified for publication or ordered published for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. KELLY SEAN SPENCER, Defendant and Appellant. In re KELLY SEAN SPENCER on Habeas Corpus.

G045566 (Super. Ct. No. 10WF2324) O P I N I O N G046182

Petition for a href="http://www.mcmillanlaw.com/">writ of habeas corpus and appeal from a
judgment of the Superior Court
of Orange County,
Dan McNerney, Judge. Petition denied and
judgment affirmed.

Leonard J. Klaif, under
appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Lynne G. McGinnis and Kristine A.
Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.



*
* *



A jury convicted
defendant Kelly Sean Spencer of stalking
(Pen. Code, § 646.9, subd. (a))href="#_ftn1" name="_ftnref1" title="">[1]
and two counts of making criminal threats
(§ 422). His victim was a
wheelchair-bound woman suffering from href="http://www.sandiegohealthdirectory.com/">cerebral palsy.

On appeal, defendant
contends the court erred by failing to stay execution of sentence on his
criminal threat convictions pursuant to section 654. Additionally, he petitions for a writ of
habeas corpus, contending he was denied the effective assistance of counsel at
sentencing because his attorney failed to request a hearing on his financial
ability to pay the costs of the probation
report. We consolidated his petition
with his appeal. We now deny his
petition and affirm the judgment.



FACTS



At the time of trial,
the victim, J.P., was 27 years old. She
suffered from cerebral palsy and had been in a wheelchair all her life.

J.P., who identified
defendant as an ex-boyfriend, had met him through a voice telephone dating
service in February, May, or June of 2010.
They talked several times a day for several hours. They discussed her disability and possibly
meeting in person. Defendant disclosed
he had served time in a federal prison for the manufacture and use of explosive
devices. But he claimed to have changed
and turned his life over to God.

Around June or July of
2010, defendant, who lived in Oklahoma City,
came to California, although J.P.
had asked him, on the morning he departed, not to come.href="#_ftn2" name="_ftnref2" title="">[2] For two days, defendant was “stranded” at
Union Station in Los Angeles. The next night, J.P. arranged for a motel
room, where she and defendant stayed for four to five nights and had consensual
sex. Defendant acted as J.P.’s caretaker
while they were at the motel. J.P.
introduced defendant to her cousin.

Defendant returned home
to Oklahoma. He and J.P. continued to date by phone. They talked about defendant becoming J.P.’s
caretaker in California. J.P. wanted defendant to return to California. In late July, she bought him a $100 train
ticket and mailed it to his house.

But social workers
informed J.P. that defendant could not pass the background check to become her
caretaker. Meanwhile, defendant had
become possessive and controlling, phoning J.P. from 30 to 40 times a day,
“wanting to know where [she] was, if [she] was cheating on him, if [she] was
faithful to him, who [she] was with because it was obvious to him that [she]
had to be with another man if [she] didn’t answer [her] phone.”

In the last week of
July, one week after sending defendant the train ticket, J.P. told him that
their relationship was unhealthy and asked him not to contact her again. During the conversation, J.P.’s
caretaker/roommate was present by phone.

Defendant was angry and
continued to phone J.P. from 50 to 100 times a day. J.P. changed her phone number twice and
replaced her phone twice, but defendant continued to contact her.

The threats became bad
in September. On September 13, defendant
said “he was going to kill [her], if he couldn’t have [her,] no one
would.” Defendant also phoned J.P.’s
cousin, Misty.

J.P. phoned defendant
many times and told him to stop. She
feared for her life, and felt helpless due to her href="http://www.sandiegohealthdirectory.com/">disability.

J.P. contacted the
police. An officer came to her home on
September 13 and again on September 16.
The officer observed that J.P. looked scared: her voice trembled, she was crying, and she
often had to be asked a question more than once because she was so upset. Defendant’s threatening phone calls
continued. On September 17, J.P. stopped
listening to the messages and turned the phone over to the police.

At trial, the jury heard
a recording of defendant’s recorded messages from the afternoon of September 16
through the evening of September 17. In
the messages, defendant threatened J.P., her family, and her
caretaker/roommate. He said he was
making a bomb (a “masterpiece” for which he had “bought pipes”) and was
“staying right here in this beautiful little city of [hers], until [he could]
fucking blow [her] fat ass outta that apartment!” He said he was “right down the street” from
her and watching her apartment building to see which unit was hers. In one of his final messages, he said,
“Fucking scumbag bitch! And now, you got
to die. . . . You cannot
live. . . . You’re going. You’re dying.
I will not sit still, until I see your fucking brains splattered all
over the front of that goddamn apartment complex, bitch!
. . . I want to see your hair all matted with blood and in
pieces. See your itty bitty pieces of
your skull scattered all around that place.”

Defendant called J.P.
stupid, retarded, disgusting, nasty, and raggedy, as well as a “triple chin,
ugly fat hippo,” and said her mother should have aborted her and that J.P.
should have died at birth. He accused
her of infecting him with AIDS; he said he had dramatically lost weight and had
nothing to lose since he was dying anyway.
(J.P. testified she tested negative for AIDS.)

But defendant also said
he loved J.P. and she was his whole world.
He just wanted to talk to her:
“All you got to do is talk to me on the phone, you stupid bitch!” “You are making it so hard that
you . . . can’t even talk to me on the phone!” “I wouldn’t do this if I didn’t love you so
much. You need to help me to stop. Just talk to me one time.” “[W]hy can’t you just answer the phone?”

J.P. believed, based on
the phone calls, that defendant was nearby.
The investigating police officer never found defendant in Orange County
or any information that defendant was in Orange County between September 14 and
22.



>Sentence

The court sentenced
defendant to the aggravated term of three years for stalking J.P., a
particularly vulnerable victim. The
court sentenced him to a consecutive term of eight months (one-third the
midterm) for making a criminal threat on September 13. The court sentenced him to a concurrent term
of two years (the midterm) for making a criminal threat on September 16, based
on the mitigating factor of defendant’s prior public service as a FEMA
volunteer. The court ordered defendant
to pay the cost of the probation report from his prison wages.



DISCUSSION



>The Court Did Not Err Under Section 654 by
Executing Sentence on the Stalking and Criminal Threats Convictions

Defendant
contends his only objective for stalking J.P. and for making criminal threats against her was to scare her. He concludes his sentence constitutes
multiple punishment violative of section 654.

Section
654, subdivision (a), provides: “An 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.” “The
test for determining whether section 654 prohibits multiple punishment has long
been established: ‘Whether a course of
criminal conduct is divisible and therefore gives rise to more than one act
within the meaning of section 654 depends on the intent and objective of the
actor. If all of the offenses were
incident to one objective, the defendant may be punished for any one of such
offenses but not for more than one.’” (>People v. Britt (2004) 32 Cal.4th 944,
951-952.) Our Supreme Court, although
critical of this test, has also reaffirmed it as the established law. The high court noted, “however, that cases
have sometimes found separate objectives when the objectives were either (1)
consecutive even if similar or (2) different even if simultaneous. In those cases, multiple punishment was
permitted.” (Id. at p. 952.)

“‘The defendant’s intent
and objective are factual questions for the trial court.” (People
v. Coleman (1989) 48 Cal.3d 112, 162.)
The court’s findings (express or implied) are subject to the substantial
evidence standard of review. (>Ibid.; People v. Blake (1998) 68
Cal.App.4th 509, 512.)

The
elements of the offense of stalking differ from those of the crime of making
criminal threats. As to stalking, the
court instructed the jury the People had to prove defendant: (1) maliciously harassed
another person, i.e., engaged in conduct “that seriously annoys, alarms,
torments, or terrorizes the [victim and] serves no legitimate purpose”; and (2)
made a credible threat intended to place the other person in reasonable fear
for her safety or that of her immediate family.
(CALCRIM No. 1301.) In contrast,
as to making criminal threats, the court instructed the jury the People had to
prove, inter alia, that: (1) defendant
threatened to unlawfully kill or cause great bodily injury to J.P.; and (2) the
threat was “so clear, immediate, unconditional, and specific that it
communicated to [J.P.] a serious intention and the immediate prospect that the
threat would be carried out.” (CALCRIM
No. 1300.)

Here, substantial
evidence supports the court’s implied finding defendant had more than one
objective for stalking J.P. and making the two charged criminal threats against
her. The September 13 and September 16
criminal threats against J.P. included his clear, immediate, unconditional, and
specific threats to kill her and to blow her up with a bomb.
His stalking offense, on the other hand, had a
separate identifiable objective.
Defendant harassed J.P. over a period of time between September 1 and 17
(as charged in the information) in order (at least in part) to annoy and
torment her. Substantial evidence of his
intention to annoy, torment, and harass her included: (1) the number and frequency of the phone
calls; (2) his mean words, name calling, and accusations against her; (3) his
efforts to make her feel guilty; and (4) his threats against her family. Defendant even stated in one phone call,
“[T]hat is not the whole goal to scare you, it’s not.” During this time period, he made some
ambiguous threats which did not threaten to kill or inflict great bodily injury
on J.P. For example, he threatened that
he would not leave and would chase her to the end of the world. He threatened to rape J.P.’s
roommate/caregiver. He threatened to
phone J.P.’s cousin, Misty, and to creep in the cousin’s back yard.

Defendant relies on >People v. Mendoza (1997) 59 Cal.App.4th 1333, but there, both parties
agreed the defendant’s “two convictions arose from a single act.” (Id.
at p. 1346.) Here, in contrast,
defendant phoned J.P. many, many times over a period of numerous days, compared
to the criminal threats made on two discrete days.



>Defendant
was Not Prejudiced by his Counsel’s Failure to Request a Hearing on Defendant’s
Ability to Pay the Costs of the Probation Report

In
his petition for a writ of habeas corpus, defendant contends his counsel
performed deficiently by failing to request a hearing on his ability to pay for
the preparation of a presentence probation report. Defendant asks this court to modify the
judgment to delete his obligation to pay this cost, or, alternatively, to
remand the matter to the trial court for a hearing on his ability to pay.>

To prove
an ineffective assistance claim, a defendant must show that (1) “counsel’s
performance was deficient,” and (2)
“the deficient performance prejudiced the defense.” (Strickland
v. Washington (1984) 466 U.S. 668, 687, 692.) A court need not “address both components of
the inquiry if the defendant makes an insufficient showing on one.” (Id.
at p. 697.) To prove prejudice, a
“defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (Id.
at p. 694.)

Under section 1203.1b,
subdivision (a), when a defendant is convicted of an offense and is the subject
of a presentence investigation and report, the probation officer must
determine the defendant’s ability to pay all or part of the reasonable cost of
conducting the investigation and preparing the report. The probation
department must develop a payment schedule based on the defendant’s income; the
schedule is subject to the court’s approval.
(Ibid.) The probation officer must inform the
defendant of his right to a hearing in which the court determines the
defendant’s ability to pay and the amount of the payment. (Ibid.) The defendant may waive the right to a court
hearing only by a knowing and intelligent waiver.

The probation report
stated defendant was employed as a house painter at a salary of $2,400 per
month and as a mechanic’s assistant at a salary of $300 a week. Defendant did not believe a felony conviction
would impact his employment, “as his employers are aware of his prior
convictions.” The probation officer
reported: “The defendant has been
notified of his right to a Financial Hearing pursuant to [section
1203.1b]. The Probation Department has
conducted a financial evaluation and determined that he has the ability to pay
for the costs of probation, including the cost of this report in the amount of
$2,762.17. It is recommended that he be
ordered to pay for the costs of probation in the amount of $136.78 per month
until paid in full.”

At the sentencing
hearing, the court ordered defendant to pay the preparation cost of the
probation report, i.e., $2,762.17, from his prison wages.

As exhibits to his
petition for a writ of habeas corpus, defendant attached his own declaration
and one from his trial counsel. In
defendant’s declaration, he declared:
(1) he had no real estate and no personal property beyond clothing
stored with his mother; (2) he could not pay the $2,762.17; (3) he did not read
the probation report and did not pay attention when the trial judge ordered him
to pay this amount as he was focused on his prison sentence; and (4) his trial
counsel never discussed his ability to pay with him.

In trial counsel’s
declaration, the attorney declared: (1)
he saw the probation department’s request in the probation report that
defendant be ordered to pay $2,762 for the report’s preparation cost; (2) he
recalled defendant “had limited financial resources” and had “spent
approximately three weeks on the street in Los Angeles until Traveler’s Aid
bought him a bus ticket back to his home in Oklahoma”; and (3) he (counsel)
“could have asked for a hearing [on defendant’s] ability to pay this amount,
and did not have a tactical reason for not doing so.”

We need not determine
whether counsel’s performance was deficient because we conclude there is no reasonable probability that, had
trial counsel asked for a hearing on defendant’s ability to pay, the result of
the proceeding would have been different. Defendant’s earning ability as a painter and
as a mechanic’s assistant, along with the reasonable requirement that his
prison wages be applied toward his payment plan, make it unlikely that the
court would have decreased or eliminated his payments towards the preparation
costs of the probation report.

Defendant relies on >People v. Le (2006) 136 Cal.App.4th 925, but that case is inapt. In Le,
the appellate court held that a consecutive sentence on a burglary conviction
violated section 654 and that trial counsel was ineffective concerning
excessive restitution and parole revocation fines. (Id.
at p. 928.) But trial counsel’s
error was prejudicial only because it was reasonably probable the trial court
would have imposed smaller fines “if trial counsel had objected both to the
improper consecutive sentence and to the trial court’s improper inclusion of the
burglary conviction when the court calculated the restitution
fine . . . .” (>Id. at p. 935.)



DISPOSITION



Defendant’s petition for
a writ of habeas corpus is denied. The
judgment is affirmed.







IKOLA,
J.



WE CONCUR:







ARONSON, ACTING P. J.







FYBEL, J.