People v. Dyas CA2/2 ( 2014 )

Filed 9/9/14 P. v. Dyas CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B253217
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA060094)
v.
GREGORY DYAS,
Defendant and Appellant.
THE COURT:*
A jury found appellant Gregory Dyas guilty of stalking (Pen. Code, § 646.9,
subd. (a)), a felony. The jury also found true the allegations that appellant had previously
been convicted of a prior “strike” (Pen. Code, § 1170.12, subds. (a)-(d)), and that he had
served a prior prison term for that conviction plus separate prison terms for three other
felony convictions (Pen. Code, § 667.5, subd. (b)). During the sentencing hearing,
appellant was removed from the courtroom due to his obstructive behavior. The trial
*
BOREN, P. J., ASHMANN-GERST, J., FERNS, J.†
† Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
court sentenced appellant to 10 years in state prison, which consisted of the upper term of
three years for the stalking conviction, doubled due to the prior strike, plus four years for
each of the prior prison terms. Appellant was given 337 days of presentence custody
credit. The trial court also ordered appellant to pay restitution fines and assessments. As
discussed below, we order the abstract of judgment amended to include a fine.
We appointed counsel to represent appellant on appeal. After examination of the
record, counsel filed an “Opening Brief” in which no arguable issues were raised. On
June 11, 2014, we advised appellant that he had 30 days within which to personally
submit any contentions or issues that he wished us to consider. On July 7, 2014,
appellant submitted a response entitled “Motion to Discover Evidence.” Appellant stated
that the items he sought were part of the record. Appellant’s appointed counsel declared
that he sent appellant transcripts of the record. On appeal, an appellant may not bring a
motion seeking to discover evidence; we therefore treat it as his response, which
essentially proclaims his innocence.
We have reviewed the entire record and conclude that it provides a factual basis to
support appellant’s conviction. The prosecutor presented the following evidence: In
2011, appellant met Zenaida McNeeley (the victim) at a liquor store in Lancaster,
California. Appellant followed the victim out of the store and asked for her number. She
did not give it to him at that time, but did so a few weeks later when she saw appellant at
another liquor store. He called her the same day.
Appellant called once or twice after that and then stopped. A few months later, he
called again and told the victim that he had been to jail for “a few tickets” and wanted to
take her out. They went to dinner and a movie and had sex, but never had sex again.
Appellant came by several times after that, but there was no further romantic relationship.
Sometime later, the victim discovered that appellant had lied to her about his
name, his age, and where he was from; he had actually gone to school with her father and
they were about the same age. She told appellant not to come by her house anymore and
to stop calling her. Appellant laughed in response and said, “It’s not over.”
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Before his arrest, appellant called the victim and drove by her house on a daily
basis, more than 200 times altogether. She often saw his car parked down the street when
she came home from work. Appellant mowed her lawn without permission; she had
someone else taking care of the yard. He frequently ripped out wires from her sprinkler
system. He banged on her windows and doors. In June 2013, he broke the side gate
while she was home and she called the police. Appellant told her he was “going to show
[her] what a stalker does.” Appellant also went to the Los Angeles Zoo uninvited when
the victim was there with her children and some friends. He frequently cursed at the
victim, called her a “bitch” many times, and threatened to “slap the shit out of [her].” He
said he was going to strangle her and hurt her children, who would have to do CPR when
they found her. She believed appellant when he said he was going to strangle her. She
also testified that she was afraid of appellant because “[h]e’s just mean for no reason,”
and because he was a gang member and “[gang members] hurt other people.” She was
concerned for the safety of her two daughters, ages five and seven, who were living with
her at the time. The victim called the police several times and was told that she could not
get a restraining order without appellant’s last name, which she did not know. She
ultimately moved to a new home.
The victim’s 11-year-old brother testified that appellant came to the house five or
six times and would yell and curse. The victim’s seven-year-old daughter testified that
appellant came to the house, banged on the door waking her up, and used bad language.
Appellant was arrested on July 1, 2013. He told the arresting officer that the
victim was “crazy,” and that he had not been to her house in months. The following day
while being interviewed, appellant stated that he had not spoken to the victim in over four
months and had not seen her in seven months. Later that day, appellant admitted he had
lied earlier, and stated that he had seen and talked to the victim a week earlier, and had
called her three or four times in June.
Appellant testified on his own behalf. He stated that the victim would call him
and tell him to come over, and that sometimes they would spend the day having sex. He
knew the victim was unmarried and tried to be a father figure to her children. The victim
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asked appellant to help her take care of her lawn, so he bought a lawnmower and kept the
grass cut for her, sometimes while she was not home. This went on for about two years.
Appellant would also fix things around the victim’s house, install sprinklers, and fix
sprinkler wires that her dogs had chewed up.
Appellant denied ever swearing at the victim, telling her that he would show her
what a stalker does, threatening to choke her, or parking on her street while she was at
work. Regarding the trip to the zoo, he stated that the victim had invited him to go with
her. He parked in her garage and they took her car together with her daughters and her
little sister.
Appellant explained that he was forced to join a gang when he was young, but
after a friend was killed he ceased to be involved with gangs.
Neither the record nor appellant’s response demonstrate the existence of any
cognizable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436, 441.)
We do, however, order that the abstract of judgment be corrected to reflect the trial
court’s order that appellant pay victim restitution of $2,375 to the California Victim
Compensation and Government Claims Board (Pen. Code, § 1202.4, subd. (f)). A copy
of the amended abstract of judgment is to be forwarded by the trial court to the
Department of Corrections and Rehabilitation.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
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