People v. Molina CA4/2

Filed 1/28/22 P. v. Molina CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 TWO
THE PEOPLE,
Plaintiff and Respondent, E076167
v. (Super.Ct.No. FVI19003109)
MARIO ADAM MOLINA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez,
Judge. Affirmed as modified.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Melissa Mandel,
Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury found defendant and appellant Mario Adam Molina guilty of stalking in
violation of a restraining order (Pen. Code,1 § 646.9, subd. (b), count 1) and found true the
allegation that he was subject to a temporary restraining order. The jury also found him
guilty of violating a protective order. (§ 273.6, subd. (a), count 2.) A trial court sentenced
defendant to the upper term of four years on count 1, plus a concurrent term of one year on
count 2.
On appeal, defendant contends: (1) the evidence was insufficient to show he stalked
the victim while a restraining order was in effect; (2) the concurrent term on count 2 must be
stayed pursuant to section 654; and (3) the matter should be remanded for resentencing
because the court mistakenly believed it did not have the discretion to grant probation, and it
relied on improper and unsupported factors to impose the upper term on count 1. The
People concede, and we agree, that the sentence on count 2 should be stayed under section
654. Otherwise, we affirm the judgment.
FACTUAL BACKGROUND
R.D. (the victim) and defendant dated from 2009 to 2015 and had two children
together. During their relationship, defendant threatened the victim frequently, telling her
that if she ever left him, she would cry “tears of blood.” She understood that to mean that
she would never see her kids again and that he could kill her. Defendant also told her he
would put her six feet under. In 2011, he poured cold water on the victim when she was
1 All further statutory references will be to the Penal Code unless otherwise noted.
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taking a shower. In response, she did the same thing to him. He came out of the shower,
pushed her against the wall, and slapped her on the face twice. In August 2013, shortly after
the victim gave birth to their youngest daughter, the victim found defendant sleeping with
the television on. She complained that he needed to get a job to help pay the bills.
Defendant said, “You’re going to start nagging, you b----.” The victim became upset, told
him she was tired of everything, and said she wanted to break up. He got upset, followed
her to the kitchen, and slapped her. She slapped him back and tried to get away from him,
but defendant followed her and punched her on the left side of her forehead. The victim lost
consciousness for 30 seconds. When she recovered, she scratched him, and he punched her
in the nose. Defendant also dragged her by the hair. The victim called the police.
The victim got a restraining order against defendant in July 2015, and defendant was
not allowed to be in the home as a result. The restraining order was for one year. In 2015,
the victim told defendant she wanted him out of her life and did not want to have anything
to do with him. They broke up in 2015. Between 2015 and 2019, defendant continued to
threaten her—approximately 100 times.
In 2019, defendant was still contacting the victim. She had full custody of their
children, and he had no visitation rights. In August 2019, defendant went to the victim’s
house, and she told him to leave or she would call the police. In October 2019, defendant
left the victim over 30 voicemails with threatening messages. In some of the messages, he
told her that if she was dating someone, that person would be dead, and she would be dead
too. In one message, defendant said the victim’s stepdad was “going to pay,” and that she
was “going to be gone with him.” In another one, defendant told her that if she did not do
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what he said, the kids would be at a foster home. She took that as a threat that he was going
to kill her. He also continued to state that the victim would cry “tears of blood.” In one of
the messages, defendant said he was going to bust her mouth. The victim felt scared,
anxious, and was in fear for her life. That month, defendant also drove by her house about
five or six times a day, except for one or two days when he did not show up. The victim
was so scared that she checked the camera and recordings on her Ring doorbell all the time.
Seeing defendant drive by her home made her feel nervous and anxious because she would
remember all his threats, and she knew he had a gun. Every time she saw him, she would
panic, feel angry at herself for being with someone like him, and cry.
On the morning of October 30, 2019, the victim walked outside her house and saw
defendant sitting in his car, parked on the street in front of her neighbor’s house. He was
staring at her and held up a gun. She felt scared and took his conduct as a threat since he
had previously told her he was going to put her six feet under, and that she was going to be
gone. Defendant left the victim a voice message at around 8:00 p.m. that night, saying she
needed to contact her ex-boyfriend, who was an FBI agent, because defendant wanted his
help. Defendant threatened her by saying that if she did not help him, he would knock the
door down, take her kids, and slap her. The victim saw defendant outside her house after
she received the voice message and called the police.
On November 1, 2019, the victim obtained a temporary restraining order against
defendant. It required him to stay away from her, her car, her home, and her children. The
order was in effect until November 25, 2019. Defendant was served with a copy of the
restraining order.
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During the time period from November 1, 2019, to November 15, 2019, defendant
left the victim about 15 voicemail messages containing similar threats to the ones in the
past. However, the messages were more aggressive, and the tone of his voice sounded
angry. Defendant told the victim that he did not care who she called or what she did, and
that he would still kidnap her kids. Receiving the messages made the victim feel scared,
nervous, and filled with anxiety. One of the voicemails mentioned her stepdad, and she was
scared that defendant was going to harm him. Defendant told the victim that she was “going
to be gone” and so was her stepdad, and that she would “end up losing because this is not a
game.” In another voicemail, defendant said the victim was going to be gone for not
listening and helping him with the problem he had, and that the kids would end up in a
foster home.
During the same period from November 1, 2019, to November 15, 2019, defendant
drove by the victim’s house about 40 times. The victim had a Ring doorbell camera that
showed when he drove by. Her Ring doorbell camera recorded defendant on November 1,
2019, driving by and then stopping next to the victim’s car at approximately 7:30 p.m.
Defendant pushed her mirror in toward her car. The victim went outside to examine her car
and noticed that it had some damage to the back on the driver’s side. That damage was not
there before.
On November 15, 2019, the victim received three voice messages from defendant.
She deleted one of them and listened to the other two. The two contained similar threats as
before, except defendant also said that he was coming. Defendant said he had texted and
called her, and that he was going to do something to get her attention. In the second voice
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message, defendant said the victim was acting stupid and that she “was going to see the
consequences of [her] not paying attention to him.” Defendant was singing on the
voicemail like he was “out of his mind,” and his tone of voice was scary. The victim took
the voicemails as a threat that he was going to kill her, and she was in fear for her life and
the safety of her children. She knew he was serious because she had seen him following her
earlier that day when she was coming home with her kids.
The victim called the police, and an officer responded. The officer noted that she
was “very concerned and panicked,” and by the end of their contact, she was crying. The
victim told the officer what had occurred that day and told him where she believed
defendant was. The officer located defendant’s car at a nearby restaurant and observed
defendant sitting in the driver’s seat. The officer contacted him, and he told the officer
about what had occurred between him and the victim. Defendant admitted knowing about
the restraining order. The officer arrested him and took him to a detention center.
At the detention center, the officer read defendant his Miranda2 rights. Defendant
waived them and spoke to the officer. The officer recorded the interview, and the recording
was played for the jury at trial. Defendant admitted to knowing about the restraining order
and to calling the victim. When calling her, he said, “Look, you stupid son of a b----, you
need to f---ing wake up. Stop being a dumb mother------.” He told her he was going to
“disturb” her relationship with her new boyfriend. Defendant admitted that he drove by the
2 Miranda v. Arizona (1966) 384 U.S. 436.
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victim’s house every day, went to her house on November 15, 2019, and pushed in the
mirror on her car to get her attention since she was ignoring him.
DISCUSSION
I. The Evidence Was Sufficient to Support Defendant’s Conviction in Count 1
Defendant argues the true finding on count 1, that a restraining order was in effect at
the time of the stalking, must be reversed since there is no evidence that he made a credible
threat to the victim’s safety between November 1, 2019, and November 15, 2019. We
conclude the evidence was sufficient to support the true finding and the stalking conviction
in count 1.
A. Standard of Review
In reviewing a challenge to the sufficiency of the evidence, we “must examine the
whole record in the light most favorable to the judgment to determine whether it discloses
substantial evidence—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.” (People
v. Kraft (2000) 23 Cal.4th 978, 1053.) “Reversal on this ground is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support
[the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. The Evidence Was Sufficient
Section 646.9, subdivision (a), provides: “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
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646.9, subdivision (b), provides: “Any person who violates subdivision (a) when there is a
temporary restraining order, injunction, or any other court order in effect prohibiting the
behavior described in subdivision (a) against the same party, shall be punished by
imprisonment in the state prison for two, three, or four years.”
The jury was instructed that to find defendant guilty of count 1, it had to find that he:
(1) “willfully and maliciously harassed or willfully, maliciously, and repeatedly followed
another person”; and (2) “made a credible threat with the intent to place the other person in
reasonable fear for her safety or for the safety of her immediate family.” (See People v.
Ewing (1999) 76 Cal.App.4th 199, 210.) The jury was further instructed that if it found
defendant guilty of stalking in count 1, it had to decide whether the People proved that a
temporary restraining order was in effect at the time of the conduct and that the defendant
knew of the court order. The jury instructions defined a credible threat as “one that causes
the target of the threat to reasonably fear for his or her safety or for the safety of his or her
immediate family and one that the maker of the threat appears to be able to carry out.”
Defendant contends there was no evidence that he threatened the victim while a
restraining order was in effect, specifically claiming there was no evidence he made a
“verbal or written threat” between November 1 and 15, 2019. We disagree. Section 646.9,
subdivision (g), provides that “ ‘credible threat’ means a verbal or written threat, including
that performed through the use of an electronic communication device, or a threat implied
by a pattern of conduct or a combination of verbal, written, or electronically communicated
statements and conduct, . . .”
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The evidence here showed the victim obtained a temporary restraining order on
November 1, 2019, which required defendant to stay away from her, her car, her home, and
her children, until November 25, 2019. Defendant was served with a copy of the restraining
order. He admitted to the police officer that he knew about the restraining order. The
evidence further showed that while the restraining order was in effect, defendant left the
victim 15 voicemail messages and drove by her house about 40 times. The voicemail
messages contained threats that the victim was “going to be gone” because she did not listen
to defendant or help him with his problem; that she would “end up losing because this [was]
not a game”; that he was going to kidnap her kids; that they would end up in a foster home;
and that he would harm her stepdad. Defendant also cursed at her, called her names, and
threatened to “disturb” her relationship with her new boyfriend. The content of these
messages was consistent with the threats defendant had made for 10 years, except that they
were more aggressive.
The evidence specifically showed that on November 15, 2019, defendant left three
voice messages containing similar threats. He said he had texted and called the victim, and
he was going to do something to get her attention. He said she “was going to see the
consequences of [her] not paying attention to him.” Moreover, earlier that day, the victim
noticed defendant following her when she was coming home with her kids. The victim was
so scared that she called the police, and the officer observed that she was panicking and
crying. Defendant later admitted that he pushed in the mirror on the victim’s car to get her
attention. Defendant’s course of conduct, including his words as well as his actions,
constituted a credible threat within the meaning of section 646.9, subdivision (g). (See
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People v. Lopez (2015) 240 Cal.App.4th 436, 453 (Lopez) [defendant was obsessed with the
victim for years and sent her packages, messages on Facebook, letters and pictures, despite
her telling him she wanted nothing to do with him]; see also People v. Zavala (2005) 130
Cal.App.4th 758, 767 [despite restraining order, defendant repeatedly contacted wife in
person, by telephone, followed her three times, and made express or implied threats].)
Defendant argues that the evidence “wholly fails to show [he] threatened [the
victim’s] safety,” and that his statements could not reasonably be construed as threats made
with the intent to place her in fear for her safety. He further contends that her interpretation
of his comments as meaning he would kill her “borders on the absurd” and was
“unreasonable in the extreme.” We disagree. Defendant’s voicemails and conduct of
following the victim and her children, in the context of many years of him leaving her
frightening voicemails, driving by her home, and sitting in his car staring at her while
holding a gun, “reveal an obsession that a reasonable person would understand as
threatening.” (Lopez, supra, 240 Cal.App.4th at p. 453.)
Defendant further claims that one of the elements of stalking is “actual suffering by
the victim of substantial emotional distress” and then argues that there was insufficient
evidence of “serious and reasonable emotional distress.” However, section 646.9 lists no
requirement of showing “actual suffering of substantial emotional distress.” (§ 646.9.) In
any event, contrary to defendant’s claim, the evidence showed the victim suffered serious
substantial emotional distress, and that her anxiety and fear for her life were reasonable
under the circumstances. (See ante.)
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Viewing the evidence in a light favorable to the judgment, as we must, we conclude
there was sufficient evidence to support the stalking conviction in count 1 and the jury’s
finding that a restraining order was in effect at the time of the stalking.
II. The Sentence on Count 2 Should Be Stayed Pursuant to Section 654
Defendant argues that his sentence on count 2 should be stayed pursuant to section
654 because count 2 arose out of the same course of conduct as count 1. The People
correctly concede.
Section 654 “precludes multiple punishments for a single act or indivisible course of
conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294.) “ ‘Where a defendant’s crimes
are the result of a course of criminal conduct, courts endeavor to determine whether the
course of conduct is divisible, i.e., whether it constitutes more than one criminal act.
[Citation.] A course of conduct will give rise to more than one criminal act if the actions
were incident to more than one objective.’ ” (People v. Roles (2020) 44 Cal.App.5th 935,
946.)
Defendant was found guilty of stalking in violation of a restraining order during the
time period of July 1, 2019, through November 19, 2019 (§ 646.9, subd. (b), count 1) and
violating a protective order on or about November 15, 2019 (§ 273.6, subd. (a), count 2). In
finding defendant guilty of count 1, the jury had to find that he willfully harassed or
willfully and repeatedly followed the victim and made a credible threat with the intent to
place her in reasonable fear for her safety or the safety of her family. It also had to find that
a temporary restraining order prohibiting him from engaging in such conduct was in effect
at the time. In finding defendant guilty of count 2, the jury had to find that a court issued a
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written order that he not contact the victim in any way and stay at least 100 yards away from
her home, job, and vehicle; that the order was a stay away order issued under Family Code
section 6300; that defendant knew of the order and had the ability to follow it; and that he
willfully violated it. Both parties agree that the convictions in counts 1 and 2 arose out of
the same course of conduct, in that defendant’s conduct of stalking the victim in count 1
formed the basis of him violating the protective order in count 2. Moreover, the protective
order used to prove defendant’s guilt on count 1 (§ 646.9 subd. (b)) is the same protective
order used to prove defendant’s guilt on count 2. Accordingly, the sentence on count 2
should have been stayed pursuant to section 654.
III. The Court Properly Sentenced Defendant to the Upper Term on Count 1
Defendant argues that the matter should be remanded for sentencing since the trial
court mistakenly believed it did not have the discretion to grant probation. He further
contends the court improperly imposed the upper term on count 1, relying on factors that
were either unauthorized or unsupported by the evidence. We conclude the court properly
sentenced defendant to the upper term on count 1.
“When a judgment of imprisonment is to be imposed and the statute specifies three
possible terms, the choice of the appropriate term shall rest within the sound discretion of
the court. . . . The court shall select the term which, in the court’s discretion, best serves the
interests of justice.” (§ 1170, subd. (b).) Sentencing courts have wide discretion in
weighing aggravating and mitigating factors. (People v. Avalos (1996) 47 Cal.App.4th
1569, 1582.) A single factor in aggravation is sufficient to justify the imposition of the
upper term. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.) “ ‘The burden is on the party
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attacking the sentence to clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its discretionary determination to
impose a particular sentence will not be set aside on review.’ ” (People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Defendant first contends that the court mistakenly believed that section 646.9,
subdivision (b), unlike subdivision (a), did not allow it to grant probation. The court did
state that section 646.9, subdivision (b), did not give it discretion to provide a grant of
probation. However, any error was harmless. Even if the court was mistaken in its
understanding, the record is clear that it would have declined to place defendant on
probation. The court expressly stated: “Had the court been given discretion for probation,
the court still would not be granting the defendant probation in this case, given the facts that
were presented at trial.”
Furthermore, the trial court properly exercised its discretion in imposing the upper
term. It read and considered the People’s sentencing brief and the probation officer’s report.
In support of the upper term, the court cited the factor that “[t]he crime involved great
violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high
degree of cruelty, viciousness, or callousness.” (Cal. Rules of Court, rule 4.421(a)(1).) It
noted that defendant harassed and traumatized the victim by leaving her voice messages and
driving by and parking his car near her house. It further noted that she continued to be
fearful based on his actions over the period of time, as detailed in her testimony as well as a
letter she wrote to the court, which was read at sentencing. The evidence clearly supported
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this aggravating factor. In October 2019, defendant left the victim over 30 voicemails
telling her that if she was dating someone, that person would be dead and she would be dead
too, that her stepdad was “going to pay,” that defendant was going to bust her mouth, that
she would cry “tears of blood,” and that her kids would end up in a foster home.
Furthermore, defendant drove by her house about five or six times a day that same month.
At one point, he parked in front of her house and stared at her while holding a gun. The
victim testified that she felt anxious and scared, and she feared for her life.
Defendant contends that repeated harassment resulting in fear is an element of
stalking and therefore could not be used to impose the upper term. He cites California Rules
of Court, rule 4.420(d), which provides that, “[a] fact that is an element of the crime on
which punishment is being imposed may not be used to impose a particular term.”
However, as the People point out, a person can be convicted of stalking under section 646.9
with only two acts of harassing a victim. (§ 646.9, subds. (e) & (f).) Here, defendant left
over 30 threatening voicemails and drove by the victim’s house five or six times a day,
thereby placing her in a perpetual state of fear. Thus, we have no trouble seeing, as the trial
court did, that defendant’s stalking involved “threat[s] of great bodily harm, or other acts
disclosing a high degree of cruelty, viciousness, or callousness” (Cal. Rules of Court,
rule 4.421(a)(1)) far beyond that which is necessary for conviction.
The court also cited the factor that the victim was particularly vulnerable. (Cal.
Rules of Court, rule 4.421(a)(3).) In People v. Steele (2000) 83 Cal.App.4th 212 (Steele),
the trial court found that one of the aggravating factors was the victim’s vulnerability. The
victim testified that “she was afraid of appellant by his actions and past reputation, and also
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by the fact that appellant knew where she lived.” (Id. at p. 226.) The appellate court agreed
with the trial court, finding it “difficult to assail the finding that the victim was vulnerable.”
(Ibid.)
Here, the court noted that many of the incidents occurred during the night or early
morning hours when the victim was home sleeping. The court stated that the victim’s
security system showed that defendant drove by her house, and that being there alone with
her kids “certainly does make her particularly vulnerable.” Although it is unclear that the
evidence showed the incidents occurred during the night or early morning or when the
victim was sleeping, it did show that defendant drove past the victim’s house countless
times and that he followed her and her children. At sentencing, the court heard the victim’s
statement, in which she said that she was not able to go in her front or back yard without
fearing defendant would be outside to hurt her, and that she was afraid that at night, he
would “come to my house and knock down my door and either kill me or take my kids.” In
light of the evidence that defendant had threatened the victim for years, followed her and her
children, had a gun, and surveilled her house, the court properly relied on her vulnerability
as an aggravating factor, particularly since defendant often appeared when the victim was
alone with her children and had already demonstrated his willingness to inflict physical
violence upon her. (See Steele, supra, 83 Cal.App.4th at p. 226.)
In sum, only one aggravating factor was needed for the court to impose the upper
term on count 1. The evidence warranted the application of one or more aggravating factors
in this case. Thus, we see no abuse of discretion.
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DISPOSITION
The judgment is modified to stay the term imposed on count 2 pursuant to section
654. The trial court is directed to amend the abstract of judgment and its minute order to
reflect this modification and to forward a certified copy of the amended abstract of judgment
to the Director of the Department of Corrections and Rehabilitation. In all other respects,
the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
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