THE PEOPLE v. SAMUEL BARBA ORNELAS

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. SAMUEL BARBA ORNELAS, Defendant and Appellant.

B212217

Decided: January 21, 2010

Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In a two-count information, Samuel Barba Ornelas (defendant) was charged with attempted kidnapping (January 8, 2008) and with stalking (October 15, 2007-January 11, 2008).   The victim of each count was Magdalena Gutierrez, his longtime girlfriend and the mother of his three children.

Following a jury trial, defendant was convicted of stalking and acquitted of attempted kidnapping.   The court imposed a two-year prison sentence.

On appeal, defendant's sole argument is that the trial court should have given the jury a limiting instruction concerning uncharged incidents of domestic violence.   Finding no error, we affirm the judgment.

PROCEEDINGS BELOW

1. Gutierrez's Testimony

According to Gutierrez, her 14-year relationship with defendant was plagued by a long history of abuse, including yelling, hair pulling, name calling, shoving, pinching, and hitting.   Gutierrez described defendant as jealous and controlling.   When she was at work, defendant constantly wanted to know what she was doing and repeatedly called her.   In June 2007, defendant hit her for three consecutive days.   In October 2007, defendant attempted to push Gutierrez out of a moving car.   Gutierrez was afraid of him and in October 2007, she decided to leave him and move back to her parents' home.   She obtained a restraining order for herself and the children.

The first stalking incident occurred on November 30, 2007.   Defendant hid in the cargo area of Gutierrez's SUV and waited for her to drop the children off before climbing into the front seat.   Gutierrez was scared because defendant had previously told her he would always find her.   Defendant ordered Gutierrez to drive, and he told her “ ‘[n]othing is going to keep me from you.   Not a restraining order or the police.’ ”   Gutierrez did not report the incident to the police because she was scared.

That same evening, defendant went to the hospital where Gutierrez was working.   Gutierrez asked defendant to leave, and defendant threw a letter at her.   Gutierrez next saw defendant on December 3, 2007, when he waited for her outside their son's school, forcing her to drive around to a different entrance in order to avoid him.   The next day Gutierrez filed a police report regarding defendant's violation of the restraining order.

On December 15, 2007, defendant left a note on Gutierrez's car at work.   The note stated:  “ ‘Don't forget, when I do want to follow you, ․ never would you even know.   Anyways, I am around and I know where you are parked so I will be at Carl's Jr. across the street from your job.’ ”   It continued:  “ ‘I would like to see you after work.   Oh, and no cops.   Just want to talk.’ ”   That evening, defendant followed Gutierrez and cut her off on the freeway, forcing her to stop.   Gutierrez called the police.   Defendant then exited his car and banged on Gutierrez's window as he tried to open her car door.   Gutierrez indicated she was talking to a police officer, and defendant stated, “ ‘watch Maggie, just watch.’ ”   Defendant had used that same warning in the past before he hit or shoved Gutierrez.   Two days later, Gutierrez filed another police report regarding defendant's violation of the restraining order.

On January 8, 2008, Gutierrez went to the house of her babysitter to pick up the children.   Gutierrez had asked her cousin to follow her.   When they arrived, defendant was not in sight and Gutierrez told her cousin she could leave.   As Gutierrez got out of the car, defendant ran up, grabbed her hands, and told her to scoot over.   As defendant grabbed Gutierrez, she yelled and honked the horn.   Defendant covered her mouth and told her to “shut up and scoot over.”   When the babysitter heard the noise and came outside, defendant ran away with the keys to Gutierrez's car.

During cross-examination, Gutierrez was questioned about prior incidents of domestic violence, including incidents not identified in her direct testimony.   Gutierrez testified that defendant was arrested in May 2001, following an incident in which defendant tried to prevent Gutierrez from leaving him by grabbing her by the arms.   Five months later, Gutierrez called the police again after defendant threw her on the bed and choked her as she held her son.   Gutierrez further testified that on January 24, 2007, she called the police after a struggle with defendant regarding a cell phone Gutierrez believed he used to call other women.

Also in response to defense counsel's questioning, Gutierrez testified about incidents alleged in her petition for a restraining order.   She described defendant's attempt to push her out of a moving car and about an incident during which defendant threw his cell phone at her.   She did not include the three-day beating in her application for a restraining order because she was asked only about the most recent incidents.   She explained that her reason for not reporting the three-day beating was that she feared the abuse would escalate.

Gutierrez's testimony was corroborated by other witnesses.   Martha Ann Rodriguez, Gutierrez's supervisor, testified that defendant repeatedly called Gutierrez at work and attempted to visit her at work.   Noel Baza, a security guard at the hospital where Gutierrez worked, saw defendant attempt to enter using a fraudulent identification card.   Derrick Martin, another security guard, called the police January 8, 2008 after seeing defendant run up to Gutierrez's car and hearing Gutierrez honk the horn for a prolonged period of time.   Officer Frank Rivera responded to a call January 8, 2008 and found Gutierrez's keys in defendant's car.   Officer James Chavez saw scratches on Gutierrez's wrists when he responded to her call that day.

2. Defendant's Testimony

Defendant admitted that he cheated on Gutierrez, that they argued about money, and that he called her names, but he denied hitting her or attempting to push her out of a car.   He also claimed that he never followed her.

According to defendant, on January 8, 2008, he went to the babysitter's house because he wanted to see his children.   He told Gutierrez he would take the children away from her, and Gutierrez poked him with her keys.   He took the keys from Gutierrez because she had been poking him with them.   Earlier that night defendant had told his friend Jose Rivera that he wanted to see his children.   Rivera confirmed that defendant wanted to see his children.

3. Instructions and Jury Deliberations

The jury was instructed that to find defendant guilty of stalking, the prosecutor must prove that “1. The defendant willfully and maliciously harassed or willfully, maliciously and repeatedly followed another person;  and 2. The defendant 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.”   The jury was further instructed:  “A credible threat is 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.  [¶] A credible threat may be made orally, in writing, or electronically or may be implied by a pattern of conduct or a combination of statements and conduct.”

During deliberations, the jury asked the following question:  “Regarding stalking charge:  2nd criteria under intent to place harm on to other individual.  [¶] Would we consider all 14 year behavio[rs] or just disclosed incidents (6 month span or so).”   The court responded:  “Refer to the instruction for stalking as to what elements are to be proved.”

DISCUSSION

Defendant does not challenge the admissibility of evidence of prior domestic violence.   As he concedes, that evidence was admissible to prove the defendant made a credible threat with the intent to place Gutierrez in reasonable fear for her safety, an element of stalking.  (People v. Zavala (2005) 130 Cal.App.4th 758, 771.)   Instead, defendant argues (1) that the trial court should have instructed the jury sua sponte on the limited use of evidence of prior bad acts based on a modified version of CALCRIM No. 375, or (2) that the court should have instructed the jury on the limited use of prior bad acts in response to the jury's question regarding the stalking count.1

1. The Trial Court Had No Duty to Give, Sua Sponte, a Limiting Instruction

Except in extraordinary cases, the trial court has no duty to give, sua sponte, a limiting instruction.  (People v. Rogers (2006) 39 Cal.4th 826, 864.)   In an extraordinary case, where “ ‘evidence of past offenses [wa]s a dominant part of the evidence against the accused, and [wa]s both highly prejudicial and minimally relevant to any legitimate purpose’ ” a trial court should instruct sua sponte.  (Ibid., quoting People v. Collie (1981) 30 Cal.3d 43, 64.)   This was not an exceptional case.   The evidence of past abuse was highly relevant to the element of stalking and did not require a sua sponte instruction.  (People v. Collie, supra, 30 Cal.3d at p. 64 [no sua sponte instruction required where evidence of prior abuse was used to “effect ․ [a] legitimate purpose[ ] for which it [could] be introduced”].)

2. The Trial Court Had No Duty to Give a Limiting Instruction in Response to the Jury's Question

“[Penal Code s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.  [Citation.]  If, however, “ ‘the original instructions are themselves full and complete, the court has discretion under ․ section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information.” ’ ” 2  (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted;  People v. Yarbrough (2008) 169 Cal.App.4th 303, 317.)

For the first time on appeal, defendant argues the trial court should have given a limiting instruction in response to the jury's question whether it should consider the entire 14-year period of abuse when assessing defendant's intent with regard to the stalking charge.

Initially, we note that defendant has forfeited this argument by failing to raise it in the trial court.  (People v. Roldan (2005) 35 Cal.4th 646, 729 [“When a trial court decides to respond to a jury's note, counsel's silence waives any objection under [Penal Code] section 1138.”] ) 3

Moreover, the argument fails on the merits, as the court was under no obligation to give such an instruction.   First, the jurors' question indicated they were considering the evidence for the permissible purposes of assessing defendant's intent.   Second, the instruction on stalking informed the jury that a credible threat “may be implied by a pattern of conduct,” thereby advising the jury of the relevance of defendant's past conduct.  (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [court sufficiently answered juror's inquiry when it urged jurors to reread instructions in context of other instructions].) 4  Third, the instruction proposed by defendant failed to respond to the temporal element of the jury's question, the sole issue raised by the jury.

The cases upon which defendant relies are inapposite.   In People v. Thompkins (1987) 195 Cal.App.3d 244, the court found that the trial court had provided incorrect legal principles when responding to a question by the jury.   Here, defendant identifies no similar erroneous instruction.   In People v. Cordero (1989) 216 Cal.App.3d 275, in response to the jurors' questions about a legal term, the court responded that the jury had been correctly instructed on all the rules of law, but failed to identify any specific instruction relevant to the jurors' inquiry.  (Id. at p. 280.)   In contrast, here the trial court informed the jurors of the specific instruction to consider.   In addition, in Cordero, the defendant requested a clarifying instruction and was entitled to an instruction explaining his theory of defense.  (Id. at p. 282.)   Here, defendant requested no instruction and identifies no instruction necessary to respond to the jurors' inquiry.5

3. Defendant Suffered No Prejudice

Defendant identifies no prejudice resulting from the court's alleged failure to give a limiting instruction.   Regardless of whether the jurors considered the long history of abuse or just the most recent six months, the evidence was relevant.  (People v. Zavala, supra, 130 Cal.App.4th at p. 770.)   Indeed, the jurors' question indicated they were considering it for a permissible purpose.   That the jurors were not instructed on the preponderance standard could only have heightened the prosecution's burden.   Additionally, much of the evidence of prior abuse was elicited by defense counsel in what appeared to be an effort to discredit Gutierrez.6  The instruction proposed by defendant would have undermined his own argument that “you have to decide if you believe [Gutierrez's] testimony beyond [a] reasonable doubt, the truthfulness of her testimony beyond [a] reasonable doubt․”  The fact that the jury acquitted defendant of the attempting kidnapping shows that it did not consider the prior domestic violence as evidence defendant had a disposition to commit crimes.   Finally, the prosecutor did not argue that instances of prior abuse could themselves be the basis of the stalking charge, but instead expressly reminded jurors that the stalking charge was based on events occurring after Gutierrez left defendant.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. For the first time on appeal, defendant argues the following instruction should have been given:  “The People presented evidence that the defendant committed other offenses or engaged in other behavior that were [sic ] not charged in this case.  [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses or acts.   Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt.   A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.  [¶] If the People have not met this burden, you must disregard this evidence entirely.  [¶] If you decide that the defendant committed the uncharged offenses or acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not:  [¶] defendant made a credible threat with intent to place [Gutierrez] in reasonable fear;  and that [Gutierrez] was in reasonable fear.   In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and acts and the charged offense.“Do not consider this evidence for any other purpose except for the limited purpose of determining whether defendant made a credible threat with intent to place [Gutierrez] in reasonable fear;  and that [Gutierrez] was in reasonable fear.   Do not conclude from this evidence that the defendant has a bad character or is disposed to commit the crime.   If you consider that the defendant committed the uncharged offenses or acts, that conclusion is only one factor to consider along with all the other evidence.   It is not sufficient by itself to prove that the defendant is guilty of stalking, or that the elements of credible threat and fear have been proved.   The People must still prove the stalking charge beyond a reasonable doubt.”.  FN1. For the first time on appeal, defendant argues the following instruction should have been given:  “The People presented evidence that the defendant committed other offenses or engaged in other behavior that were [sic ] not charged in this case.  [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses or acts.   Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt.   A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.  [¶] If the People have not met this burden, you must disregard this evidence entirely.  [¶] If you decide that the defendant committed the uncharged offenses or acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not:  [¶] defendant made a credible threat with intent to place [Gutierrez] in reasonable fear;  and that [Gutierrez] was in reasonable fear.   In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and acts and the charged offense.“Do not consider this evidence for any other purpose except for the limited purpose of determining whether defendant made a credible threat with intent to place [Gutierrez] in reasonable fear;  and that [Gutierrez] was in reasonable fear.   Do not conclude from this evidence that the defendant has a bad character or is disposed to commit the crime.   If you consider that the defendant committed the uncharged offenses or acts, that conclusion is only one factor to consider along with all the other evidence.   It is not sufficient by itself to prove that the defendant is guilty of stalking, or that the elements of credible threat and fear have been proved.   The People must still prove the stalking charge beyond a reasonable doubt.”

FN2. Penal Code section 1138 provides:  “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court.   Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”.  FN2. Penal Code section 1138 provides:  “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court.   Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”

FN3. Roldan, supra, 35 Cal.4th 646, was disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22..  FN3. Roldan, supra, 35 Cal.4th 646, was disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22.

FN4. People v. Gonzalez, supra, 51 Cal.3d 1222, was superseded by statute on another ground as explained in In re Steele (2004) 32 Cal.4th 682, 691..  FN4. People v. Gonzalez, supra, 51 Cal.3d 1222, was superseded by statute on another ground as explained in In re Steele (2004) 32 Cal.4th 682, 691.

FN5. Although he does not focus on it, defendant mentions that the jury also heard evidence of his methamphetamine use.   In contrast to the evidence of prior abuse, that evidence was not relevant to defendant's intent with respect to the stalking charge.   Defendant's proposed instruction does not pertain to the evidence of his methamphetamine use.   Additionally, because there was no objection to that evidence, any claim that it was improperly admitted was forfeited.  (People v. Doolin, supra, 45 Cal.4th at p. 437 [to preserve claim of error on appeal, defendant must have objected in trial court on specific ground raised on appeal].)   In any event, there was no prejudice from its admission as it was not emphasized or relied upon by the prosecutor..  FN5. Although he does not focus on it, defendant mentions that the jury also heard evidence of his methamphetamine use.   In contrast to the evidence of prior abuse, that evidence was not relevant to defendant's intent with respect to the stalking charge.   Defendant's proposed instruction does not pertain to the evidence of his methamphetamine use.   Additionally, because there was no objection to that evidence, any claim that it was improperly admitted was forfeited.  (People v. Doolin, supra, 45 Cal.4th at p. 437 [to preserve claim of error on appeal, defendant must have objected in trial court on specific ground raised on appeal].)   In any event, there was no prejudice from its admission as it was not emphasized or relied upon by the prosecutor.

FN6. The cornerstone of defense counsel's argument was that Gutierrez exaggerated the past abuse and that her failure to report the past abuse demonstrated her lack of credibility..  FN6. The cornerstone of defense counsel's argument was that Gutierrez exaggerated the past abuse and that her failure to report the past abuse demonstrated her lack of credibility.

EPSTEIN, P.J. SUZUKAWA, J.