THE PEOPLE v. DARON CARON SAFFORE (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

The jury convicted defendant and appellant Daron Saffore of stalking his erstwhile live-in girlfriend, Deborah Devlin, during the period of May 28 to June 20, 2008, in violation of Penal Code section 646.9, subdivision (a).¹  The trial court sentenced defendant to the upper term of three years in state prison.   In his timely appeal, defendant contends, first, there was constitutionally insufficient evidence to support his conviction and, second, the trial court abused its discretion by overruling his Evidence Code section 352 objection and admitting evidence of defendant's prior, uncharged threats and violent acts against Devlin.

We affirm.

STATEMENT OF FACTS

Deborah Devlin and defendant began dating in February 2004.   Their relationship continued “on and off” for three and a half years, during which time defendant would live in Devlin's Los Angeles apartment and move out when they separated-an occurrence which took place approximately five times.   She initially broke up with defendant in approximately October 2005.   On November 11, 2005, defendant telephoned her, saying he wanted to resume the relationship.   He arrived at Devlin's apartment after she had returned from work, approached her at the front door, and said he wanted “to get back with” her.   Devlin told him “it was over” and turned away in order to open the front door.   Defendant spun her around, poked her in the head, and said “Where are you going?”   When she told him not to touch her, defendant grabbed her arm and threw her down two steps and onto the ground, bruising her body.

The next day, defendant sent Devlin hundreds of text messages with the numbers “187” and “666.”   She understood the first as a death threat ² and the second as a reference to her as the devil because he had often called her “the white devil.”   She went to the police department the following day and filed a report about those incidents.

Devlin and defendant resumed their relationship later that year.   He became angry with her when she returned home at 12:30 a.m., after going dancing with friends and leaving him alone.   When a male friend of hers telephoned in the morning to see if she had returned home safely, defendant “went crazy.”   He called her a “slut” and a “whore,” and smothered her face with a pillow as she was lying in bed.   Devlin was frightened and managed to push him away.   Later that afternoon, defendant attacked her twice while she was on the couch-trying to choke her by pulling a scarf around her neck.   She was too frightened to call the police because defendant was still living in her apartment.

In January 2006, after they had again broken up, defendant began leaving text messages and calling her cell phone.   The text messages contained the same numeric references as before, but added “1212,” which Devlin took as defendant's way of saying he loved her.   Typically, he would send the “187” and “666” texts when she ignored his calls, and the “1212” text if she answered and spoke to him.   She agreed to meet him outside her apartment because her mother was visiting and she did not want her to worry about all the messages and calls defendant was making.   The meeting took place inside his car.   Devlin tried to get out of the car when their conversation turned into an argument.   Defendant restrained her by pulling her hand away from the door handle and breaking her right index finger.   She received medical treatment, but did not report the incident to the police because she was afraid of how defendant would react, and she did not want her mother to find out that she was in an abusive relationship.

In April 2006, defendant discovered that Devlin was dating another man.   While she had her boyfriend's dog at her apartment, defendant telephoned her and threatened to kill the pet.   She was out at the time, but went home with friends to check on the dog, which was safe.   Afterwards, defendant telephoned and said, “Tell your boyfriend to meet me at the park, I've got a Magnum 44,” which she understood to be a gun.

On others occasions, she awoke in the middle of the night to find defendant inside her apartment without permission, standing over her bed.   Twice he was holding a knife.   On one occasion, he jumped out of Devlin's daughter's closet with a kitchen knife and said he had been waiting to see if she brought home a man, explaining that the knife “was for the guy if he was there.”   On the other occasion, defendant got into bed with her.   She saw he was concealing a knife, but she pretended not to see it and said she was “glad he was there,” to placate him and to prevent him from using the weapon.   On a different night, defendant surprised her by hiding behind a door with a large candle when she returned home.   Defendant entered her apartment without permission approximately 50 times.   She changed the lock twice, but defendant broke in through the front window.   Devlin recounted a separate incident when defendant threatened her with a hammer when she tried to run away from him.   She was terrified and began to cry, but defendant said he was “just playing.”

In June 2007, when Devlin was working at a doctor's office in Beverly Hills, she received numerous telephone calls from defendant-between 50 and 100-on the general office line and on the doctor's private, emergency line.   At times, all five lines in the office would be busy with his calls.   She and others in the office would tell him to stop calling.   Devlin reported the matter to the Beverly Hills Police Department.

On August 11, 2007, Devlin came home in the early morning hours to find defendant inside the apartment without warning or permission.   She poured herself a glass of wine to steady her nerves and told him to leave.   They argued and she threw the wine at him.   Defendant responded by putting her in a chokehold.   She was scared and screamed out the open front door to attract attention.   Defendant released her and walked away.   She went inside and called the police.

On November 25, 2007, Devlin and her daughter returned home from a soccer game.   She went to the bathroom, while her daughter took the dog outside, leaving the front door open.   When Devlin returned to the living room, defendant and another male had entered her apartment without permission.   She told defendant to leave, but he said he was “just coming in for something that's mine,” and went to her bedroom.   As Devlin called the police, defendant and the male left the apartment.   Later that month, she received a call from defendant on her cell phone while she was at work.   Defendant asked whether she wanted to “see him dead” and said he would “die in front of your face, bitch.”   She responded that she did not care what he did, but he insisted that she wanted to die, too.   Defendant called her 55 times by 9:50 a.m. that day.

Five days later, Devlin made another report to the Beverly Hills Police Department concerning defendant's calls.   In response to an officer's recommendations, the office receptionist, Penny Fulkerson, kept a log of defendant's telephone calls.   Fulkerson began working at the doctor's office in January 2007.   She saw defendant once, when he entered the office at the time she was leaving.   She also spoke to defendant on the telephone daily or every other day, when he called for Devlin.   On various occasions, Devlin would not want to speak to defendant and Fulkerson would tell defendant she was not available, which sometimes elicited a rude response from defendant.   When Devlin refused to talk to defendant, he would call back repeatedly, as many as 50 to 70 times in a day.   If Devlin relented and spoke to him, the conversations would make Devlin upset.   When Devlin confided in Fulkerson about her relationship with defendant, Devlin appeared upset and frightened-she cried and was anxious and shaking.   Devlin appeared scared after receiving text messages.

In approximately January 2008, Devlin obtained a temporary restraining order against defendant.   Afterwards, defendant sent her four or five letters in which he referred to the order.

Devlin went to Florida in May 2008.   Beginning on May 28, she received numerous text messages of “87” and “1212” from defendant.   She understood “87” to be a version of “187,” importing a death threat.   Defendants also called her, but she would not answer.   Her friend, however, did answer and put defendant on speakerphone so that she could hear his voice.   The friend said he had a “wrong number.”   Defendant called approximately 15 times within two hours.   Devlin contacted local law enforcement to report defendant's violations of the restraining order.

When she returned to Los Angeles, she found the deadbolt to her front door had been unlocked and the kitchen window screen had been tampered with.   Defendant repeatedly telephoned her, saying he loved her and wanting to resume their relationship.   When she responded negatively, he began texting “87” to her.   She had not told defendant that she made a police report against him to Officer Brian Chechowski while she was in Florida.   Nor had she told defendant that she was moving, although there were moving boxes visible through her apartment window.   Defendant called and asked her where she was moving, whether it was to Florida, and who was Brian?   The Florida police officer had left a message on her answering machine at home, which had a caller identification feature.   Devlin continued to receive “87” text messages, which frightened her.   Devlin moved to a friend's house.

On June 9, 2008, Devlin called Officer Reyes about defendant's calls.   The officer came to the doctor's office and took her report.   Devlin told the officer she had received 17 calls from defendant that day.   While he was taking her report, defendant called and Devlin answered the phone and put him on speakerphone.   The officer told defendant he was a police officer and defendant hung up.   Defendant called again, but hung up when the officer answered.   She also told the officer about the “187” texts.

On June 11, 2007, Detective Daniel Chilson of the Beverly Hills Police Department responded to the doctor's office, where he interviewed Devlin about the annoying phone calls she was receiving.   The detective answered approximately seven calls without identifying himself, and the caller hung up.   The caller had a male voice.   When he called again, the detective said he was a police officer and told the caller to stop making the calls.

On June 20, 2008, Detective Stephanie Johnigan of the Los Angeles Police Department interviewed Devlin about defendant.   Devlin told the detective that she attended a barbecue on approximately June 15.   Defendant arrived uninvited and left when she threatened to call the police.   In another incident, defendant called her and described the person standing next to her, which made her fear she was being watched by defendant.

DISCUSSION

Sufficiency of Evidence

“The elements of the crime of stalking (§ 646.9) are (1) repeatedly following or harassing another person, and (2) making a credible threat (3) with the intent to place that person in reasonable fear of death or great bodily injury.”  (People v. Ewing (1999) 76 Cal.App.4th 199, 210.)   Defendant contends there was constitutionally insufficient evidence to support his stalking conviction because the incidents within the relevant time period-May 28 and June 20, 2008-did not provide substantial evidence of a credible threat intended to put Devlin in reasonable fear.   According to defendant, the evidence concerning those incidents showed nothing more than an intent to annoy her, not to place her in fear of death or great bodily injury.   As we explain, defendant's numerous harassing phone and text messages during the relevant period, along with evidence that he broke into her apartment and spied on her, provided a reasonable, solid, and credible basis for inferring the requisite intent, particularly when viewed in light of defendant's prior violent acts and threats against Devlin.

Under section 646.9, subdivision (a), a person is guilty of stalking “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․”  The statute defines harassment as a “knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.” (§ 646.9, subd. (e).)  A “course of conduct” is defined to exclude constitutionally protected activity and “means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose.” (§ 646.9, subd. (f).)

A “credible threat” is defined to mean “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, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family.   It is not necessary to prove that the defendant had the intent to actually carry out the threat ․“ (§ 646.9, subd. (g).)  Finally, “the term ‘electronic communication device’ ” is defined to include telephones and cellular phones. (§ 646.9, subd. (h).)

Applying the standard for federal constitutional error, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  (Jackson v. Virginia (1979) 443 U.S. 307, 319.)   Accordingly, we review the record “in the light most favorable to the judgment below to determine whether it discloses substantial evidence” supporting each element of the crime.  (People v. Johnson (1980) 26 Cal.3d 557, 562.)  “Substantial evidence” is “evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”  (Id. at p. 578;  People v. Abilez (2007) 41 Cal.4th 472, 504.)  “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, quoting People v. Redmond (1969) 71 Cal.2d 745, 755;  People v. Majors (2004) 33 Cal.4th 321, 331 [the reviewing court does not resolve evidentiary conflicts, but views the evidence in a light most favorable to the People and presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence].)   The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence.  (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

The prosecution evidence concerning defendant's prior uncharged offenses against Devlin was introduced for the limited purpose of proving defendant acted with the intent to place Devlin in reasonable fear for her safety or the safety of her immediate family.   According to Devlin, when she and defendant first broke up, he refused to let her enter her apartment, spun her around, poked her in the head, and threw her down two steps and onto the ground.   The next day, defendant sent her hundreds of text messages with the numbers “187” and “666,” which she understood to be a death threat and a reference to her as the devil.   Later that year, when she returned from an evening of dancing without him, defendant called her a “slut” and a “whore,” and smothered her face with a pillow as she was lying in bed.   That same day, he tried to choke her with a scarf.   In January 2006, defendant resumed the same texting after they had broken up again, including the implicit death threat.   During a meeting in defendant's car, when Devlin refused his invitation to resume their relationship, he broke one of her fingers.   Additionally, defendant repeatedly broke into her apartment and twice brandished a knife at her.   Devlin eventually obtained a restraining order against defendant to prevent him from seeing and communicating with her.

Given that history of violence and threats, based on defendant's jealousy and anger with Devlin for refusing to resume their relationship, the events occurring between May 28 and June 20, 2008 cannot be dismissed as mere annoyances.   Beginning on the former date, while she was in Florida, defendant repeatedly sent text messages of “87” to Devlin, which she reasonably understood as a variation on the prior death threat text message.   Devlin's testimony that she reported the matter to the local police demonstrates that she took the threats seriously.   Upon her return to Los Angeles, Devlin found evidence that defendant recently broke into her apartment-the deadbolt to the front door was unlocked and defendant called her with knowledge that she had been to Florida, had spoken to someone named Brian, and was planning to move.   Defendant also repeatedly made nuisance phone calls to the office where Devlin worked.   During this same period, on approximately June 15, defendant arrived uninvited at a barbecue she was attending and called her cell phone, describing the person standing next to her.

Those repeated death threats by text messaging, coupled with the nuisance phone calls to her office, and evidence that he had not only broken into the residence where she and her daughter lived, but was actively spying on her in public, certainly amounted to strong, reasonable, and believable evidence that defendant made credible threats to Devlin with the intent of placing her in reasonable fear of death or great bodily injury.   In light of defendant's prior threats and acts of violence against her in that same context, the jury's verdict found strong evidentiary support.   As the Attorney General points out, decisional law has found substantial evidence of stalking in cases in which the evidence was weaker than that before this court.   In People v. Uecker (2009) 172 Cal.App.4th 583, 594-595, substantial evidence of the defendant's credible threat was supported by the defendant's pattern of conduct, which included numerous written notes and verbal statements over a seven-month period to the effect that “he was going to do whatever it took to get M. to go out with him, reasonably causing M. to fear for her safety,” and where “his last conversation with M. and his last note to her evidenced hostility toward her, and his final action of positioning himself where he could see her comings and goings at work signaled he was not going to take no for an answer.”   Similarly in People v. Falck (1997) 52 Cal.App.4th 287, 299, substantial evidence was found where the defendant “insisted on maintaining contact with [the victim] although she clearly was attempting to avoid him, and although he had been warned away by the police, the court and the victim's husband.”   Additionally, the defendant referred to “his prowess with a rifle,” sent her sexually suggestive letters and “black roses, symbolic of death.”  (Ibid.)

In opposition, defendant argues the gap in time between his prior violent acts and those within the alleged stalking period tends to show he no longer intended violence.   Defendant also identifies reasons to doubt Devlin's credibility.   Such arguments have no bearing on the constitutional question before this court-they were for the trier of fact to resolve.  (People v. Majors, supra, 33 Cal.4th at p. 331;  see also People v. Bolin, supra, 18 Cal.4th at p. 331;  People v. Redmond, supra, 71 Cal.2d at p. 755.)   In short, defendant improperly invites us to draw different inferences from those implicit in the jury finding.  “Even if the evidence could be reconciled with a different finding, that does not justify a conclusion that the jury's verdict was not supported by the evidence, nor does it warrant a reversal.”  (People v. Romero (2008) 44 Cal.4th 386, 400;  People v. Stanley (1995) 10 Cal.4th 764, 793 [where substantial evidence supports the jury's finding, and other circumstances support a contrary finding, the jury's finding will not be reversed].)

Admission of Prior Uncharged Conduct

Defendant contends the trial court abused its discretion by overruling his Evidence Code section 352 objection and admitting evidence of defendant's prior, uncharged threats and violent acts against Devlin.   In essence, defendant argues those prior acts-including her testimony that he had broken her finger, choked her with a scarf, threatened her with a knife, and made a threat against her boyfriend-were unduly prejudicial because they were uncorroborated and more serious than the conduct supporting the charged offense.   The argument fails because the challenged testimony was highly relevant and not unduly prejudicial on the issue proving defendant's intent in sending the text messages and making the phone calls during the relevant time period.

Evidence Code section 1101, subdivision (a) provides that evidence of a character trait is inadmissible to prove conduct on a specified occasion.   However, subdivision (b) of Evidence Code section 1101 makes it clear the limitation does not prohibit “the admission of evidence that a person committed a crime ․ when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident ․ ) other than his or her disposition to commit such an act.”   (Emphasis added;  see, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 393;  People v. Daniels (1991) 52 Cal.3d 815, 856 [“Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity.”].) As the Supreme Court has explained:  “Evidence of past offenses may not improperly affect the jury's deliberations” where, for instance, “the evidence is obviously used to effect one or more of the many legitimate purposes for which it can be introduced.”  (People v. Collie (1981) 30 Cal.3d 43, 64.)

“The trial court judge has the discretion to admit such evidence after weighing the probative value against the prejudicial effect.  [Citations.]  When reviewing the admission of evidence of other offenses, a court must consider:  (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant.  [Citation.]  Because this type of evidence can be so damaging, ‘[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.’  [Citation.]”  (People v. Daniels, supra, 52 Cal.3d at p. 856;  People v. Lewis (2001) 25 Cal.4th 610, 636-637.)

At trial, the defense objected on Evidence Code section 352 grounds as to testimony regarding defendant's violent acts and threats prior to the time period in which the charged acts of stalking occurred, arguing many of the events lacked independent corroboration and the prior acts were more numerous and serious than the charged offenses.   The prosecution, however, pointed out that there was written corroboration contained in the victim's papers filed in support of the temporary restraining order, which was granted as to defendant shortly before Devlin began receiving the relevant text messages and calls in Florida.   The trial court found the evidence relevant and admissible, but cautioned that prior bad act evidence must be limited in scope.   The court accepted the prosecutor's representation that the evidence would be limited to the incidents and statements contained in the protective order documentation.

Our review of the record supports the trial court's finding that the prior act evidence was highly relevant to prove intent and that the limitation to prior conduct referenced in the restraining order was reasonable, as it imposed a sensible limit on the testimony and ensured the defense had fair notice.   As our previous discussion demonstrated, the prior acts provided the jury with a reasonable basis for finding defendant acted with the requisite intent.   Additionally, because the prior incidents occurred within one to three years of the charged offense, it was not remote in time.  (See People v. Branch (2001) 91 Cal.App.4th 274, 284-285 [prior acts 30 years old were not remote as a matter of law];  People v. Waples (2000) 79 Cal.App.4th 1389, 1393-1395 [prior offenses between 15 and 22 years old were not too remote].)   The fact that Devlin did not report some of those threats and acts of violence to the police did not render the testimony untenable.

Defendant's authorities are unavailing.   In People v. Leon (2008) 161 Cal.App.4th 149, 611 and People v. Williams (2009) 170 Cal.App.4th 587, 610-611, the courts concluded it was an abuse of discretion to admit cumulative evidence concerning issues not reasonably subject to dispute.   That was not the case in defendant's trial, where the relevant issue was highly disputed and the prior acts evidence was not cumulative.

Moreover, the trial court eliminated any significant danger of prejudice by instructing, pursuant to Judicial Council of California Criminal Jury Instructions (2008-2009) CALCRIM No. 375, that evidence of the uncharged offenses defendant committed prior to the May 28 to June 20, 2008 time period, could be considered only for assessing whether defendant possessed the requisite intent-and then only if the jury first found defendant committed those uncharged offenses by a preponderance of the evidence.   Further, the evidence could not be considered for any other purpose, and the jury was admonished not to consider it (if believed) as showing “defendant has a bad character or is disposed to commit crime.”   Indeed, the prior acts evidence was “only one factor to consider along with all the other evidence” and was “not sufficient by itself to prove” defendant's guilt-which the prosecution must prove beyond a reasonable doubt.

As is well established, “ ‘[It is] the almost invariable assumption of the law that jurors follow their instructions.’  [Citation.]  ‘[We] presume that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.’   [Citations.]”  (United States v. Olano (1993) 507 U.S. 725, 740-741.)   There is nothing in the record-including counsels' arguments-to suggest the jury did otherwise here.   In sum, defendant suffered no prejudice in the legal sense.  “ ‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.   In applying section 352, “prejudicial” is not synonymous with “damaging.” ’   [Citation.]”  (People v. Karis (1988) 46 Cal.3d 612, 638;  People v. Morton (2008) 159 Cal.App.4th 239, 249.)

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

FOOTNOTES

FN1. All statutory references are to the Penal Code, unless noted otherwise..  FN1. All statutory references are to the Penal Code, unless noted otherwise.

FN2. Officer Julian Reyes of the Beverly Hills Police Department testified that 187 is the Penal Code section for murder..  FN2. Officer Julian Reyes of the Beverly Hills Police Department testified that 187 is the Penal Code section for murder.