People v. Therien CA3

Filed 5/7/14 P. v. Therien CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE, C074126

Plaintiff and Respondent, (Super. Ct. Nos. 62115765/62114926)

v.

RANDALL JOSEPH THERIEN,

Defendant and Appellant.

Defendant Randall Therien was found guilty of both stalking and stalking with a prior conviction in one case and of two counts of evading a police officer in a second, unrelated case. He was sentenced consecutively in the two cases. On appeal, he contends the trial court committed reversible error in the stalking case by admitting as evidence unsent note cards and a shoebox found in his residence because they were not relevant. He also contends that stalking is a lesser included offense of stalking with a prior conviction and he could not be convicted of both. Additionally, he contends when

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two or more cases are sentenced consecutively, a prior prison term enhancement can be imposed only once. Defendant is correct that the evidence should not have been admitted, but its admission was harmless. He is also correct regarding his conviction of the lesser included offense and the prior prison term enhancement. Accordingly, we will reverse the stalking conviction and strike the superfluous prison term enhancements. FACTUAL AND PROCEDURAL BACKGROUD Defendant and Kim Anderson, the stalking victim, had known each other for several years when they both attended a barbeque in 2008. After the get-together, defendant persistently expressed his interest in Anderson by sending her several e-mails on a daily basis, sex books, lingerie, cards, and other gifts, even after she told him to stop. Defendant’s attentions terrified Anderson, and in 2009 he was convicted and sent to prison for stalking her. Defendant was released in 2011. In 2012, he reinitiated contact with Anderson by sending her two letters, flowers, and a CD. His letters, for the first time, contained references to guns, explosions, and knives. Defendant referred to a sharpshooter, a .50- caliber gun versus a grapefruit in relation to somebody’s head, his .22-caliber gun, a loud 4th of July, and a “[c]ritical red state of emergency,” amongst other comments. The return address on one envelope said “ ‘[t]ake very seriously.’ ” The CD he sent her included, among other items, a photograph of defendant, a file entitled “Heart, Love U,” a file entitled “Poor Kim,” a set of pictures entitled “X-rated copy,” and several songs, including one using Anderson’s daughter’s name as a lyric. Anderson became scared because she did not know what defendant was capable of and was worried about retaliation. When defendant was arrested in 2012, Placer County Deputy Sheriff Craig Haskell searched his residence. During his search, Deputy Haskell found several unsent note cards with writing on them that seemed to reference Anderson. When Placer County