California Court of Appeal Jan 28, 2022 No. E076167Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
1
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
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.)
10
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 11
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 12
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 13
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 14
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.
15
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.
16
AI Brief
AI-generated · verify before citing
Holding. The court held that the evidence was sufficient to support the stalking conviction and the finding that a restraining order was in effect, and that the trial court properly exercised its discretion in imposing the upper term. However, the court held that the sentence on count 2 must be stayed pursuant to Penal Code section 654 because it arose from the same course of conduct as count 1.
Issues
Whether there was sufficient evidence to support the stalking conviction and the finding that a restraining order was in effect.
Whether the sentence on count 2 should be stayed pursuant to Penal Code section 654.
Whether the trial court abused its discretion in imposing the upper term on count 1.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“We conclude the evidence was sufficient to support the true finding and the stalking conviction in count 1.”
“The judgment is modified to stay the term imposed on count 2 pursuant to section 654.”