APPEAL from a judgment of the Superior Court of Shasta County, Steven A. Jahr, Judge. Affirmed. (Super. Ct. No. 05F3600)
The opinion of the court was delivered by: Sims, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant James Daniel Haller appeals following his conviction on multiple counts of criminal threats (Pen. Code, § 422*fn2), stalking (§ 646.9, subd. (a)), and assault with a deadly weapon, a knife (§ 245, subd. (a)(1)). Defendant contends the trial court (1) erred in refusing to allow defendant to present evidence at the sentencing hearing, (2) abused its discretion in failing to strike one of two prior convictions, (3) abused its discretion in imposing consecutive sentences, and (4) imposed a cruel and/or unusual punishment under the state and federal Constitutions.
In the published portion of the opinion, we shall conclude defendant‟s sentence does not constitute cruel or unusual punishment. In the unpublished portion, we reject defendant‟s other contentions of error. We shall therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with (1) criminal threats (§ 422) against his ex-wife Jacqueline Runyon on June 25, 2004; (2) criminal threats against (Runyon‟s husband) Jerry Cole on June 25, 2004; (3) criminal threats against Runyon on June 26, 2004; (4) criminal threats against Cole on June 26, 2004; (5) assault on Cole with a deadly weapon (§ 245) on June 26, 2004; and (6) stalking (§ 646.9) Runyon between May 24, 2004, and June 28, 2004 by willfully, maliciously and repeatedly following her, harassing her, and making a credible threat with the intent that she be placed in reasonable fear for the safety of herself and her family. The information also alleged defendant had two prior serious felonies (§ 1170.12) -- a June 2004 conviction for criminal threats, and a February 2000 conviction for battery with serious bodily injury (§ 243, subd. (d)) -- and a prior prison term (§ 667.5, subd. (b)) for the 2000 conviction. The information also alleged, for sentence enhancement purposes under sections 1170.12 (three strikes law), 667.5 (same), and 646.9 (stalking after conviction for criminal threats or spousal abuse): A 2004 felony conviction for criminal threats (§ 422); a 2000 felony conviction for battery with serious bodily injury (§ 243, subd. (d)); and a prior prison term (§ 667.5) related to the 2000 conviction.
Evidence adduced at trial included the following: Defendant had a history of domestic violence during his marriage to Runyon. In 1994, he punched her in the mouth, drawing blood and loosening her teeth (resulting in a misdemeanor spousal abuse conviction). In 1997, he threw an ashtray at her, hitting the back of her neck. In 1998, he punched her in the mouth (resulting in a misdemeanor spousal abuse conviction). When Runyon tried to leave defendant, he told her that if he could not have her, "nobody would." Runyon eventually divorced defendant. Despite a restraining order, defendant would not let go. In February 2003, he loitered outside Runyon‟s workplace. In March and May 2003, he went to her house and left when she called the police. In June 2003, Runyon was sleeping at the home of friends when she awoke to find defendant standing over her. Her son dragged him out of the house. Later, defendant drove by the house and said they "better have fire insurance." He eventually pled no contest to stalking and criminal threats and was placed on probation with credit for time served.
Meanwhile, Runyon met Cole in October 2003, moved in with him in November 2003, and later married him in November 2004.
In June 2004, defendant, freshly released from custody on the 2003 stalking, began leaving threatening phone messages for Runyon and Cole. Defendant called 40 to 50 times a day and threatened Cole with death, dismemberment, sodomy, and torture. On June 23, 2004, Runyon was in the yard hanging laundry when she heard defendant‟s voice say, "Oh, so that‟s where you‟re living." She ran inside without seeing defendant.
On June 25, 2004, defendant made multiple threatening phone calls. In one call, he said he was going to come over, rape Cole, "cut his thing off and stick it down his throat and make [Runyon] watch." Around 8:00 p.m., defendant appeared at Runyon‟s home with his teenage son Joshua and yelled, "Jerry, come out or I will kill you." Joshua broke a window with his fist. Defendant and Joshua left when the police were called. Runyon could not sleep that night because she was afraid defendant would break into her home. Cole sat on the couch all night, keeping guard. The next day, he had friends come to keep guard so he could sleep.
Defendant continued his threatening phone calls all day on June 26, 2004. The answering machine recorded the following call from defendant at 9:42 p.m.:
"Jackie and Jerry you know what? I am gonna come and stick that glass pipe right up your fuckin‟ hot ass and cut your nuts off and just your fuckin‟ asshole puckers up and shove "em down her fuckin‟ throat Jerry. . . . [D]on‟t go to sleep, "cause you know what? I‟m comin‟ you mother fucker, I‟m fuckin‟ comin‟. Can you hear that Jackie? You fucked up. You burnt the bridge. You fuckin‟ bitch. . . . I‟m gonna fuck your fuckin‟ world up, let‟s bring the mother fuckin‟, move in that substation, move in that mother fuckin‟ substation "cause you know what Jerry? And you know what Jackie? And Jerry you know what? I think it would be best to kick her fuckin‟ ass out right now "cause that‟s my fuckin‟ wife and I‟m coming to fuckin‟ take her."
Defendant immediately called back and said simply, "Hell." Two minutes later, he called and said, "I‟m gonna fuckin‟ fuck you guys‟ world up." One minute later, he called again and said, "Jerry Cole and Jackie Haller you fuckin‟ Jerry, you know it dude, Jackie you know what? You, you, you‟re, you‟re a chicken shit, you have no heart and it just floored me you loved me twenty-two fuckin‟ years and then you that, that shit you‟re in love with that mother fucker, I‟m gonna take that glass pipe Jackie "cause his asshole‟s quiverin‟ while I‟m fuckin‟ him right in front of you."
Defendant called again and said he was coming over to kill them. Runyon called the police, Cole retrieved a shotgun from the bedroom, and Cole‟s brother-in-law (Mike) went outside with a baseball bat.
Defendant showed up, brandishing a knife with a 12-inch blade. Mike called out a warning that defendant had a knife. Cole did not hear what Mike said but came out the front door with the shotgun, saw defendant with a shiny object in his hand, and said, "Freeze motherfucker." Defendant did not answer but kept moving. Cole fired the gun once, hitting defendant in the groin. Defendant fell to the ground. From a sitting position, he tried to throw the knife, crawled to where it fell and tried to throw it again. Police recovered a knife at the scene.
Defendant testified in his own behalf. He did not deny the threatening phone calls but says he was intoxicated and does not remember specifics. He went to the victims‟ home to try to "smooth everything over" and "maybe try to reconcile and get back together with her." He denied bringing a knife. He recalled only exchanging words with a man, and seeing the flash of a gun.
Defendant‟s son Joshua, who did not live with his mother, testified about breaking the window. He was at a market with his father when he saw a boy riding a bicycle belonging to Joshua‟s brother (who lived with their mother). Joshua asked where the boy got the bike and thus learned where Joshua‟s mother and brother were living. Joshua told defendant to stay out of sight and tried to return the bike to his brother but was rebuffed by his brother and mother. Joshua was angry that they wanted nothing to do with him and therefore hit the window.
The defense presented an acquaintance of Cole who testified that Cole bragged about contriving a self-defense situation to send his wife‟s ex-husband to prison for life. The acquaintance had had his own altercation with Cole.
The jury found defendant guilty on all counts. The trial court found true the allegations of prior convictions and prior prison term.
In sentencing defendant in June 2007, the trial court selected Count Five (assault with deadly weapon) as the principal term and imposed a sentence of 25 years to life in prison. The court imposed a consecutive sentence of 25 years to life for Count One (criminal threats to Runyon on June 25, 2004), and the same for Count Three (criminal threats to Runyon on June 26, 2004). Each of these three terms was enhanced by one year for the prior prison term (§ 667.5). On Counts Two and Four (criminal threats to Cole), the court imposed concurrent terms of 25 years to life, enhanced by one year for the prior prison term. Sentence on Count Six (stalking) was stayed pursuant to section 654. The court thus sentenced defendant to life in prison with possibility of parole, with a minimum of 78 years.
Defendant committed these offenses while on probation for the 2004 conviction for criminal threat against Runyon (case No. 03F3515). The court revoked probation and sentenced defendant to four years, eight months for the prior case, to be served consecutively to the sentence on the current case.
I. Evidence at Sentencing Hearing
Defendant contends the trial court erred in refusing to allow him to present evidence at the sentencing hearing. We see no grounds for reversal.
At the sentencing hearing, the trial court expressed its tentative decision to impose a total sentence of 78 years to life in prison. Defense counsel argued the sentence was too long and said:
"[Defense counsel]: . . . I have three very brief witnesses I‟d like to call.
[Defendant] and two of his relatives who would not be lengthy.
"THE COURT: I‟ll decline the request.
"[Defense counsel]: May I call [defendant]?
"THE COURT: I‟ll decline the request.
"[Defense counsel]: May I make an offer of proof in regards to what [defendant] would say?
"[Defense counsel]: Your Honor, . . . the probation report . . . says, "His action and demeanor portray a classic stalker.‟ Now, I‟m coming to the part I‟m concerned with. "And to this day he swears Ms. Runyon is his wife.‟ [¶] If [defendant] were to testify, he would say that is absolutely not true. In fact, he declined to make any statements, oral or in writing to the probation officer."
The trial court agreed the probation report stated defendant elected not to make a statement when the probation ...