(Ventura County Super. Ct. No. 2008-012403). John E. Dobroth, Judge.
The opinion of the court was delivered by: Coffee, J.
CERTIFIED FOR PUBLICATION
Here, we conclude that stalking is an act of domestic violence and admissible to prove propensity to commit the crime of making criminal threats.
Jason Robert Ogle appeals from judgment after conviction by jury on three felony counts: making criminal threats (Pen. Code, § 422), disobeying a domestic relations order (Pen. Code, § 273.6, subd. (d)) and stalking (Pen. Code, § 646.9, subd. (b)). Appellant admitted that he had served a prior prison term. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced him to five years in state prison, consisting of a four-year upper term for stalking, plus one year for the prior prison term. The court imposed and stayed midterm sentences for the remaining counts pursuant to Penal Code section 654.
Appellant contends (1) that his past conviction for stalking was inadmissible to prove propensity because it was not a crime of domestic violence within the meaning of Evidence Code section 1109*fn1 and his counsel rendered ineffective assistance by not objecting to its admission, and (2) that the court abused its discretion when it admitted other acts of domestic violence because they were more prejudicial than probative. We affirm.
By separate order we will deny appellant's petition for writ of mandate in Case Number B217637.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and his ex-wife were divorced in 2004. Appellant has a history of domestic violence against her. In 2004, a permanent restraining order was issued against him. He went to prison after he violated the order by stalking her. Upon release, he committed the present offenses.
On the morning February 4, 2007, appellant's ex-wife received a series of threatening calls from him. He said, "I'm back. I'm going to get you. You're dead." He threatened to kill members of her family, said he had been watching her, and gave details about her current activities. After the first calls, her father answered the phone. He recognized appellant's voice. A police officer was summoned and heard appellant, on speaker phone, threaten to kill his ex-wife, her father and any current boyfriend. Appellant left twelve voicemail messages over a two-hour period, and identified himself by name. He boasted that he had "absconded" from parole. Appellant said he did not care if police listened to his calls because he could get to his ex-wife before they could get to him. His ex-wife's mother also received a threatening call on the same morning and recognized appellant's voice.
At trial, the jury heard the recorded messages and the testimony of appellant's ex-wife, her parents and two sheriffs' deputies. The defense theory was that there was reasonable doubt as to appellant's identity.
The prosecution offered evidence of specific prior acts of domestic violence against his ex-wife pursuant to sections 1101, subdivision (b) and 1109. Defense counsel objected on the grounds that the evidence was unduly prejudicial and likely to consume undue time. He requested that the conduct be limited to two or three incidents. After a hearing, the court allowed the evidence.
Appellant's ex-wife testified that in 2002, during their marriage, appellant kicked and punched her and drove recklessly while threatening to kill them both. About a month later, appellant beat her in their home and threatened her with a knife. She did not report either of these incidents.
In February of 2004, she obtained a temporary restraining order against appellant. In March of 2004 he called her, for which he was convicted of violating the restraining order. (Pen. Code, § 273.6, subd. (a).) She obtained a permanent restraining order against him.
In April of 2004, appellant hid in his ex-wife's van at her workplace and then attacked her as she drove home. She was able to stop the car and escape after a struggle. For this conduct, appellant was convicted of ...