California Court of Appeals, Third District, Placer
CERTIFIED FOR PARTIAL PUBLICATION [*]
APPEAL from a judgment of the Superior Court of Placer County, No. 62106498 Mark S. Curry, Judge.
J. Wilder Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Donald James McPheeters of felony stalking in violation of a restraining order (Pen. Code, § 646.9, subd. (b) [count 1]; unless otherwise stated, all statutory references that follow are to the Penal Code), and three counts of disobeying a court order (§ 166, subds. (a)(4), (c)(1) [counts 2 through 4]). The trial court found true an allegation as to count 1 that defendant had a prior conviction for assault with a deadly weapon (§ 245, subd. (a)(1)) within the meaning of sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d). The court sentenced defendant to the midterm of three years in state prison for count 1, doubled to six years because of defendant’s prior strike. For counts 2 through 4, the court sentenced defendant concurrently to six months each in state prison. The court awarded defendant 175 days of actual credit and 87 days of conduct credit, for a total of 262 days credit.
Defendant contends on appeal that the trial court erred in instructing the jury, that the six-month sentences on the misdemeanor charges should have been stayed pursuant to section 654, and that he is entitled to two-for-two conduct credits under the current section 4019 rather than four-for-two conduct credits under former section 4019, which was in effect when defendant was arrested. We agree the misdemeanor sentences on counts 2 through 4 should have been stayed under section 654. In all other respects, we affirm the judgment.
Facts and Proceedings
Defendant and the victim, Kathryn C., met in 2003. Although never married, they were in a relationship for approximately five and a half years. They had three children together, one of whom passed away shortly after birth. The couple broke up in 2009 while Kathryn C. was pregnant with their third child.
Defendant has a long and violent criminal history, and in particular a history of committing domestic violence against Kathryn C. Defendant verbally and emotionally abused Kathryn C. on countless occasions and physically abused her three times. In April 2004, defendant and Kathryn C. were watching a fight on television and were rooting for opposing fighters. Kathryn C. playfully teased defendant when her contestant won. Defendant began screaming at Kathryn C. and threw a phone across the room, hitting her in the leg. Defendant was convicted of a misdemeanor domestic violence charge.
In September 2004, Kathryn C. was sitting on a bicycle she and defendant had purchased. After getting into an argument, defendant grabbed Kathryn C.’s wrist and yanked her off the bike. Kathryn C. sustained bruises and scratches to her wrist and ankle. Kathryn C. then went into the house she shared with her mother. Defendant followed, charging towards the screen door and throwing his body against the door to try to force his way into the house.
Defendant began yelling at Kathryn C. for his medication, which was located in her room upstairs. After retrieving defendant’s pills, Kathryn C. handed the medicine to her mother. Kathryn C.’s mother placed the pills in a dining room window. Defendant tried to grab Kathryn C.’s mother and pull her through the window. Sometime during the melee, defendant made his way into the house and Kathryn C.’s mother attempted to call 911. After she hung up, the emergency operator called back and Kathryn C. answered the phone. While Kathryn C. was on the phone, defendant pulled the phone plug out of the wall stating he did not want Kathryn C. speaking to the police and that he was not going back to jail. Defendant grabbed a knife and ran upstairs threatening to kill himself. Among other things, defendant was convicted in Placer County of misdemeanor domestic battery.
In June 2005 when defendant and Kathryn C. were living in the state of Washington, defendant became enraged when he could not locate a shaving razor. After screaming at Kathryn C. that she had lost the razor, defendant charged her and threw her on the bed. Defendant shoved his forearm across Kathryn C.’s throat and began choking her for approximately a minute; Kathryn C. could barely breathe. While choking her defendant stated, “I don’t want you to breathe.” Defendant’s mother ran into the bedroom, jumped on defendant’s back, and pulled his hair to get him to stop choking Kathryn C. Defendant was convicted of a felony domestic violence-related assault.
No-contact orders were issued in Washington and California protecting Kathryn C. from defendant. Following the choking incident, a Washington court issued a no-contact order in September 2005. In February 2010, the Placer County Superior Court issued a criminal protective order prohibiting defendant from having any contact with Kathryn C. That order was modified in March 2010 to further prohibit defendant from coming within 100 yards of Kathryn C. In August 2010, the Placer County court again modified the protective order requiring defendant to stay at least 60 yards away from Kathryn C., but permitting peaceful contact for the sole purpose of safely exchanging their children during court-ordered supervised visits between defendant and the children at a designated facility known as Parenting Time.
Defendant’s violent past terrified Kathryn C., and she was very afraid for herself and her children because defendant continually violated the no-contact orders. She called the police six to 10 times to report defendant’s violations. Although he had been arrested and jailed on at least one violation, upon his release defendant immediately contacted Kathryn C. Kathryn C. did not seek any new restraining orders because she believed defendant did not abide by the existing protective orders and she felt the orders did little to keep him away from her.
Between 2005 and 2010, Kathryn C. invited defendant over to her house approximately 15 times despite the no-contact orders so that he could see his son and help her while she was pregnant with their third child. After the birth in April 2010, Kathryn C. stopped inviting defendant over.
Yet defendant continued contacting Kathryn C. On June 19, 2010, defendant showed up unannounced at Kathryn C.’s home accusing her of stealing money from his father. When police later spoke to defendant on the phone about the incident, reminding him of the no-contact restraining order, defendant said he did not care whether the protective order was no-contact or peaceful contact because he intended to continue contacting Kathryn C. and his children regardless of the nature of the order.
On August 10, 2010, defendant had a friend living near Kathryn C. call her to convince Kathryn C. to bring the children over to the friend’s house to see defendant. Kathryn C. called police to report a violation of the no-contact order. Defendant was convicted of a misdemeanor for violating the restraining order.
During this time period Kathryn C. started dating another man, David F. They began dating at the end of June 2010 and by August 2010 David F. was living fulltime with Kathryn C. at her house. The three had been mutual friends when Kathryn C. and defendant were together. After Kathryn C. and David F. began dating, defendant was verbally combative and repeatedly tried to pick fights with David F. in front of Kathryn C. or otherwise make him uncomfortable. She believed defendant was jealous of David F. because he perceived him as taking over defendant’s family. Around this time, defendant told Kathryn C., “If you don’t be careful, something is going to happen to you.”
Toward the end of April or beginning of May 2011, defendant moved into a friend’s apartment located next door to Kathryn C.’s apartment. After moving in, defendant’s contacts with Kathryn C. became more frequent and aggressive. Defendant could see Kathryn C. walking from her residence to the sidewalk through a window in his apartment. He began contacting her two to three times a day--nearly every time Kathryn C. left her apartment. In approximately one month, defendant contacted Kathryn C. between 40 and 50 times.
During this time defendant repeatedly asked Kathryn C. to let him see or take the children. When Kathryn C. told him no and asked him to leave her alone, defendant swore at her and angrily stated, “Somebody needs to beat you up....” On multiple occasions after Kathryn C. pleaded with defendant to stop bothering her, defendant told Kathryn C. that “Somebody is going to kick your butt just like I did this to [certain individuals defendant had hurt in other fights].”
On May 20, 2011, defendant approached Kathryn C. and David F. near the garage of Kathryn C.’s apartment requesting to see the children. David F. told defendant they did not want to speak to him right then and asked him to go away. Defendant replied either, “Oh, talk to me that way, someone is going to end up breaking your jaw for talking to somebody that way, ” or “You better get the fuck out of here or you’re going to get knocked out.”  After Kathryn C. told David F. she did not feel safe with defendant living next door because he constantly intimidated her, David F. flagged down a passing police officer, Officer Fox, and reported the incident.
Officer Fox located and arrested defendant a short distance away. After being placed under arrest, defendant became irate, cussing at Officer Fox and calling him a “piece of shit.” Defendant repeated that the officer was a “piece of shit” and that he was “just as fucked up as the justice system.” While in the patrol car, defendant told the officer that the restraining order against him “didn’t mean shit, and he was going to be out [of jail] in 20 minutes... and he was going to go back to [Kathryn C.’s] house immediately.” When the officer responded that he could not contact Kathryn C. due to the restraining order defendant replied, “You can’t keep me away. I have proof. There’s two warrants for the same thing and the dollar amounts are so low for the warrants that I’ll just... [get released on his own recognizance] from the jail.”
Based on defendant’s statements about immediately returning to Kathryn C.’s house upon his release, Officer Fox contacted the on-call judge to raise defendant’s bail. When defendant learned of the higher bail, defendant said he did not care and would not show up when his case was called. Defendant also said, “When I get out of here, if I shoot her, there’s nothing you can do about it.” Defendant repeated the statement when asked by the officer what he had said.
Officer Fox called Kathryn C. and told her what defendant said about shooting her. He asked whether Kathryn C. knew if defendant had a gun. She said she did not know, but that she was very scared. She also informed the officer defendant had told her there was nothing the police could do to keep him away from her.
Defendant was charged with stalking Kathryn C. from June 1, 2010 to May 20, 2011. He was also charged with violating the no-contact orders on June 19 and August 10, 2010 and May 20, 2011. A jury convicted defendant of all charges. Defendant timely appeals.
CALCRIM No. 1301
Defendant contends the trial court erred in instructing the jury on the stalking charge. Defendant’s challenge to ...