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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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



                                                             1
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

                                              2
District Attorney investigator Robert Swanson executed a search warrant for defendant’s
residence, he found a shoebox taped shut with Anderson’s name on it and “Top secret
issue” in one corner. In the shoebox was a pair of men’s underwear, a pink bra, sandals,
a Glamour magazine, and a Cosmopolitan magazine. The note cards and the shoe box
with its contents were admitted into evidence at the stalking trial over defendant’s
objections.
       Defendant waived jury trial on the prior conviction which the court found to be
true. A jury found him guilty of stalking. In a second, unrelated trial, defendant was
found guilty of two counts of evading a police officer.
       The trial court sentenced defendant to an aggregate of six years and eight months
in prison for the two cases. In the stalking case, defendant received the upper term of
five years for his conviction of stalking with a prior. Pursuant to Penal Code1 section
667.5, subdivision (b), (the prior prison term enhancement), the court added an additional
year to the sentence, for a combined six years. For count two, the subordinate count of
stalking, the court sentenced defendant to eight months to run concurrently with the
principal term and then stayed the sentence per section 654.
       In the second case, the trial court sentenced defendant to eight months for each
count of evading a police officer, to run concurrently. These sentences were to run
consecutively to the first case for a total of six years and eight months. The trial court
also imposed and stayed two one-year prior prison term enhancements on the evading
charges.
                                       DISCUSSION
       Defendant argues the trial court committed reversible error when it admitted the
unsent note cards and shoebox as evidence because Anderson was unaware of them and




1      Further section references are to the Penal Code.

                                              3
therefore they were not relevant to the stalking charge. Defendant is correct that the
cards and shoebox were not admissible, but the error is harmless. He also argues: (1) his
stalking conviction should be reversed because it is a lesser included offense to his
conviction of stalking with a prior conviction; and (2) the prior prison term enhancements
on the evading police charges should be stricken because an identical enhancement was
added to the stalking conviction, but when sentences are imposed consecutively, the
enhancement can be imposed only once. Defendant is correct on both of these issues.
                                               I
                 The Admission Of The Note Cards And Shoebox Was Error
       “Only relevant evidence is admissible.” (People v. Crittenden (1994) 9 Cal.4th
83, 132.) “The trial court has broad discretion in determining the relevance of evidence
[citations] but lacks discretion to admit irrelevant evidence.” (People v. Scheid (1997) 16
Cal.4th 1, 14.) “The test of relevance is whether the evidence tends ‘logically, naturally,
and by reasonable inference’ to establish material facts such as identity, intent, or
motive.” (People v. Garceau (1993) 6 Cal.4th 140, 177.)
       To be relevant, the unsent note cards and the shoebox had to help establish a
material fact relating to the stalking charge. The relevant portion of section 646.9
provides:
       “(a) Any person who willfully, maliciously, and repeatedly follows or willfully
and maliciously harasses another person and who makes a credible threat with the intent
to place that person in reasonable fear for his or her safety, or the safety of his or her
immediate family is guilty of the crime of stalking . . . .
       “[¶] . . . [¶]
       “(e) For the purposes of this section, ‘harasses’ means engages in a knowing and
willful course of conduct directed at a specific person that seriously alarms, annoys,
torments, or terrorizes the person, and that serves no legitimate purpose.



                                               4
       “(f) For the purposes of this section, ‘course of conduct’ means two or more acts
occurring over a period of time, however short, evidencing a continuity of purpose.
Constitutionally protected activity is not included within the meaning of ‘course of
conduct.’ ” (Italics added.)
       In People v. Norman (1999) 75 Cal.App.4th 1234, the court held the defendant’s
conduct and the victim’s fear did not have to occur contemporaneously, but the victim
must have learned about the defendant’s conduct at some time and suffered the requisite
fear for his own safety and the safety of his family. (Id. at pp. 1240-1241.) “[W]e agree
with Norman that the victim must become aware of the stalker’s conduct--because,
without awareness, the victim could not suffer the emotional distress that is an element of
the crime . . . .” (Id. at p. 1241.) “The result is the stalking statute prohibits a course of
conduct directed at a specific person that a reasonable person would consider as seriously
alarming, seriously annoying, or seriously tormenting a reasonable person.” (People v.
Ewing (1999) 76 Cal.App.4th 199, 208.) (Italics omitted.) A reasonable person cannot
find a course of conduct alarming, annoying, or tormenting if she is unaware of it.
Without knowledge of the conduct, a victim cannot experience fear and the elements of
the crime of stalking are not met.
       The People argue the note cards and shoebox were relevant to defendant’s intent
because they reference Anderson. For a conviction of stalking, defendant must have
intended to cause fear. But since Anderson was unaware of the note cards and shoebox,
they could not, and did not, cause her fear. The People cannot show intent to cause fear
with evidence of items never brought to the victim’s attention and therefore incapable of
causing her fear.
       For the note cards and shoebox to be relevant they would have to be probative of
defendant’s intent behind those items he did send to Anderson. They are not. Things that
defendant chose not to send to Anderson do not have any tendency to show that the



                                               5
things he did send her were intended to cause fear, just because her name was on the box
and the cards he did not send.
       The People also argue the note cards and shoebox are probative of defendant’s
“ ‘course of conduct’ ” toward the victim. To harass the victim, defendant had to engage
in a course of conduct, defined as two or more acts directed at a specific person, which
seriously alarms, annoys, torments, or terrorizes that person. (§ 646.9, subds. (e) & (f).)
Without being sent to the victim, these items cannot be part of a “course of conduct
directed” to the victim as required by the statute. Nor could these unsent items constitute
evidence of intent to engage in a course of conduct. They are irrelevant to defendant’s
course of conduct as it relates to the definition of stalking.
                                               II
                 The Admission Of The Irrelevant Evidence Was Harmless
       Defendant argues the admission of the note cards and shoebox was reversible error
because there was no other evidence of a credible threat. Defendant is wrong.
       The trial court’s error in admission of evidence is evaluated under the Watson2
standard. (People v. Avitia (2005) 127 Cal.App.4th 185, 193.) We must “determine
whether it was ‘reasonably probable that a result more favorable to defendant would have
resulted’ ” had the challenged evidence not been admitted. (People v. Williams (2009)
170 Cal.App.4th 587, 612.) In this case, even excluding the note cards and shoebox,
there was still an abundance of evidence to support defendant’s conviction. Defendant
had already been convicted of this exact crime, against the same person. Evidence from
his first conviction was admitted. After he was released in 2011, he reinitiated contact
with Anderson through letters that, for the first time, contained references to guns and
weapons, which could easily be considered a threat. Defendant also mailed her a CD




2      People v. Watson (1956) 46 Cal.2d 818.

                                               6
which contained, 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 a song
that referenced her daughter. Anderson did not know what defendant was capable of and
was scared of retaliation for the time he spent in prison.
       Considering the above and the other evidence presented at trial, there is no
question that the escalation of violent references in the letters, which resulted in the fear
of retribution, constituted a credible threat. While the shoebox and cards were not helpful
to defendant, the other properly admitted evidence was more than sufficient for a
conviction. Allowing the note cards and shoebox into evidence was error but the error
was harmless.
                                              III
                   Defendant’s Stalking Conviction Should Be Reversed.
       Defendant argues his conviction of stalking should be reversed because it is a
lesser included offense to his conviction of stalking with a prior. The People agree. The
People and defendant are correct.
       “ ‘[I]f a crime cannot be committed without also necessarily committing a lesser
offense, the latter is a lesser included offense within the former.’ [Citation.] In such
cases, a defendant may not be convicted of both the greater and the lesser offense.”
(People v. Milward (2011) 52 Cal.4th 580, 585.) Defendant was convicted of both
stalking and stalking with a prior conviction. The only difference between the two is the
prior conviction. (§646.9, subds. (a) & (c)(2).) Stalking with a prior cannot be
committed without committing the stalking offense and thus stalking is a lesser included
offense. Therefore the stalking conviction must be reversed.
                                              IV
         The Prison Term Enhancements In The Evading Case Must Be Stricken
       Defendant argues the prior prison term enhancements imposed in the evading case
must be stricken rather than stayed because this enhancement applies only once to a

                                              7
single aggregate sentence. The People agree. The People and defendant are again
correct.
       The trial court imposed a prior prison term enhancement in both the stalking case
and the evading case (in which it imposed two). The sentences for the two cases were
imposed consecutively, creating one aggregate term, and the enhancements were stayed
for the evasion conviction. “Prior prison term enhancements are status enhancements
which can be imposed only once, on the aggregate sentence.” (People v. Edwards (2011)
195 Cal.App.4th 1051, 1060.) The court erred in imposing and staying two prior prison
term enhancements separately in the evading case. They must be stricken.
                                        DISPOSITION
           Defendant’s conviction of stalking is reversed and the two prior prison term
enhancements in the evading case are stricken. As modified, the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment and to forward a
copy of the amended abstract to the Department of Corrections and Rehabilitation.



                                                         ROBIE                 , Acting P. J.



We concur:



      BUTZ                    , J.



      HOCH                    , J.




                                               8
