Filed 2/10/15 P. v. Wheeler CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066696
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F08901838)
                   v.

DARNELL WEBSTER WHEELER,                                                                 OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
         Michael B. McPartland, 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, Assistant Attorney General, Catherine Chatman and Michael
Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Appellant/defendant Darnell Webster Wheeler was charged with multiple offenses
based on a series of domestic violence and stalking incidents he committed against his
estranged wife. He was convicted of first degree residential burglary, based upon his
entry of a home which he owned and treated as a rental property, and where his estranged
wife was living as a tenant (Pen. Code,1 §§ 459, 460, subd. (a)); felony stalking of his
estranged wife committed during a five-month period (§ 646.9, subd. (a)); and
misdemeanor disobeying a domestic relations court order (§ 273.6, subd. (a)); with six
prior strike convictions and one prior serious felony enhancement. He was sentenced to
two consecutive third strike terms of 25 years to life, for a total of 50 years to life plus
five years for the prior serious felony enhancement.
       On appeal, defendant argues his conviction for residential burglary must be
reversed because he owned the house that he broke into; he had an unconditional
possessory right to enter even though his estranged wife was living there; and the jury
was not properly instructed on the elements of the offense. He also contends the court
improperly imposed consecutive sentences for burglary and stalking in violation of
section 654. Finally, he argues the court erroneously calculated his presentence credits.
We will order the correction of his presentence credits and otherwise affirm.
                                            FACTS
       Defendant and Clezel Sewell met in high school in Fresno and periodically kept in
touch in the following years. Sewell became a school counselor and lived in Fontana
with her teenage daughter.
       In 1993 and 1994, defendant was convicted of criminal threats (§ 422); kidnapping
(§ 207); and felony and misdemeanor corporal injury to a spouse (§ 273.5, subd. (a)).
The victim was his former wife.2



       1   All further statutory citations are to the Penal Code unless otherwise indicated.
       2 According to the probation report, defendant’s prior convictions, which were
alleged as the strikes in this case, were from three separate incidents in 1992 and 1993,
where defendant kidnapped, sexually assaulted, and repeatedly threatened his previous


                                               2.
       By 2006, defendant had been released from prison and he lived in Fresno. He was
on parole and had to wear an electronic monitor. During that time, he contacted Sewell
in Fontana, and they renewed their friendship.
       Defendant gave Sewell a pink cell phone so he could pay for their long distance
calls. He told her to give up her personal cell phone. Sewell accepted the pink cell
phone, but she also kept her personal cell phone and continued to use it for other matters.
Defendant had the contract and paid the bills for the pink cell phone.3
       Sewell testified that soon after she started dating defendant, she learned about his
felony convictions and prison record. They talked about what happened, and she decided
she was not afraid of defendant and continued their relationship.
       Early in 2007, defendant proposed to Sewell, and she agreed to marry him.
Defendant still lived in Fresno. Sewell planned to stay in Fontana until she finished the
school year, and then she would join defendant and move to Fresno. Sewell testified they
also decided she would take a year off from her career and help defendant with his
various hauling and construction businesses.
The DeYoung and Ellery Homes
       When they started dating, defendant owned and was living in a house on DeYoung
Drive (the “DeYoung home”) in Fresno. In January 2007, after they were engaged but
prior to their marriage, defendant purchased a larger home on Ellery Way (the “Ellery
home”). Sewell was not living with defendant when he bought and furnished the Ellery
home and testified that she did not know he was going to spend that much money on



wife after their separation. He was sentenced to 21 years and four months in prison. He
was released on parole in 2005.
       3As we will explain below, defendant later took the pink cell phone away from
Sewell, and it was subsequently found attached to the undercarriage of her car. A
prosecution expert testified defendant could have used the cell phone to track Sewell.



                                             3.
another house. Defendant told Sewell that he wanted them to live in the Ellery home
after their marriage.
       On March 31, 2007, defendant and Sewell were married. Sewell and her daughter
remained in Fontana so she could finish her teaching contract. Defendant moved into the
Ellery home, but he still owned the DeYoung home. Sewell testified defendant said there
were renters living in the DeYoung home. At trial, defendant also testified he had
“several different renters” living in the DeYoung home after he moved out.4
Sewell Moves to Fresno
       On August 1, 2007, Sewell and her daughter moved from Fontana and lived in the
Ellery home in Fresno with defendant. Sewell testified that defendant’s teenage daughter
and niece also lived with them. Sewell testified defendant said he could track his
daughter using her cell phone, and “he wanted me to switch my daughter’s service over,
because she was the only one in the household that wasn’t using the same type of plan, so
we could track her, but I never did switch her phone number.”
Sewell Moves to the DeYoung Home
       Shortly after she moved to Fresno, Sewell’s relationship with defendant started to
deteriorate because of personal problems and family tensions that were not apparent
while they were dating. Sewell tried to talk to defendant about their problems, but things
did not change.
       By the end of August 2007, Sewell decided to separate from defendant and move
out of the Ellery home. She asked defendant if she could move into the DeYoung home.

       4 As we will discuss below, defendant and Sewell lived in the Ellery home once
she moved to Fresno. After their separation, defendant remained in the Ellery home.
Sewell moved into the DeYoung home, lived there without defendant, changed the locks,
and obtained a restraining order against him. Defendant was convicted of burglarizing
the DeYoung home when he hired a locksmith to open the residence while Sewell was
not home, and he was found hiding in a closet. In issues I and II, post, we will address
his contentions that he could not be convicted of burglarizing a home which he owned.



                                            4.
Sewell testified that defendant refused, and said she should “leave period” and return to
Fontana if she was not going to help with his businesses. Sewell testified defendant said
“that I wasn’t going to stay here and nothing happen to me.” Sewell did not take his
statement seriously.
        Sewell testified that during their relationship, she had loaned “a great sum of
money” to defendant for his businesses: $30,000 in cash, written on personal checks
from her bank account; and $10,000 on her credit card. He had not repaid the money
when they separated.
        Sewell testified defendant eventually agreed she could move into the DeYoung
home upon their separation. Defendant said he would deduct the monthly rent for the
DeYoung home from the large debt he owed Sewell. Sewell separately paid for the
utilities.
        On September 1, 2007, Sewell and her daughter moved from the Ellery home into
the DeYoung home. Her uncle, Albert Willis, lived in the DeYoung home with them.
Defendant continued to live in the Ellery home.
Initial Incidents at the DeYoung Home
        After she moved into the DeYoung home, defendant and Sewell attended some
counseling sessions, went on a few dates, and tried to reconcile. However, defendant
acted “volatile … one minute you need to go back to Fontana, one minute let’s try to
work it out, one minute you need to come back to the Ellery place to help me with these
bills. It was just sporadic and all over the place.” Sewell became afraid of defendant
because his actions were “kind of like night and day.” Sometimes he would be nice to
her, but other times they argued, and he left angry messages for her. On some occasions,
she would be shopping and suddenly defendant would appear at the same place.
        One evening in October or November 2007, Sewell was at the DeYoung home and
talked to defendant on the telephone. They argued and she hung up. After the call, she
went to bed and woke up to find defendant sitting on her bed looking at her.

                                              5.
         On January 1, 2008, Sewell cut off dating and any form of intimacy with
defendant because she was frightened by these incidents, and she realized they did not
have a relationship anymore.
         On or about January 7, 2008, Sewell visited the Ellery home to do laundry, and
spent the night there. She did not have intimate contact with defendant that night. When
she got up the next morning, defendant had already left. Sewell went outside and
discovered her car had been vandalized while it was parked in the driveway. She
reported the damage to the police and suspected defendant was responsible.
The January 17, 2008, Incident at the DeYoung home5
         Around 8:00 a.m. on January 17, 2008, Sewell drove into the garage of the
DeYoung home after taking her daughter to school. As the outer garage door was
closing, defendant drove a pickup truck under the door to block it.
         Sewell testified she stayed inside her car. Defendant walked up to her car and
yelled at her. Sewell closed the car window and told defendant she was going to call the
police if he did not leave. Sewell repeatedly honked her car horn and hoped the
neighbors would hear. Defendant finally walked out of the garage and backed his truck
into the street. Sewell testified she did not call the police because she just wanted him to
leave.
         Sewell closed the outer garage door. She went inside the house using the door
between the garage and the kitchen. Sewell started to get ready for a job interview.
Defendant called the house telephone and left a message that he dropped his wallet in the


         5
         Defendant was charged with count I, false imprisonment by violence, based on
the January 17, 2008, incident at the DeYoung home. He was found not guilty of the
charged offense and the lesser included offenses of attempted false imprisonment and
misdemeanor false imprisonment. However, we will recount Sewell’s testimony about
this incident because it is relevant to defendant’s subsequent conduct and his stalking
conviction.



                                              6.
garage. Sewell did not answer the call, but she went back to the garage to look for the
wallet.
          As Sewell entered the garage, her burglar alarm sounded and she discovered
defendant was in the garage. Defendant forced his way from the garage into the kitchen.
He yelled at Sewell to “shut the F’ing alarm off.” Sewell testified that she initially did
not take defendant’s actions seriously.
          Sewell testified she was holding both her personal cell phone and the pink cell
phone that defendant had given her. Defendant started “tussling” with her and took back
the pink cell phone, but Sewell held onto her personal cell phone.6
          At some point during this incident, Sewell’s personal cell phone was activated and
part of her encounter with defendant was recorded on her cell phone.
          Sewell testified defendant accused her of talking to a former boyfriend and said he
was “tracking” her and had “messages.” Sewell tried to escape from the house, but
defendant stopped her from leaving. Sewell ran to the front door, but defendant pushed
her on the sofa. Defendant sat on top of her so that she could not move.7 Sewell was
crying and afraid, and felt “like I was going to die.” She told defendant to “go ahead and
kill me. I will be dead anyway. I had just given up.”
          Sewell testified defendant said: “I brought you to Fresno for me. I don’t want to
see you with anyone else. And you need to go back to Fontana. Don’t think you are
going to stay in Fresno and nothing happens to you.” Defendant also said: “I know


          6
        As we will discuss below, two months after this incident, the pink cell phone was
found attached under the frame of Sewell’s car, and a prosecution witness testified it
would have been possible for defendant to track the movements of the vehicle. There
was conflicting evidence as to how long the cell phone’s battery would have lasted
without being charged.
          7   Sewell testified she weighed 130 to 140 pounds, and defendant weighed 210
pounds.



                                               7.
everything you got to do (unintelligible),” and that she had a job interview that day.
Sewell had been concerned that defendant was watching her, and now she realized he
was.
       Sewell yelled at defendant “something like now I believe what you did to your ex-
wife is true,” referring to his prior convictions for kidnapping and rape. Defendant
looked at her with “glazed eyes” and said, “I’m not raping you.” Defendant finally left
when Sewell’s telephone rang.
       Sewell called 911 and reported the incident. At 8:30 a.m., Officer David Griffin
responded to the DeYoung home. Griffin testified Sewell was calm, coherent, and very
upset. She did not have any visible injuries. Sewell played the cell phone recording of
what happened, and Griffin testified most of the tape was inaudible.
The Temporary Restraining Order
       On January 18, 2008, the day after this incident, Sewell applied for a temporary
restraining order against defendant. She changed the locks on the DeYoung home and
filed for divorce.
       Sewell also reported the assault to Agent Andrew Mounts, defendant’s parole
officer, and played the cell phone recording for him. Sewell told Mounts she was afraid
defendant was going to kill her. Mounts told Sewell she was not in danger, and
defendant would not hurt her.
       On January 21, 2008, the court issued a temporary restraining order on Sewell’s
motion, that defendant could not “harass, attack, strike, threaten, assault, sexually or
otherwise, hit, follow, stalk, molest, destroy personal property, disturb the peace, keep
under surveillance or block movements” of Sewell, her daughter, and her uncle; and that
he had to stay at least 100 yards away from them and their cars. On January 25, 2008, the
order was served on a man at the Ellery home who identified himself as defendant. The
order was valid until February 6, 2008.



                                              8.
       Shortly after the court issued the restraining order, Sewell received numerous
telephone calls on her personal cell phone from a blocked number that she did not
answer. The caller occasionally left messages filled with profanities, warning her to be
careful because “what you say may be heard or something to that effect.” She believed
defendant made the calls, but she did not know for sure.
Defendant’s Burglary of the DeYoung Home [Count III]
       As of January 26, 2008, Sewell continued to live in the DeYoung home with her
daughter and her uncle, Alfred Willis. Defendant was living in the Ellery home, he was
subject to the restraining order, and his parole officer had instructed him to stay away
from the DeYoung home. Willis had been working for defendant, but defendant had
fired him.
       Around 8:00 p.m., Sewell and Willis left the DeYoung home and drove to the
movie theater at the River Park Shopping Center. Sewell’s daughter was out of town.
Willis testified he never saw defendant at the shopping center. Willis went into the
theater before Sewell.
       Sewell stayed outside the theater and called a friend. She suddenly saw defendant
less than 100 feet away from her. He was dressed completely in black, he was “leering”
and “staring … with this evil look, looked like he was going to attack me or something.”
       Sewell walked around the shopping center. Defendant followed and stared at her.
Sewell testified there were a lot of people around, and she did not think he would do
anything in front of them. Sewell went into the theater. Defendant did not follow her.
       While Sewell was in the theater, defendant drove to the DeYoung home. He
called Larry Lopez, a mobile locksmith. Lopez testified defendant said he was locked out
of his house and gave him directions to the DeYoung home.
       Around 10:15 p.m., Lopez arrived at the DeYoung home and met defendant
outside. Defendant asked him to unlock the door. Lopez asked for identification and



                                             9.
defendant proved the house belonged to him. Lopez used his tools and opened the front
door, which might have made it difficult to use the same key again.
          Lopez testified defendant went inside the house, and then he returned outside and
paid him. Lopez testified defendant was in a hurry and wanted him to leave. Defendant
signed Lopez’s paperwork, but he refused to fill out the service tag and did not want a
receipt. He told Lopez to leave before his wife returned. According to Lopez, defendant
said: “My wife’s out with the girls. I’m supposed to stay home. I didn’t, so that’s why
I’m back home and I need you to leave before she pulls up. She’s going to pull up any
second and you’re going to be busted, so he didn’t take the tag or anything and I left right
after I let him in.”
          Sewell and Willis left the theater. They did not see defendant in the shopping
center. Sewell drove back to the DeYoung home and parked in the garage. Willis went
to the front door to unlock it, but his key would not open the lock.
          Sewell called 911 because she was afraid defendant had done something to the
lock, and she did not want to go into the house. Sewell stayed outside and waited for the
police.
          Willis went into the garage and opened the door into the kitchen. He walked into
the house and started looking for bugs or cameras because it “seemed like everywhere we
was [sic] going or [Sewell] and her friends be going they always said they saw
[defendant].”
          Willis noticed the light was shining under the door to the closet under the stairs.
He walked to the door and heard some noise inside the closet, “like some breathing.”
Willis opened the door and walked into the closet. He had to “squat down” because of
the low ceiling.
          Willis testified he walked to the back of the closet and found defendant stooped
down in the corner. Willis immediately told defendant to leave because Sewell was
calling the police. Defendant left through the front door.

                                               10.
         Sewell testified she was standing in front of the house when she heard Willis call
out for her. Sewell went into the garage, and Willis told her that defendant was in the
house. Sewell was frightened and ran back to the street. She called the police again.
Sewell testified defendant emerged from the front door and ran down the street.
Defendant was wearing the same black clothing that Sewell had seen at the theater.
         At 10:32 p.m., an officer responded to the DeYoung home and spoke to Sewell.
She was scared, shaking, and terrified. Sewell and Willis reported what happened that
night.
         Based on their reports, the officer arranged for another unit to look for defendant
at his residence on Ellery. The officer also contacted Agent Mounts and placed a parole
hold on defendant.
         At 10:57 p.m., two officers arrived at the Ellery home to look for defendant. The
house was dark. They repeatedly knocked and stayed there for 40 minutes, but no one
answered the door or returned to the house. They rescinded the parole hold.8
         As a result of this incident, Sewell arranged to immediately move out of the
DeYoung home because she feared for her life. The next day, she moved her family into
a gated apartment complex in Clovis.
         On the next business day, Sewell went to the parole office and asked to speak to
Agent Mounts’s supervisor. She spoke to Agent Sims and reported that defendant had

         8
         As we will explain, post, defendant admitted at trial that he hired the locksmith
and entered the DeYoung home, but claimed he just wanted to retrieve his mail, and he
was in the closet to look through some DVDs. Defendant also admitted he removed his
electronic monitor before he went to the DeYoung home, and that two friends provided
alibis on his behalf and claimed he was at the Ellery home all night. Agent Hagler, who
was with Agent Mounts that night, testified the police called Mounts and reported the
incident, Mounts checked defendant’s electronic monitor and determined he was at the
Ellery home all night, and Mounts called defendant and advised him not to leave his
house or he would be arrested. Hagler testified he disapproved of Mounts’s call to
defendant and would have advised the police to place him in custody as a precaution.



                                              11.
been hiding in the house, and played the cell phone recording from the January 17, 2008,
incident.
       Sewell testified that shortly after this incident, defendant’s car would be parked at
the same place where she was, and he continued to call her. Sewell did not report every
incident because she was “definitely” not being helped from anyone in law enforcement.
Sewell applied for a permanent restraining order.
The Permanent Restraining Order and Sewell’s New Job
       On February 6, 2008, the court granted Sewell’s motion for a permanent
restraining order against defendant, to stay 100 yards away and not to contact, harass, or
stalk her. The motion was effective until 2013. On February 15, 2008, defendant was
served with the five-year restraining order.
       At some point in February 2008, defendant was taken into custody for a possible
parole violation, based on Sewell’s allegations that he followed her at the shopping center
and he broke into the DeYoung home on January 26, 2008. As we will discuss, post,
defendant and two friends testified at the parole hearing that he was at the Ellery home
that night and never left. Defendant was not found in violation of parole, and he was
released from custody. During this trial, however, defendant admitted he lied at the
parole hearing about his whereabouts, and that he hired the locksmith and entered the
DeYoung home that night.
       Also in February 2008, Sewell was hired as an assistant principal at a high school
in Fresno. Her principal described her as an excellent employee. Shortly after beginning
her new job, however, her coworkers started to receive e-mails and social media posts
that were extremely disparaging to Sewell’s character. Sewell suspected defendant
and/or his family were responsible for these disparaging messages.9 Sewell also believed

       9 A detective later traced one of the disparaging e-mails to an account registered to
the daughter of defendant’s sister, Sharlene Dillard. Dillard and her daughter, Kalea
Turner, (defendant’s sister and niece) testified as defense witnesses, and admitted they


                                               12.
defendant was following her because he was “starting to show up” when she was driving
down the street.
       In March 2008, Sewell spoke to her principal and explained her concerns about
defendant, that she believed he was stalking her, she feared for her life, and he was likely
responsible for the disparaging social media and e-mail messages about her. She gave
copies of the posts to the principal, who passed them along to the school district’s
investigating agency. Defendant’s photograph was distributed to the school’s security
officers, but he was never seen on campus.
The Incident at Epperson’s House
       On March 5, 2008, defendant was discharged from parole, having never been
found in violation from any of Sewell’s complaints about him to the police.
       On the evening of March 8, 2008, Sewell supervised a high school dance. During
the event, she received a telephone call from defendant’s sister, Sharlene Dillard, who
yelled profanities and threatened her.
       After Sewell finished working at the dance, she picked up Tamara Epperson and
they went to the Smokehouse, a restaurant/bar in downtown Fresno. Sewell and
Epperson had recently met. Epperson knew Sewell had been married, but she did not
know defendant.
       Around 2:00 a.m., Sewell and Epperson left the restaurant. As Sewell drove to
Epperson’s home, she saw defendant’s truck parked at the entrance to Epperson’s street.
Defendant was in the truck, and he made eye contact with Sewell. Sewell was afraid
because he was violating the restraining order. She told Epperson to call 911. Defendant
drove away. Sewell followed defendant’s truck.



were responsible for the disparaging e-mail messages and social media posts about
Sewell. They testified defendant did not know or ask them to post the messages, and they
did it on their own because they did not like Sewell.


                                             13.
      Epperson testified Sewell was “freaking out.” Epperson called 911 and repeated
what Sewell told her – that defendant was there, and they were following his truck.
Epperson was frightened.
      Sewell testified she lost defendant in traffic and drove back to Epperson’s house.
Sewell called 911 and reported defendant was following her; she was afraid defendant
was going to kill her, and no one would believe her. The police responded to Epperson’s
house, took a statement from both women, and determined there was a valid restraining
order against defendant.
      Later that evening, two officers went to defendant’s house on Ellery. The house
was dark, no one answered the door, and they left after 10 minutes.
      A few days after this incident, Epperson received a call on her home telephone
from a blocked number. A man said in a threatening voice to “quit playing on the phone,
I'm going to kill you and then the ‘B’ word.” Epperson later received a telephone
message from a woman who identified herself as defendant’s sister, Sharlene, who said
“she was going to kick my ass and to quit messing with her brother.”
Sewell Meets with a Detective
      On March 10, 2008, Sewell went to the police department and met with Detective
Michael Agnew, who reviewed a chronology of her calls to the police about defendant.
Sewell told him about the disparaging social media posts, the threatening voicemail
messages, and the cell phone recording of the January 17, 2008, incident at the DeYoung
home, when defendant sat on her. Detective Agnew testified Sewell was very frustrated
that law enforcement had not helped her or stopped defendant.




                                           14.
The Taser Incident at the Patterson Building
       On March 12, 2008, Sewell met with her attorney at the Patterson Building in
Fresno.10 After the meeting, she walked out of the building and headed to her car.
Defendant suddenly appeared from behind her vehicle. Sewell immediately called 911 to
report another violation of the restraining order. The dispatcher said someone would
respond right away.
       Sewell waited on the street for the police. Defendant walked within an arm’s
length of her. He “leered” at her, gave her an “evil look,” and walked into the building.
About five minutes later, defendant walked out of the building and came within an arm’s
length of Sewell. Sewell again called 911. Sewell testified defendant glared, suddenly
lunged toward her, and mouthed the words, “ ‘I’m going to kill you.’ ”
       Sewell testified she “just lost it” and was terrified. She feared defendant was
going to kill her. Sewell had purchased a Taser to protect herself because of the prior
incidents with defendant. She thought if she shot defendant with the Taser, it would hold
him in place until the police arrived, and she would have proof that he was following her.
       Sewell pulled the Taser out of her purse, fired it at defendant, and missed him.
Defendant ran away, and Sewell followed because she was upset, scared, and despondent.
“It had been months and months of harassment and stalking. I was fed up and tired.”
Sewell testified the police finally arrived as she was chasing defendant. She stopped and
waved her arms to flag them down.
       The officers testified Sewell reported defendant violated the restraining order.
Sewell told the officers she fired the Taser at defendant because she was afraid he was
going to kill her. The officers spoke to defendant, who said he had an appointment with




       10 Kojo Moore, Sewell’s attorney, confirmed Sewell had this appointment with his
office for “a while” before this incident.


                                            15.
his own lawyer in the building. Defendant declared he had placed Sewell under citizen’s
arrest because she tried to shoot him with the Taser.
       Sewell testified the police placed her in the patrol car. Agent Mounts arrived,
even though defendant had been discharged from parole. Sewell remained in the patrol
car, but defendant was laughing and talking with the officers. The officers gave Sewell a
citation and, at defendant’s request, served her with a temporary restraining order to stay
away from him.
Discovery of the Pink Cell Phone under Sewell’s Vehicle
       The day after the incident at the Patterson Building, Sewell spoke with her
principal and advised him about her encounter with defendant. Sewell testified that
defendant had sent someone to the high school, who left a copy of the police citation at
the principal’s office.11 Sewell was extremely fearful for her life.
       Sewell told the principal that she was afraid defendant had placed some type of
tracking device on her Mercedes SUV. The principal encouraged her to take the car to
the Mercedes dealership to have it inspected. She was afraid because defendant’s cousin
worked at the dealership. The principal told Sewell to take the car to another dealership
where he knew people.
       On March 13, 2008, Sewell took her Mercedes to the Saturn dealership for an
inspection. A mechanic looked under the car frame and immediately found a cell phone
under the front left side of Sewell’s car. The cell phone had been attached to the
vehicle’s undercarriage with plastic zipties and a magnet. Sewell realized it was the pink




       11 Webster Wheeler, defendant’s father, testified he went to the high school after
the Patterson Building incident because he wanted to speak to the principal or vice
principal about Sewell’s conduct. They were too busy, so he left documents to advise
them that Sewell chased defendant with the Taser and received a police citation. He
claimed defendant did not tell him to do that.


                                            16.
cell phone that defendant had given to her when they were dating, and took away from
her during the first confrontation at the DeYoung home.12
       Detective Agnew responded to the dealership in response to calls from both
Sewell and the school district’s investigator. He observed the cell phone attached under
the car. (RT 2795-2798, 2806) There were no fingerprints found on it.
The Assault on Sewell at the Apartment Garage
       On March 15, 2008, Sewell, her daughter, and Willis were living in the gated
apartment complex in Clovis. Sewell went to dinner with a friend that evening. Around
6:00 p.m., Mark Kendig, another resident of the apartment complex, noticed an African-
American man standing near the garbage dumpster area. The man was wearing a hooded
sweatshirt. Kendig had never seen him before, but thought he was related to Sewell
because she was the only African-American living in the apartment complex.
       Around 10:00 p.m., Sewell drove back to her apartment, entered the security gate,
and parked in her assigned garage. As she got out of the car, she heard footsteps behind
her. She turned around and defendant was there.
       Sewell testified defendant “slammed” her face and “pounded” her with his fist.
Sewell fell backwards and her head hit the concrete. Sewell was screaming, and she tried
to discharge her pepper spray canister, but it did not work.
       Sewell testified defendant sat on her stomach and kept “pounding” her in the head.
Sewell tried to fight back. Defendant punched her face, ears and head. Sewell kept
screaming and defendant put his fist against her mouth. His fist blocked her breathing for
less than a minute and then he removed it.




       12 At trial, defendant and his daughter claimed the pink cell phone disappeared
from the Ellery home when defendant was taken into custody for the parole violation
hearing, and that Sewell purportedly attached the pink cell phone to her own vehicle.



                                             17.
       Willis and her daughter were in their apartment. They heard Sewell’s screams and
ran to the garage. They saw defendant sitting on top of Sewell, straddling her body and
beating her in the head. Defendant was dressed in black with a black beanie and dark
hoodie. Defendant pinned down Sewell’s legs so she could not kick or resist. Her
daughter testified defendant punched Sewell in the head at least 10 times. Defendant
kept beating her until he heard her daughter’s screams. He looked at her daughter, and
then he got up and ran away toward the gate.
       Willis and Sewell’s daughter initially ran after defendant, but realized that was not
a smart thing to do and returned to the garage. Sewell’s daughter called 911 and reported
that her stepfather (defendant) had just attacked her mother, and beat her with a closed
fist. Her daughter said she saw the beating as it happened, that defendant ran away, and
that her mother was bleeding from the mouth and needed an ambulance. Her daughter
said defendant was wearing black clothes and a black beanie.
       Kendig, Sewell’s neighbor, testified he heard Sewell’s screams and ran outside.
He saw the same man who had been standing by the garage dumpster. The man was
running away, and he was being pursued by another man, later identified as Willis.
Investigation of the Assault
       At 10:36 p.m., Clovis Police Officer Drew Mosher responded to the apartment
complex. Sewell was lying in Willis’s arms. Mosher testified Sewell’s face was “really,
really badly swollen to the extent that her left eye, she couldn’t even open it and her
mouth was bleeding.” Sewell’s daughter was crying and very upset. Willis was
frustrated and angry about what happened.




                                             18.
       Officer Mosher spoke separately to Willis, Sewell, and her daughter. Based on
their statements, he dispatched officers to look for defendant as the suspect. The police
could not find defendant that night.13
       Officer Mosher testified Sewell had a “very unique demeanor, one that I probably
hadn’t seen until then and probably haven’t seen since then in twenty years of emergency
services.”

       “She was crying and frightened but as I spoke with her and she described
       the ongoing problems that she had been having in her pending divorce, I
       got the sense that she was losing hope, that nobody had been able to protect
       her and that this divorce, she wasn’t going to survive the divorce and she
       was kind of coming to grips with that is kind of how I sensed her
       demeanor.”
Sewell’s Injuries
       Sewell was taken to the hospital for treatment of her injuries. She had knots and
bruises all over her face, eyes, lips, and head, and a cut under her tongue. Her left eye
was swollen shut and remained closed for about a week until the swelling went down.
Her right ear was split open and stapled back together.
       Later that night, Officer Mosher arranged for the police chaplain to take Sewell
and her daughter to a hotel for their safety. They later moved to a safe house and stayed
there for several weeks.14




       13Defendant was arrested a few days later. He was in custody for three days and
was then released on bail. Defendant was later returned to custody and remained so
during the trial. At a pretrial bail hearing, defense counsel stated that defendant had
“already finished one year at San Joaquin Law School” when he was arrested in this case.
       14 Based on the assault in the garage, defendant was charged with count IV,
corporal injury to a spouse. The jury was unable to reach a verdict on this charge and a
mistrial was declared. However, defendant was charged and convicted of count V,
misdemeanor disobeying a domestic relations order on the same day.


                                            19.
Defendant Allegedly Calls Sewell’s Cell Phone
       On March 20, 2008, defendant appeared in court and was served with a criminal
protective order to have no contact, directly or indirectly, with Sewell, including by a
telephone call.
       On March 27, 2008, Sewell was being interviewed at the district attorney’s office
about this case by a deputy district attorney and an investigator. During the interview,
Sewell received a call on her personal cell phone and recognized defendant’s number.
Sewell became frantic and did not answer the call.15
       On May 7, 2008, Sewell received a call from an unknown number and did not
answer. The caller left a message: “F’ing idiot.” Sewell testified the caller’s voice
sounded like defendant. This occurred the day before Sewell was scheduled to appear in
court on the school district’s motion to obtain a restraining order to keep defendant away
from the high school.16
Prosecution Expert
       Jim Cook, a former AT&T employee, testified as an expert on wireless cell
phones. Cook explained that it was possible to track someone who had been using the
pink cell phone based on the “family locater service plan” that defendant had for that cell
phone. A monthly message would have been on the bill and sent to the cell phone,
advising the user that it was part of a plan which permitting tracking. The cell phone had
to stay on to track the device, and the battery would have lasted about one week without
being recharged.
       Cook also examined the records for defendant’s personal cell phone. Based on
calling signals to cell phone towers, whoever was using defendant’s personal cell phone

       15
        Based on this incident, defendant was charged with count VI, contempt of court
on March 27, 2008. The jury was unable to reach a verdict and a mistrial was declared.
       16Based on this incident, defendant was charged with count VII, contempt of
court on May 7, 2008, and found not guilty.


                                            20.
was in Sewell’s vicinity on January 26 (the movie theater incident), March 7–8 (the
incident near Epperson’s house), and March 15, 2008 (the assault at the apartment
complex).
       Cook confirmed that a call was placed from defendant’s cell phone to Sewell’s
personal cell phone on March 27, 2008 (when she met with the district attorney and the
investigator), and it lasted two seconds.
                                 DEFENSE EVIDENCE
Defendant’s Trial Testimony
       Defendant denied that he stalked, harassed, or assaulted Sewell, or posted any
disparaging e-mails or comments on social media about her. Defendant testified Sewell
subjected him to emotional and physical abuse, and he became afraid of her. Sewell
demanded that he spend large amounts of money to buy and furnish the Ellery home.
She was very secretive and controlling, and she followed him around town. Sewell
slapped and hit him on several occasions, and once threatened to harm him if he fooled
around. Sewell became paranoid and accused defendant and his friends of organizing
“this big conspiracy” against her, and thought someone was out to get her.
       Defendant testified Sewell repeatedly threatened to ruin him and report false
parole violations unless he did what she wanted. Defendant claimed Sewell called his
business clients and tried to destroy his relationships with them, that Sewell’s daughter
tampered with his computer to damage his business, and that someone tampered with his
cell phone so that it made calls without him using it. Defendant claimed that after an
argument with Sewell, her daughter threatened: “[Y]ou are going to get yours.”
       Defendant testified Sewell never worked for him, and she never loaned any money
for his businesses. When confronted with Sewell’s cancelled checks for several
thousands of dollars, defendant explained that Sewell paid for various expensive
improvements she demanded for the Ellery home.



                                            21.
       As their relationship deteriorated, defendant realized he made a mistake to marry
her. Sewell said she would return to Fontana only if defendant gave her $200,000.
Sewell also demanded repayment for the improvements she financed at the Ellery home.
       Defendant testified Alfred Willis, Sewell’s uncle, worked for one of his
construction companies, but defendant fired him for inappropriate conduct at work.
Sewell was angry about that. Nevertheless, defendant claimed Willis regularly kept him
informed about Sewell’s actions, and revealed that Sewell was interfering with his
business clients and trying to hurt him.
       Defendant testified he never followed Sewell around, but she always seemed to be
at the same place where he was. She left threatening and harassing messages on his
voicemail. Defendant received telephone calls from unknown men who threatened to
beat him. He felt he was being set up. Defendant admitted that after he was discharged
from parole, he blocked his cell phone number and frequently called Sewell.
       Defendant testified he regularly told Agent Mounts, his parole officer, about
Sewell’s alleged erratic and controlling behavior, her threats, and her physical abuse.
       Defendant testified about the following specific incidents.
       The DeYoung home
       Defendant testified he already owned the DeYoung home when he became
involved with Sewell. After they decided to marry, Sewell demanded that he buy a larger
house, and he purchased the Ellery home. Defendant moved into the Ellery home in
January 2007, before he married Sewell. Sewell and her daughter moved into the Ellery
home with him after they moved to Fresno.
       Defendant testified that when he decided to separate from Sewell, he hired a U-
Haul truck and told Sewell she was moving out of the Ellery home. Sewell “begged” to
stay at the DeYoung home, and he agreed. Defendant testified Sewell “never paid a
dime” of rent, and that Sewell, her daughter, and her uncle lived at the DeYoung home
“rent free.”

                                            22.
       Defendant testified he paid the mortgage on the DeYoung home. He described the
DeYoung home as “the rental where she stayed.” Defendant testified he previously had
“several different renters” who lived in the DeYoung home, and mentioned Richard
Streets (presumably a tenant) and “some of my workers who use to stay in the house”
previous to Sewell. Defendant testified that when Sewell moved into the DeYoung
home, she “paid the PG&E at first. At first it was in Richard Streets’ name and then
transferred out to her name. She paid the PG&E but as far as anything else I paid.”
       Defendant testified he rekeyed the DeYoung locks when Sewell and her family
moved in, and he kept one key and a garage door opener.
       The garage incident at the DeYoung home
       Defendant admitted he approached defendant in the garage of the DeYoung home
on January 17, 2008, and they argued about various things. He denied Sewell’s version
of the incident. He left the garage but returned because he dropped his wallet. He went
into the house and they continued to argue. Defendant admitted he took the pink cell
phone away from Sewell that day, but denied that he threatened, hit, or sat on top of her.
Defendant claimed Sewell became very physical and tried to push him around.
       Defendant testified he immediately called Agent Mounts after he left the DeYoung
home and told him about the argument. Defendant was told to stay away from the
DeYoung home.
       Defendant’s admissions about the burglary of the DeYoung home
       Defendant testified he did not know that a temporary restraining order was issued
against him, but he knew that he had been told to stay away from the DeYoung home.
Nevertheless, he decided to go to the DeYoung home on January 26, 2008, to pick up his
business mail. Defendant testified that Willis, who he had just fired, warned him that
Sewell intercepted his business mail and interfered with his clients. Defendant claimed
he had never changed his business mailing address when he moved from the DeYoung to
the Ellery home the prior year.

                                            23.
         Defendant testified that he arranged for Willis to take Sewell to a movie that night.
Defendant planned to use his key to get into the DeYoung house, pick up his mail, and
leave.
         Defendant further testified that he was still required to wear an electronic monitor
as a condition of his parole. Defendant admitted he removed the monitor from his ankle
and left it at his Ellery home because he did not want his parole officer to know he was at
the DeYoung home.17
         Defendant testified that when he arrived at the DeYoung home, he discovered
Sewell had changed the locks, his key no longer worked, and he could not get in. He
drove to the movie theater and tried to find Willis so he could get the new key, but Sewell
saw him. Defendant testified he did not talk to or follow Sewell, and he went back to his
car.
         Defendant drove back to the DeYoung home and called a locksmith so he could
get into the house. He also called Sewell’s cell phone several times to make sure it went
to voicemail and she was still in the theater.
         Defendant testified that once the locksmith opened the front door at the DeYoung
home, he went inside and retrieved his mail. Defendant decided to collect some DVDs
which were stored in the closet under the stairs. He was still in the closet when Willis
returned to the house and warned him that Sewell was outside. Willis told defendant to
leave through the front door. Defendant walked out the front door. He saw Sewell and
ran down the street. He did not talk to Sewell. (RT 3179-3182, 3344-3346, 3383)

         17As we will discuss, post, Agent Mounts testified for the defense and admitted
that defendant appeared in his office on January 22, 2008, said the electronic monitor was
too tight, and asked if Mounts could loosen it so he could wear boots. Mounts did so.
Agent Hagler testified defendant arrived at the parole office a few days after the January
26, 2008, incident at the DeYoung home, and Hagler checked his electronic monitor.
Hagler determined it was “extremely loose,” it “could have easily been slipped off,” and
it was “the loosest GPS ankle monitor I had ever seen.”


                                              24.
       Parole violation hearing
       Defendant testified Agent Mounts called him later that night about whether he had
been at the DeYoung home. Defendant lied to Mounts and falsely said he never went to
the DeYoung home, and he had been at the Ellery home all night with two friends. He
lied because he knew he should not have been there. He just wanted to get his mail and
“felt this was my house.”
       Defendant testified that on January 28, 2008, two days after he went into the
DeYoung home, he put his electronic monitor back on his leg and went to the parole
office. He met with another agent, who placed a tighter strap on his electronic monitor.
He was later taken into custody and held in prison for a possible parole violation based on
his entry into the DeYoung home.
       On February 22, 2008, a parole violation hearing was held about the incident at the
DeYoung home. At that hearing, Sewell testified she saw defendant outside the theater,
he changed the locks to the DeYoung home, he was hiding in the closet, and he ran out
the front door; Willis testified he found defendant hiding in the closet. Defendant falsely
testified under oath that he spent the evening at his Ellery home with his two friends, they
watched movies, and he injured his foot and could not run or walk. Defendant’s two
friends offered similar testimony. Defendant was found not to have violated parole and
released.
       The incident at Epperson’s house
       Defendant testified that on March 7, 2008, an unknown man called him and
claimed defendant’s sister was harassing Sewell, and that man would do something to
defendant if his sister did not stop. The man demanded they meet at a certain address and
defendant agreed. Defendant drove to the area at night but no one was there.
       When he could not find the unknown man, defendant testified he went to the
Smokehouse, the restaurant/bar where Sewell and Epperson also went that night.
Defendant claimed he did not know Sewell was there, and he never saw her. Defendant

                                            25.
testified that later that night, he left the Smokehouse and drove back to the area where he
was supposed to meet the unknown man (which was apparently near Epperson’s house).
Defendant testified he suddenly saw Sewell’s car and believed she was following him.
Defendant thought he had been set up.
       Defendant testified that on March 8, 2008, Sewell repeatedly called and threatened
to put him back in prison. Defendant contacted the district attorney’s office on March 11,
2008, and reported Sewell was stalking him, and he was afraid of her.
       Defendant admitted that on or about March 16, 2008, he called Epperson twice
even though he did not personally know her, and he blocked his number when he made
the call. He believed Epperson helped Sewell interfere with his cell phone.
       The incident at the Patterson Building
       Defendant testified that on March 12, 2008, he drove to the Patterson Building in
downtown Fresno to meet with his divorce attorney, David Hollingsworth.18 As he
walked from his car, he saw Sewell outside the building. They stared at each other, and
he went into the building. Defendant denied that he threatened or spoke to Sewell.
       Defendant testified he left the building and headed back to his car. Sewell
screamed that he wanted to kill her. Sewell ran after him, pulled out the Taser and fired
it. The darts missed and Sewell rushed toward him. Defendant tried to stay away, but
she chased him. The police arrived and he placed Sewell under a citizen’s arrest.
Defendant called Agent Mounts for help even though he had been discharged from
parole, and Mounts arrived at the scene and spoke to the officers.
       The pink cell phone
       Defendant testified he gave Sewell the pink cell phone when they were dating to
reduce her long distance expenses. He denied that he listened to her voicemails when she

       18
        Brit Warren, an employee in Hollingsworth’s office, testified defendant had an
appointment that day, and it had been on the calendar “for a little while.”



                                            26.
used it. He took the pink cell phone away from her during the January 17, 2008, incident
at the DeYoung home.
       Defendant testified he never used the cell phone to track or follow Sewell, and he
never placed it under her car.19
       The assault in the apartment complex
       Defendant testified he did not assault Sewell in the apartment complex’s garage on
March 15, 2008. Defendant spent the day running errands and admitted he may have
been in the vicinity of the apartment complex at one point, but he did not hide by the
garbage dumpster or wait for her.
       Defendant testified the police arrived at his house the next day and asked if he had
seen her. Defendant said no, and he refused to speak with the police without his attorney.
       Defendant testified he did not intentionally call Sewell on March 27, 2008, but he
may have inadvertently hit her number on his cell phone.
Agent Mounts
       Parole Agent Andrew Mounts testified for the defense and said defendant
performed well on parole and did not have any violations. Mounts testified that as
defendant and Sewell were breaking up, defendant reported Sewell hit him and
threatened to have his parole revoked unless he paid her $200,000. Defendant also said
they reached an agreement that he would stay in the Ellery home, and she would live in
the DeYoung home.



       19 Keisha Turner, defendant’s niece, testified she lived in the Ellery home after
defendant was taken into custody for the parole violation. During that time, she
discovered several things had been taken from the home, including items which had
belonged to Sewell, and she believed Sewell had gained entry and taken them. She told
defendant, but she did not report this incident to the police. The defense relied on this
incident to infer that Sewell took the pink cell phone from the Ellery home, and she had
custody of it when it was discovered under her car.


                                            27.
       Agent Mounts testified defendant called him immediately after the January 17,
2008, incident at the DeYoung home. Defendant reported they argued because he wanted
a divorce, and Sewell prevented him from leaving the house. Sewell later spoke to
Mounts about the same incident and claimed defendant regularly beat her. Sewell played
the voicemail recording for Mounts, but he did not think it was dispositive. Mounts did
not see any bruises on her. Mounts asked Sewell why she did not previously report these
beatings. Sewell said she did not want to get defendant in trouble.
       Agent Mounts testified he did not believe Sewell was credible when she reported
these incidents because of how she behaved about money issues, based on his
conversations with both of them. Mounts never took defendant into custody after
Sewell’s domestic violence reports because there was no corroborating evidence of
Sewell’s claims.
       Agent Mounts admitted he told the investigating officers in this case that Sewell
was not credible, she did not want to file charges, and she just wanted money from
defendant.
       Agent Mounts testified that on January 22, 2008, defendant appeared at the parole
office and said the electronic monitor around his leg was too tight. He asked if Mounts
could loosen it so he could wear boots, and Mounts agreed.
       As for the January 26, 2008, burglary at the DeYoung home, Agent Mounts
testified that a police officer called and advised him about the incident, and said they
were sending units to defendant’s Ellery home. Mounts called defendant and asked what
happened. Defendant said he was at the Ellery home, two friends would support his
story, and he hurt his foot and could not run. Mounts checked defendant’s electronic
monitor, and it showed he was at the Ellery home that night. Mounts later interviewed
defendant’s two friends, and they confirmed defendant was with them. During that
investigation, Mounts told the police that Sewell had lied to him and had a credibility
problem.

                                             28.
       Mounts knew that on January 28, 2008, defendant arrived at the parole office to
have his electronic monitor checked. Mounts was not at the office that day. Mounts
admitted two other officers determined it was very loose and could be easily removed.
       Mounts testified he was at the parole revocation hearing when defendant testified
under oath that he was not at the DeYoung home on January 26, 2008.
       In the course of his trial testimony, Agent Mounts admitted he did not know that
defendant had just testified that he lied at the parole hearing – that he had removed his
electronic monitor, he went to the theater and Sewell saw him, he hired the locksmith to
get into the DeYoung home, and he was inside the house when Sewell returned.
       Mounts testified defendant called him during the Taser incident at the Patterson
Building. He asked Mounts to respond to the scene and tell the police that he was not on
parole. Mounts did so even though defendant was no longer his responsibility. Mounts
admitted he appeared at defendant’s arraignment in this case and told the judge that he
was a good parolee.
Other Defense Witnesses
       Ray Culberson testified that in 2001, he dated Sewell for six months, they were
engaged for one day, and they broke up. He did not have any contact with her after that.
He believed she was not very truthful.
       Roger Wilson, defendant’s friend, testified he saw defendant and Sewell argue
when they lived together. Wilson heard Sewell’s daughter tell defendant that she was
going to get him. After they separated, he heard Sewell say that she was going to bring
defendant down. Wilson was impeached by his prior statements to an investigator, that
he did not have any information about this case and had limited knowledge about
defendant’s relationship with Sewell.
       Kenneth Wheeler, defendant’s brother, testified he felt Sewell tried to separate
defendant from his family, and she was not a truthful person. Defendant told his brother
Sewell had slapped him during an argument.

                                            29.
       Keisha Turner, defendant’s niece, testified she lived with defendant and Sewell in
the Ellery home. Sewell often argued with defendant, and Sewell threatened to report
defendant to his parole officer. Turner testified that when they separated, defendant
“made her go stay in the other house,” but Sewell repeatedly returned to the Ellery home.
       Kalea Turner, another niece, testified that in November 2007, she heard Sewell
demand $250,000 from defendant, or she would ruin his life and send him back to prison.
Turner was not present during this conversation, but testified that defendant accidentally
hit speed dial on his cell phone and called her mother while he was arguing with Sewell.
Turner and her mother answered the call, and they heard Sewell arguing and making
demands.
       Sharlene Dillard, defendant’s sister and Kalea’s mother, testified Sewell once told
her that she would bring down defendant and take his money and life. Dillard also
listened to the telephone call when defendant accidentally hit speed dial as he argued with
Sewell, and she heard Sewell demand $250,000 or she would ruin his life. She also
thought she heard the sound of someone being slapped. Sewell repeatedly made
harassing telephone calls to her and threatened to get defendant. Dillard called Sewell
and confronted her, and Sewell admitted she had interfered with defendant’s business
clients.
       Thomas Blackburn testified as a defense expert and countered Jim Cook’s analysis
of defendant’s cell phone records, and whether he was in certain locations. He also
testified that if a cell phone was placed under a vehicle, the battery would have lasted
only a few hours to two days without being charged.
                                REBUTTAL EVIDENCE
       Richard Streets, a correctional officer at juvenile hall, testified defendant had been
his friend since high school, and Streets had lived at the DeYoung home for a few
months. Streets had been one of defendant’s alibi witnesses at the parole revocation
hearing about defendant’s burglary of the DeYoung home on January 26, 2008. At trial,

                                             30.
Streets repeated the story he told at the parole hearing: He went to the Ellery home
around 10:00 p.m.; defendant and Ira Caples were there; defendant had injured his foot
and walked with a limp; they watched movies; and defendant never left.
       In the course of Streets’s trial testimony, the prosecutor advised him that
defendant had just testified that he left the Ellery home that night, he was not walking
with a limp, he went to the DeYoung home, and he had lied at the parole hearing. The
prosecutor asked Streets if defendant wanted him to lie about the burglary alibi. Streets
said no, he did not remember what happened that night, and he may not have looked at
his watch to know what time he was at the Ellery home.
       John Hagler, a parole officer, testified that on the evening of January 26, 2008, he
was on vacation at the coast with several friends, including Agent Mounts. Mounts
received a telephone call from the police department because they were looking for
defendant because of the DeYoung burglary. Mounts used Hagler’s computer to check
defendant’s electronic monitor, and determined he was at the Ellery home. Hagler
testified Mounts called defendant, and told him not to go outside his house or he would
be arrested.
       Agent Hagler testified he would not have given such advice to a parolee, and he
later discussed Agent Mounts’s conduct with other agents. Hagler believed Mounts
should have arranged for defendant to be taken into custody as a safety precaution
because of the burglary investigation.
       Agent Hagler testified defendant reported to the parole office shortly after this
incident. Agent Mounts was not present. Hagler checked his electronic monitor and
determined it was “extremely loose,” it “could have easily been slipped off,” and it was
“the loosest GPS ankle monitor I had ever seen.” The officers tightened the strap so it
could not be removed. Hagler was not called to testify at defendant’s parole revocation
hearing.



                                            31.
The Charges, Verdicts, and Sentence
       Defendant was charged with count I, false imprisonment by violence, based on his
entry into the garage and interior of the DeYoung home, and preventing Sewell from
leaving, on January 17, 2008 (Pen. Code, § 236); count II, stalking from January 17,
through May 7, 2008 (§ 646.9, subd. (a)); count III, first degree residential burglary,
when he called the locksmith and entered the DeYoung home on January 26, 2008
(§§ 459 & 460, subd. (a)); count IV, corporal injury to a spouse/cohabitant, based on the
assault on Sewell in the apartment’s garage on March 15, 2008 (§ 273.5, subd. (a)); count
V, misdemeanor disobeying a domestic relationship court order on March 15, 2008,
based on his presence in the apartment’s garage in violation of the restraining order
(§ 273.6, subd. (a)); and counts VI and VIII, misdemeanor contempt of court on March
27 and May 7, 2008, based on Sewell’s testimony that he called her cell phone.
       Defendant’s first jury trial ended in a mistrial. After his second jury trial,
defendant was convicted of count II, stalking; count III, first degree burglary, and count
IV, misdemeanor disobeying the court order on March 15, 2008. Defendant was found
not guilty of count I, false imprisonment on January 15, 2008; and count VII, contempt of
court on May 7, 2008.
       The jury was unable to reach verdicts on count IV, infliction of corporal injury,
based on the assault in the garage on March 15, 2008, and count VI, contempt of court on
March 27, 2008. The court declared a mistrial and later granted the prosecution’s motion
to dismiss those counts.
       The court found true all the special allegations: Six prior strike convictions and
six prior serious felony enhancements.
       Defendant was sentenced to consecutive third-strike terms of 25 years to life for
count II, stalking, and count III, first degree burglary; plus five years for the prior serious
felony enhancement.



                                              32.
                                       DISCUSSION
   I. Defendant’s conviction for first degree burglary
       In count III, defendant was charged and convicted of first degree burglary of the
DeYoung home on January 26, 2008, when he hired the locksmith, entered the DeYoung
home while Sewell was at the movies, and was hiding in the closet when she returned.
       On appeal, defendant contends the evidence was insufficient to support his
burglary conviction because he owned the DeYoung home, that he had an unconditional
possessory right to enter it, and that he did not violate the temporary restraining order
because he knew Sewell was at the theater when he went into the house.
       A. Substantial evidence
       “In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.)
       “The federal standard of review is to the same effect: Under principles of federal
due process, review for sufficiency of evidence entails not the determination whether the
reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable
doubt, but, instead, whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
       “The standard of appellate review is the same in cases in which the People rely
primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence [citations], it is the

                                             33.
jury, not the appellate court which must be convinced of the defendant’s guilt beyond a
reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings,
the opinion of the reviewing court that the circumstances might also be reasonably
reconciled with a contrary finding does not warrant a reversal of the judgment.” ’
[Citations.] ‘Circumstantial evidence may be sufficient to connect a defendant with the
crime and to prove [her] guilt beyond a reasonable doubt.’ [Citation.]” (People v. Bean
(1988) 46 Cal.3d 919, 932–933; People v. Stanley (1995) 10 Cal.4th 764, 792–793.)
       B. Burglary
       “At common law, burglary was defined as ‘ “the breaking and entering of the
dwelling of another in the nighttime with intent to commit a felony.” ’ [Citation.]
Currently, burglary is defined as the entry into any building with the intent to commit a
grand or petty larceny or any felony. [Citation.] Although the Penal Code has
substantially changed some of the common law elements of burglary, our Supreme Court
has held that ‘two important aspects of that crime’ remain: the entry must invade a
possessory right in the building and it must be committed by one who has no right to be
in the building. [Citation.]” (People v. Smith (2006) 142 Cal.App.4th 923, 929–930
(Smith).)
       “Because the crime of burglary requires the invasion of a possessory right in a
building, one cannot be found guilty of burglarizing one’s own residence. [Citations.]”
(Smith, supra, 142 Cal.App.4th at p. 930.) “[T]he reason why a person cannot be charged
with burglarizing his own home is because he has an absolute right to enter his own
home. [Citation.]” (Id. at p. 932.)
       C. Sears and Gauze
       Defendant argues he could not be convicted of burglarizing the DeYoung home
because he owned it. However, the resolution of this issue is dependent on more than
simply the perpetrator’s ownership of the residence. The applicable principles have been
summarized as follows: “[S]ince burglary is a breach of the occupant’s possessory rights,

                                            34.
a person who enters a structure enumerated in section 459 with the intent to commit a
felony is guilty of burglary except when he or she (1) has an unconditional possessory
right to enter as the occupant of that structure or (2) is invited in by the occupant who
knows of and endorses the felonious intent.” (People v. Salemme (1992) 2 Cal.App.4th
775, 781, first italics in original, second italics added.)
       The possessory right protected by section 459 is the “right to exert control over
property to the exclusion of others” or, stated differently, the “right to enter as the
occupant of that structure.” (People v. Salemme, supra, 2 Cal.App.4th at pp. 779, 781.)
The “primary purpose” of the burglary law “is to protect a possessory right in property.
Thus, if there is an invasion of the occupant’s possessory rights, the entry constitutes
burglary regardless of whether actual or potential danger exists.” (Id. at p. 781.)
       These principles were developed in a series of cases beginning with People v.
Sears (1965) 62 Cal.2d 737 (Sears)20, where the defendant and his wife had lived
together in the family residence. They separated, the defendant moved to a hotel, and his
wife and stepchildren remained in the house. Three weeks later, the defendant entered
the house through an unlocked door, assaulted his wife with a pipe he had concealed
under his shirt, and killed his stepdaughter. The defendant was convicted of first degree
felony murder based on burglary. (Id. at pp. 740–741.)
       Sears reversed the defendant’s conviction based on the erroneous admission of the
defendant’s postarrest statements, and remanded for a new trial. For guidance on retrial,
however, the court held the jury was properly instructed on felony murder based on the
defendant’s commission of a burglary when he entered the family residence. (Sears,
supra, 62 Cal.2d at pp. 740, 746.)



       20 Sears was overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478,
510, fn. 17.



                                               35.
              “We reject defendant’s contention that the court should not have
       given the burglary instruction because defendant, as [the wife’s] husband,
       had a right to enter the family home. One who enters a room or building
       with the intent to commit a felony is guilty of burglary even though
       permission to enter has been extended to him personally or as a member of
       the public. [Citation.] The entry need not constitute a trespass. [Citations.]
       Moreover, since defendant had moved out of the family home three weeks
       prior to the crime, he could claim no right to enter the residence of another
       without permission. Even if we assume that defendant could properly enter
       the house for a lawful purpose [citation], such an entry still constitutes
       burglary if accomplished with the intent to commit a felonious assault
       within it.” (Id. at p. 746, italics added.)
       The seminal case in this area is People v. Gauze (1975) 15 Cal.3d 709 (Gauze),
which distinguished Sears in a situation where defendant shared an apartment with two
roommates. The defendant argued with one roommate while they were at a friend’s
house. The roommate returned to their apartment. The defendant borrowed a shotgun
from a neighbor, entered the apartment, and shot and wounded the roommate. The
defendant was convicted of burglary and assault with a deadly weapon. (Id. at p. 711.)
The California Supreme Court reversed his burglary conviction and held the defendant
had the absolute possessory right to enter the apartment as a cotenant, and he could not be
convicted of burglarizing his own residence. (Id. at pp. 714, 717.)

       “[Defendant’s] entry into the apartment, even for a felonious purpose,
       invaded no possessory right of habitation; only the entry of an intruder
       could have done so. More importantly, defendant had an absolute right to
       enter the apartment. This right, unlike that of the store thief …, did not
       derive from an implied invitation to the public to enter for legal purposes.
       It was a personal right that could not be conditioned on the consent of
       defendant’s roommates. Defendant could not be ‘refused admission at the
       threshold’ of his apartment, or be ‘ejected from the premises after the entry
       was accomplished.’ [Citation.] He could not, accordingly, commit a
       burglary in his own home.” (Id. at p. 714, italics added.)
       Gauze clarified that it was not overruling Sears and distinguished that case
because the husband’s right of entry in Sears “was at best conditional” and his “entry for
anything but a legal purpose was a breach of his wife’s possessory rights.” (Gauze,



                                            36.
supra, 15 Cal.3d at p. 715.) In contrast, the defendant in Gauze had an unconditional
right to enter the apartment where he was living. (Ibid.)

               “In contrast to the usual burglary situation, no danger arises from the
       mere entry of a person into his own home, no matter what his intent is. He
       may cause a great deal of mischief once inside. But no emotional distress
       is suffered, no panic is engendered, and no violence necessarily erupts
       merely because he walks into his house. To impose sanctions for burglary
       would in effect punish him twice for the crime he committed while in the
       house. In such circumstances it serves no purpose to apply section 459.”
       (Id. at p. 716, fn. omitted.)
       The principles set forth in Gauze and Sears have been reaffirmed through the
years: “[O]ne may be convicted of burglary even if he enters with consent, provided he
does not have an unconditional possessory right to enter.” (People v. Pendleton (1979)
25 Cal.3d 371, 382.) These principles have been applied to uphold burglary convictions
against estranged spouses who enter the former family residence in situations which
undermine perpetrators’ claim of consent and/or an “unconditional possessory right to
enter.” (Ibid.; see, e.g., People v. Davenport (1990) 219 Cal.App.3d 885, 890–892;
People v. Smith, supra, 142 Cal.App.4th at pp. 931–932; People v. Gill (2008) 159
Cal.App.4th 149, 161 (Gill); People v. Ulloa (2009) 180 Cal.App.4th 601, 607–609.)

       D. Analysis
       There is clearly substantial evidence to support defendant’s conviction for the
burglary of the DeYoung home on January 26, 2008, because (1) he did not have an
unconditional possessory right, and (2) he was not invited to enter by an occupant who
knew and endorsed his felonious intent. (People v. Salemme, supra, 2 Cal.App.4th at
p. 781.)
       First, defendant’s ownership of the residence is not dispositive of whether he had
an unconditional possessory right to enter the house. In contrast to Gauze, there is no
evidence he had such a right on January 26, 2008. There is no evidence that defendant
lived at the DeYoung home with Sewell during or after their marriage, that it was the


                                             37.
family residence prior to their separation, or that he lived in the DeYoung home after he
moved to the Ellery home. Defendant’s own testimony supports the contrary finding –
defendant testified he moved to the Ellery home in January 2007, he treated the DeYoung
home as a rental property, and he identified some of his tenants. Sewell joined him in the
Ellery home after she moved to Fresno on August 1, 2007, and Sewell moved to the
DeYoung home when she left defendant on September 1, 2007.
       Defendant contends he still had an unconditional possessory right to enter the
DeYoung home because he spent time with Sewell “at both houses” after their separation,
between September 2007 to mid-January 2008, as they tried to work out their marital
problems. (AOB 20) The record refutes this argument. The family never lived in the
DeYoung home prior to the separation, and defendant’s limited visits to the DeYoung
home after their separation were so contentious that Sewell changed the locks and
obtained the restraining order.
       Defendant asserts he did not lease the DeYoung home to anyone, he “simply had
his wife living in that house,” she did not pay rent, and he never gave up his
unconditional right to enter the house. Again, this argument is contrary to the evidence
of their separation. Both Sewell and defendant testified that tenants lived in the
DeYoung home after defendant moved into the Ellery home. Sewell testified she decided
to leave defendant and asked to live in the DeYoung home. Sewell testified defendant
owed her a large amount of money, they agreed that her rent for the DeYoung home
would be deducted from his debt, and she moved into the DeYoung home on September
1, 2007.
       Defendant testified to the contrary and claimed he ordered Sewell to move out of
the Ellery home and return to Fontana, she begged him to stay in Fresno, and he allowed
her to live in the DeYoung home rent free. However, Sewell’s testimony provides
substantial evidence that he agreed she could live in the DeYoung home as a tenant and



                                            38.
her rent would be deducted from the large debt that defendant owed her as a result of her
loans to him.
       Defendant’s ownership of the DeYoung home was similar to the landlord/tenant
situation which was found dispositive in Smith, where the defendant was convicted of
burglary, kidnapping and attempted murder when he broke into the former family
residence and attacked his former wife. Prior to the burglary, the victim had obtained a
restraining order against him, and the family court issued an order which removed the
defendant from the house and granted sole possession to the victim. (Smith, supra, 142
Cal.App.4th at p. 929.) In rejecting defendant’s claim of an unconditional possessory
right to enter, Smith drew an analogy with landlord/tenant cases:

       “When a landlord leases property to a tenant, the landlord retains a
       qualified possessory interest in the property. The landlord’s possession of
       the leased property is qualified because the possessory interest in the
       property is vested in the tenant during the lease term. Thus, if the landlord
       were to break into the tenant’s apartment and commit a felony, the landlord
       could be charged with, and convicted of, committing a burglary.
       Regardless of the fact that the landlord has a possessory interest in the
       apartment by virtue of the fact that he or she owns the property, such
       interest is qualified because he does not possess the right to enter as the
       occupant during the lease period.

               “In this case, [defendant’s wife] was awarded sole possession of the
       family home and she was granted a temporary restraining order … against
       defendant because of his acts of violence towards her. Thus, although
       defendant had a possessory interest in the family home, he did not possess
       the right to enter as an occupant when [she] was present. [His wife], on the
       other hand, retained the right to enter as an occupant at any time. Given the
       distinction, defendant could be charged with burglary of the family home
       just like a landlord could be charged with burglary of the tenant’s
       property.” (Smith, supra, 142 Cal.App.4th at p. 932, italics added.)
       As the owner and landlord of the DeYoung home, defendant retained a possessory
interest when he rented the DeYoung home to various tenants, but it was a “qualified”
possessory interest since that interest was vested in the tenant. (Smith, supra, 142
Cal.App.4th at p. 932; see also Avalon Pacific-Santa Ana, L.P. v. HD Supply Repair &


                                            39.
Remodel, LLC (2011) 192 Cal.App.4th 1183, 1190–1191 [a lessee has exclusive
possession of the premises against all the world, including the owner/lessor, who has a
future reversionary interest and retains fee title].) Under these circumstances, defendant
could be convicted of burglary “just like a landlord could be charged with burglary of the
tenant’s property.” (Smith, supra, 142 Cal.App.4th at p. 932.)
       Even if Sewell lived in the DeYoung house “rent free,” as claimed by defendant,
he still did not have an unconditional possessory right to enter on January 26, 2008.
After Sewell left defendant and moved into the DeYoung home, defendant was aware
that “clearly … circumstances had changed.” (Gill, supra, 159 Cal.App.4th at p. 161.) A
temporary restraining order had been issued against him.21 Moreover, defendant
admitted his parole agent had ordered him to stay away from the DeYoung home after his
confrontation at the DeYoung house with Sewell on January 17, 2008. Most importantly,
defendant realized that Sewell had changed the locks to the house. Given these
circumstances, defendant was clearly aware that circumstances had changed, and his
conduct on January 26, 2008, demonstrated that he “understood he did not have the right
to enter the residence at will.” (Gill, supra, 159 Cal.App.4th at p. 161.)
       Defendant asserts that, contrary to the situation in Smith, the restraining order did
not “take away” his unconditional possessory right to enter because he knew Sewell was
at the movie theater that night, and the court never granted sole possession of the house to
Sewell. However, the temporary restraining order ordered defendant not to “harass,
attack, strike, threaten, assault, sexually or otherwise, hit, follow, stalk, molest, destroy
personal property, disturb the peace, keep under surveillance or block movements” of
Sewell, her daughter, and her uncle; and that he had to stay at least 100 yards away from


       21While defendant claimed he did not know about the order, the prosecution
introduced evidence that the order was served on a man at the Ellery home who identified
himself as defendant.



                                              40.
them and their cars. (Italics added.) Defendant had already violated the restraining order
when he appeared outside the movie theater and followed defendant around the shopping
center. He rushed the locksmith and seemed to know that Sewell was about to return.
Even if he knew Sewell was not home when he entered, he had already destroyed
“personal property” when he had the locksmith open the front door, which apparently
damaged the lock and made it difficult for Willis to unlock it upon their return.
       Clearly, defendant's conduct on January 26, 2008, demonstrated his understanding
that “he did not have the right to enter the residence at will.” (Gill, supra, 159
Cal.App.4th at p. 161.) Despite the restraining order and his parole agent’s warnings,
defendant carefully arranged for an alibi by convincing his parole agent to loosen his
electronic monitor a few days earlier, and he admittedly left it at the Ellery home so it
would appear he had never left his own house. He followed Sewell until she went into
the movie theater, drove to the DeYoung home, and found out Sewell had changed the
locks. Nevertheless, he pressed ahead and called the locksmith, entered the house, and
waited in the closet under the stairs for Sewell to return. (See, e.g., People v. Ulloa,
supra, 180 Cal.App.4th at pp. 610–611.)
       There is also no evidence defendant was invited to enter the DeYoung home by an
“occupant who knows of and endorses the felonious intent.” (People v. Salemme, supra,
2 Cal.App.4th at p. 781.) Sewell, her daughter, and her uncle lived in the house, and they
were protected by the restraining order. Defendant claimed he had just fired Willis but
that Willis told him that Sewell had intercepted his business mail, and Willis agreed to
take Sewell to the movies so defendant could get into the house and get his mail back.
       Willis testified to a different version of events: He did not arrange for defendant
to get into the house that night; they could not open the front door when they returned
home; he managed to get into the house through the garage; he notice the light in the
closet; he heard breathing inside the closet; he opened the closet door; he walked to the
farthest corner; and he was surprised when he found defendant stooped in the back.

                                             41.
Willis never testified that he kept defendant informed of Sewell’s activities or arranged
for defendant to get into the house that night. There was thus substantial evidence to
refute any claim that defendant entered with the consent of one of the residents.
       We conclude there is overwhelming evidence to support defendant’s conviction
for burglary. While defendant owned the DeYoung home, he never lived there with
Sewell. It was not the family residence. He treated it as a rental property before they
separated; he agreed Sewell could live there after the separation; and the rental fee would
be deducted from the large amount of money that he owed her. In addition, defendant
knew about the restraining order and that Sewell and changed the locks, and Willis
refuted defendant’s claim that he consented to defendant’s entry into the house that night.
   II. Burglary Instructions
       Defendant raises another challenge to his burglary conviction. Defendant argues
the court had a sua sponte duty to instruct that the jury “had to find [defendant] did not
have an unconditional possessory right to enter” the DeYoung home to find him guilty of
burglary. He also argues the jury received a special instruction on burglary which was
legally incorrect because it failed to set forth this principle, and it allowed the jury to rely
on the existence of the temporary restraining order as evidence that he did not have the
unconditional possessory right to enter the DeYoung home.
       A. Instructions
       The jury received the following modified pattern instruction on the elements of
count III, burglary:

              “To prove that the defendant is guilty of this crime, the People must
       prove [one] that the defendant entered a … residential building; and, two,
       when the defendant entered the residential building, he intended to commit
       a felony, including spousal abuse, false imprisonment by violence, or
       stalking.

              “To decide whether the defendant intended to commit spousal abuse,
       false imprisonment by violence or stalking, please refer to the separate


                                              42.
       instructions I will give you on those crimes; that would also include
       attempted false imprisonment by violence.

              “A burglary was committed if the defendant entered with the intent
       [to] commit spousal abuse, false imprisonment by violence, or attempted or
       stalking.

              “The defendant does not need to have actually committed those
       crimes as long as he entered with the intent to do so. The People do not
       have to prove the defendant actually committed those crimes.

              “The People allege that the defendant intended [to] commit spousal
       abuse, false imprisonment by violence or attempted, or stalking. You may
       not find the defendant guilty of burglary unless you all agree that he
       intended to commit one of those crimes at the time of the entry. You do not
       all have to agree on which one of those crimes he intended.

              “If you find the defendant guilty of the burglary, I instruct you that it
       is burglary of the first degree.”
       Defendant’s claim of instructional error is based on the following special
instruction, which the court gave at the People’s request and immediately followed the
above instruction on the elements of burglary.

              “A defendant can be found guilty of residential burglary of his own
       residence, if the People prove beyond a reasonable doubt that the defendant
       does not have an unconditional possessory right to enter his own residence.
       The existence of a court restraining order forbidding contact by the
       defendant [toward the victim] or the victim’s residence is evidence from
       which you may, but are not required, to conclude that the defendant did not
       have an unconditional possessory right to enter the residence on DeYoung
       Avenue.

              “In order to convict the defendant of the crime of first degree
       residential burglary, each of the elements listed in Instructions 1700 must
       be proved beyond a reasonable doubt.” (Italics added.)

       Defendant did not object to this special instruction.
       B. Analysis
       Defendant asserts that while the first sentence of the special instruction addressed
the possessory right to enter, the court had a sua sponte duty to instruct that defendant



                                             43.
could “only be found guilty of residential burglary if he did not have an unconditional
possessory right to enter the residence,” and the special instruction permitted the jury to
find him guilty simply based on the elements stated in CALCRIM No. 1700, which did
not include the issue of whether he had an unconditional possessory right to enter.22
       However, the special instruction unambiguously advised the jury that defendant
could be convicted of burglary of the DeYoung home if the People proved “beyond a
reasonable doubt that the defendant does not have an unconditional possessory right to
enter his own residence.” While this language was not included in CALCRIM No. 1700,
the special instruction immediately followed the pattern instruction, and we determine the
correctness of jury instructions from the entire charge of the court, rather than by judging
an instruction or portion of an instruction in artificial isolation. (People v. Richardson
(2008) 43 Cal.4th 959, 1028.)
       Defendant further argues that the special instruction was incorrect because it
allowed the jury to rely on the existence of the temporary restraining order as evidence
that he did not have the unconditional possessory right to enter the DeYoung home. The
special instruction stated that the existence of the restraining order was evidence from
which the jurors “may, but are not required, to conclude” he did not have an
unconditional possessory right to enter the DeYoung home. This language raised a
permissive rather than a mandatory inference. (See, e.g., People v. Snyder (2003) 112
Cal.App.4th 1200, 1226.) “[W]hen used in appropriate cases, permissive inferences do
not shift the burden of production or lower the prosecution’s burden of proof. Because
they may or may not be drawn by the jury, they do not operate in an unconstitutionally
pernicious manner.” (People v. Beltran (2007) 157 Cal.App.4th 235, 244.) “ ‘A
permissive inference does not relieve the State of its burden of persuasion because it still

       22Defendant did not object to the burglary instructions and has not claimed his
attorney was ineffective for failing to do so. However, he claims these instructional
errors omitted elements of the offense and reduced the prosecution's burden of proof.


                                             44.
requires the State to convince the jury that the suggested conclusion should be inferred
based on the predicate facts proved.… A permissive inference violates the Due Process
Clause only if the suggested conclusion is not one that reason and common sense justify
in light of the proven facts before the jury. [Citation.]’ [Citations.]” (People v. Mendoza
(2000) 24 Cal.4th 130, 180.)
       Such a permissive inference was clearly supported by the facts of this case.
Defendant argued he never intended to violate the restraining order because he
purposefully entered the DeYoung home when he knew Sewell was not there. However,
defendant’s conviction for burglary did not solely rest on the existence of the temporary
restraining order, or his intent to violate that order. There was substantial evidence he did
not have an unconditional possessory right to enter because he treated the DeYoung
home as a rental property, Sewell paid rent through the deduction against his debt, his
parole agent told him to stay away from the house, and he discovered Sewell had changed
the locks. The restraining order was just another factor for the jury to consider.
   III.   Imposition of Consecutive Sentences
       Defendant was charged and convicted of count II, stalking from January 17
through May 7, 2008; and count III, first degree burglary on January 26, 2008. The court
imposed two consecutive third-strike terms of 25 years to life for counts II and III. The
court did not make any findings as to the potential application of section 654 to the
consecutive sentences.
       Defendant contends the consecutive terms violated section 654 because
defendant’s burglary conviction was based on his intent to commit the felony of stalking,
such that both counts II and III were committed with the same intent and objective.
       A. Section 654
       Section 654 provides in part: “An act or omission that is punishable in different
ways by different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or omission be

                                            45.
punished under more than one provision.” (§ 654, subd. (a).) A course of conduct that
constitutes an indivisible transaction violating more than a single statute cannot be
subjected to multiple punishment. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.)
       However, “multiple crimes that arise from a single course of criminal conduct may
be punished separately, notwithstanding section 654, if the acts constituting the various
crimes serve separate criminal objectives. [Citations.]” (People v. Davey (2005) 133
Cal.App.4th 384, 390.) “[I]f the evidence discloses that a defendant entertained multiple
criminal objectives which were independent of and not merely incidental to each other,
the trial court may impose punishment for independent violations committed in pursuit of
each objective even though the violations shared common acts or were parts of an
otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is
whether the defendant’s criminal intent and objective were single or multiple. Each case
must be determined on its own facts. [Citations.]” (People v. Liu (1996) 46 Cal.App.4th
1119, 1135.)
       “When a trial court sentences a defendant to separate terms without making an
express finding the defendant entertained separate objectives, the trial court is deemed to
have made an implied finding each offense had a separate objective. [Citation.]” (People
v. Islas (2012) 210 Cal.App.4th 116, 129.) We will uphold a trial court’s explicit or
implicit finding if it is supported by substantial evidence. The trial court’s determination
is viewed in the light most favorable to the People, and we presume the existence of
every fact that could reasonably be deduced from the evidence. (People v. Jones (2002)
103 Cal.App.4th 1139, 1143.)
       B. Analysis
       Defendant asserts his consecutive sentences for burglary and stalking violated
section 654 because “ordinarily, if the defendant commits both burglary and the
underlying intended felony, ... section 654 will permit punishment for one or the other but
not for both. [Citations.]” (People v. Centers (1999) 73 Cal.App.4th 84, 98–99.)

                                            46.
Defendant argues this principle applies to this case because his conviction in count III
was for burglary of the DeYoung home with the intent to commit a stalking offense.
       As to count III, however, the jury was instructed that in order to find defendant
guilty of burglary, it had to find that defendant entered the residence with the intent to
commit a felony, “including spousal abuse, false imprisonment by violence, or stalking.”
(Italics added.) The jury was further instructed that it could convict defendant of
burglary even if defendant did not actually commit spousal abuse, false imprisonment by
violence, or stalking, “as long as he entered with the intent to do so,” that the jury did not
have to agree on which of those crimes he intended to commit, and the People did not
have to prove “the defendant actually committed those crimes.”
       The evidence in support of defendant’s burglary conviction supported the
inference that he intended to commit one or all of these alleged felonies when he
removed his electronic monitoring device and left it at his Ellery home; arranged for two
friends to provide a false alibi at the Ellery home; called a locksmith when he realized his
own key did not work, then entered the DeYoung home, secured the front door, and
furtively hid in the closet under the stairs as he awaited Sewell’s return. His plans were
thwarted when Willis discovered him hiding in the closet.
       Defendant argues there is no evidence he entered the house to commit false
imprisonment or spousal abuse, but the evidence only supported a finding he entered to
commit a stalking offense. However, defendant’s conduct seemed contrary to his prior
and subsequent stalking activities, where he parked his car and watched Sewell, appeared
at the same public place, or followed her around by car or on foot. In contrast to the prior
incidents where he wanted Sewell to know he was watching her, defendant’s hurried
efforts to call the locksmith, get into the house, and hide in the closet under the stairs as
he waited for Sewell to return, are more consistent with his intent to commit an assaultive
offense upon her return.



                                              47.
       Even if defendant burglarized the DeYoung home to commit a stalking offense,
his convictions for burglary and stalking are not based on an indivisible transaction. The
elements of stalking are “(1) repeatedly following or harassing another person, and (2)
making a credible threat (3) with the intent to place that person in reasonable fear of
death or great bodily injury. [Citation.]” (People v. Ewing (1999) 76 Cal.App.4th 199,
210.) One need not inflict physical harm on another person, or damage property, to stalk
a victim. (Ibid.) The offense of stalking cannot be completed instantaneously but
comprises a series of repeated acts over a period of time, which the perpetrator intends to
engender a prolonged state of fear and intimidation. (Ibid.)
       Defendant’s conviction for stalking was not solely based on his single act of
burglarizing the DeYoung home on January 26, 2008, but a series of events which he
committed over five months, from January 17 through May 7, 2008: His sudden entry
into the garage as Sewell returned to the DeYoung home on January 17, 2008; his
admitted presence at the same bar where Sewell and Epperson were, and his appearance
at Epperson’s home on March 7, 2008, as Sewell drove back to Epperson’s house; his
presence near Sewell’s car as she left her attorney’s office, and his conduct as he walked
by and threatened her at the Patterson Building on March 13, 2008; the discovery of the
pink cell phone under her car, which was likely used as a tracking device, even if that
period was limited by the cell phone’s battery; and his presence in the garage at Sewell’s
apartment on March 15, 2008, on the night she was violently beaten.23
       Based on the record of this case, there is substantial evidence that the acts which
comprised defendant’s stalking behavior, committed from January 17 to May 7, 2008,
were independent of and not incidental to his burglary of the DeYoung home on January


       23While the jury was unable to reach a verdict on count IV, corporal injury to a
spouse, based upon the assault in the garage, it found defendant guilty of misdemeanor
disobeying a domestic relations court order on the same date. (§ 273.6, subd. (a).)



                                            48.
26, 2008, and his conduct was not part of an indivisible transaction which would preclude
multiple punishment.
   IV.      Presentence Conduct Credits
         Defendant contends, and the People concede, the court erroneously limited his
presentence conduct credits to 15 percent of his actual time in custody under section
2933.1. The People agree section 2933.1 does not apply to this case, and defendant
should have received a total of 2,552 days of presentence credits (1702 actual days plus
850 days of credits).
                                       DISPOSITION
         The trial court is directed to amend the abstract of judgment to reflect 2,552 days
of presentence credits (1702 actual days plus 850 days of credits) and to transmit copies
of the amended abstract to the appropriate parties and entities. In all other respects, the
judgment is affirmed.

                                                                  _____________________
                                                                  Poochigian, Acting P.J.
WE CONCUR:


______________________
Detjen, J.


______________________
Peña, J.




                                              49.
