Filed 5/15/15 P. v. Villalobos CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066419

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF32714)

JOSE G. VILLALOBOS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Imperial County, Donnell B.

Donnelly, Judge. Affirmed.

         Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff

and Respondent.
       A jury convicted Jose Guadalupe Villalobos of one count of stalking in violation

of a restraining order (Pen. Code, § 646.9, subd. (b)),1 two counts of willful disobedience

of a court order (§ 166, subd. (a)(4)), one count of resisting a peace officer (§ 148, subd.

(a)(1)), and one count of misdemeanor vandalism (§ 594, subd. (a)). The jury acquitted

Villalobos of one count of making a criminal threat. (§ 422, subd. (a).)

       The court sentenced Villalobos to a term of four years in state prison for stalking,

six months in county jail for each conviction of willful disobedience of a court order, one

year in county jail for resisting a peace officer, and one year in county jail for vandalism.

Each sentence was ordered to run concurrently. The court suspended Villalobos's state

prison sentence and placed him on probation for three years. As a condition of his

probation, Villalobos was required to serve one year in county jail. The remaining jail

sentences would be satisfied by this term.

       Villalobos appeals. He contends the evidence is insufficient to support his

convictions for stalking and willful disobedience of a court order.2 We disagree and

affirm the judgment.

                                          FACTS

       Maria de Jesus Villalobos (Maria) lives with her family in Westmorland,

California. Villalobos is her son. In early 2014, Villalobos became angry with his sister

Sandra because she was making noise in the kitchen. Villalobos called Sandra insulting

1      Further statutory references are to the Penal Code.

2     Villalobos does not challenge any other aspect of the judgment, including his
convictions for resisting a peace officer and vandalism.
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names and broke a potted plant. When Villalobos is angry, he sometimes picks up a

kitchen knife. Villalobos said "fuck your mother" and "I hope you die." The next month,

Villalobos became angry with Maria because she told him to stop making telephone calls

to Mexico. Villalobos threw the telephone to the ground, breaking it. Shortly afterwards,

Maria obtained a temporary restraining order against him. The restraining order required

Villalobos to move out of Maria's house. It also required him to stay 100 yards away

from Maria and her house.

       Several days later, Maria returned from an early morning walk and noticed

Villalobos lying on the ground behind her house. At some point, Maria also saw him

leaving her house carrying his radio. Later he knocked on the door or window. He said

he wanted to retrieve some of his CDs. Maria told him to leave and did not let him in.

Villalobos then spray painted the word "bitch" across her door and left. Maria called

police. An officer from the Westmorland Police Department, Fred Beltran, arrived and

took photographs of the door. Beltran attempted to find Villalobos, but could not.

       The next day, Maria saw Villalobos at her house again after she returned from her

walk. Maria told him he should not be there. She said she would call the police.

Villalobos became angry. He said he would break Maria's windows and door and "burn

down the house" if she called the police. Villalobos's words scared Maria, but she was

not sure whether he would actually carry out these threats. Maria watched him take his

belongings to a vacant lot across the street. Fifteen minutes later she called police.

       Beltran responded, met Villalobos in the vacant lot, and told him he was being

placed under arrest for violating the restraining order. Villalobos resisted at first, but

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relented when Beltran threatened him with his Taser. Beltran placed Villalobos in his

patrol car, in which he attempted to kick out the rear windows. Beltran gave Villalobos a

cigarette, which calmed him down. Villalobos told Beltran he had nowhere to go.

                                       DISCUSSION

                                               I

       Villalobos first challenges the sufficiency of the evidence to support his conviction

for stalking. Our standard of review is well settled: "The question, of course, is not

whether there is evidence from which the jury could have reached some other conclusion,

but whether, viewing the evidence in the light most favorable to respondent, and

presuming in support of the judgment the existence of every fact the trier reasonably

could deduce from the evidence, there is substantial evidence of appellant's guilt—i.e.,

evidence that is credible and of solid value—from which a rational trier of fact could

have found the defendant guilty beyond a reasonable doubt." (People v. Falck (1997) 52

Cal.App.4th 287, 297.) In general, "the testimony of a single witness is sufficient

evidence to support the verdict." (People v. Zavala (2005) 130 Cal.App.4th 758, 766.)

       The statute defining the offense of stalking provides, in relevant part, as follows:

"Any person who willfully, maliciously, and repeatedly follows or willfully and

maliciously harasses another person and who makes a credible threat with the intent to

place that person in reasonable fear for his or her safety, or the safety of his or her

immediate family is guilty of the crime of stalking . . . ." (§ 646.9, subd. (a).) The

elements of the offense are therefore "(1) following or harassing another person; (2)

making a credible threat; and (3) intending to place the victim in reasonable fear for her

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safety." (People v. Uecker (2009) 172 Cal.App.4th 583, 594.) Where, as here, a

defendant has been convicted under subdivision (b) of the statute, proof of "a temporary

restraining order, injunction, or any other court order in effect prohibiting the behavior

described in subdivision (a) against the same party" is required. (§ 646.9, subd. (b).)

       The Attorney General contends that Villalobos's conduct constituted "harassing"

rather than "following" for purposes of the statute. (See § 646.9, subd. (a).) The statute

defines harassment as engaging "in a knowing and willful course of conduct directed at a

specific person that seriously alarms, annoys, torments, or terrorizes the person, and that

serves no legitimate purpose." (§ 646.9, subd. (e).) A course of conduct is "two or more

acts occurring over a period of time, however short, evidencing a continuity of purpose."

(§ 646.9, subd. (f).)

       We conclude the evidence was sufficient to sustain Villalobos's conviction for

stalking. He repeatedly approached Maria's house in the early morning hours, in

violation of the restraining order protecting her. On the first occasion, he entered the

house without permission and later spray painted the word "bitch" on Maria's door when

she would not let him back in. On the second occasion, Maria told him to leave and he

became angry. He threatened violence and told Maria he would "burn down the house" if

she called the police.3 These actions constitute a "course of conduct" for purposes of the

statute. (§ 646.9, subd. (f).) Even though she did not take any additional security


3      Contrary to Villalobos's contention, his statement that he would "burn down the
house" could reasonably be viewed as a threat to physically harm Maria and her family
because they lived in the house. Setting fire to the house would place their physical well-
being (and their lives) in serious danger.
                                              5
precautions, and she was not sure Villalobos would actually follow through on his

threats, the jury could reasonably conclude that Maria was seriously alarmed or annoyed

by his conduct. (§ 646.9, subd. (e).) Maria called police after both encounters with

Villalobos and sought their assistance. He had a history of violent and confrontational

behavior, including reaching for a kitchen knife during arguments. Maria was scared of

him after his threat to burn her house down. The evidence was sufficient to find that

Villalobos "harassed" Maria. (Ibid.)

       Villalobos argues there was no showing of "substantial emotional distress" and

therefore the conviction for stalking may not stand. (See People v. Ewing (1999) 76

Cal.App.4th 199, 211-212.) The statute, however, no longer requires a showing of

"substantial emotional distress" to establish harassment. (§ 646.9, subd. (e); see Stats.

2002, ch. 832, § 1.) The statute also does not require that the victim be in sustained fear,

as Villalobos claims. (See § 646.9, subds. (a), (g); cf. § 422, subd. (a).) His arguments

are unavailing.

       Villalobos also argues the jury's acquittal on the charge of making a criminal

threat under section 422, subdivision (a), shows that the evidence was insufficient for the

jury to find a "credible threat" for purposes of section 646.9, subdivision (a). The

evidence necessary to prove the two, however, is not identical. The offense of making a

criminal threat requires elements not necessarily present in a credible threat, including

that the threatened act "will result in death or great bodily injury to another person;" the

threat "is so unequivocal, unconditional, immediate, and specific as to convey to the

person threatened, a gravity of purpose and an immediate prospect of execution of the

                                              6
threat;" and the threat causes the victim "reasonably to be in sustained fear for his or her

own safety or for his or her immediate family's safety." (§ 422, subd. (a).) By contrast, a

credible threat is "a verbal or written threat, . . . or a threat implied by a pattern of

conduct or a combination of verbal, written, or electronically communicated statements

and conduct, made with the intent to place the person that is the target of the threat in

reasonable fear for his or her safety or the safety of his or her family, and made with the

apparent ability to carry out the threat so as to cause the person who is the target of the

threat to reasonably fear for his or her safety or the safety of his or her family." (§ 646.9,

subd. (g).) Because the elements of threatened death or great bodily injury, immediate

prospect of execution, and sustained fear for the victim's safety are not present in the

definition of credible threat, the jury could reasonably acquit Villalobos on the charge of

making a criminal threat but find a credible threat sufficient for a conviction of stalking.

       Similarly, based on the substance and manner of Villalobos's threat to burn down

Maria's house, the jury could reasonably infer he intended to place Maria in reasonable

fear for her safety or the safety of her immediate family. (§ 646.9, subd. (a).) The

evidence supports Villalobos's conviction for stalking. (Ibid.)

                                                II

       Villalobos also contends the evidence is insufficient to support his conviction for

willful disobedience of a court order. (§ 166, subd. (a)(4).) Again, our standard of

review for sufficiency of the evidence is well-settled. (See People v. Greenfield (1982)

134 Cal.App.3d Supp. 1, 5; see also People v. Falck, supra, 52 Cal.App.4th at p. 297.)

Section 166, subdivision (a)(4), prohibits "[w]illful disobedience of the terms as written

                                                7
of any process or court order or out-of-state court order, lawfully issued by a court,

including orders pending trial." The elements of this offense are the following: "the court

order was made; the defendant had knowledge of the order; the defendant possessed the

ability to comply; and that the defendant disobeyed the order." (Greenfield, at p.

Supp. 4.)

       Villalobos contends there was inadequate proof that he had notice or knowledge of

the temporary restraining order protecting Maria. He contends "the only evidence as to

the protective order was Officer Beltran's review of a protective order presented by

[Maria]." He acknowledges, however, that the protective order itself was admitted into

evidence. As the Attorney General notes, the protective order contained a proof of

service, signed under penalty of perjury, showing personal service on Villalobos. In his

reply, Villalobos does not directly respond to this evidence. Based on the proof of

service, a reasonable jury could find he had notice and knowledge of the protective order.

Villalobos's claim that "[t]his record is devoid of evidence appellant received the

restraining order" is therefore meritless.

       Villalobos points to section 836, but his reliance on that statute is unpersuasive.

Section 836 regulates the activities of arresting officers in the context of an alleged

violation of a restraining order; it does not dictate the type or quantum of proof necessary

at trial on such a violation. (§ 836, subd. (c); see 4 Witkin & Epstein, Cal. Criminal Law

(4th ed. 2012) Pretrial Proceedings, § 32, p. 271.) Moreover, the evidence shows section

836 was satisfied at the time of Villalobos's arrest. That section provides, in relevant

part, as follows: "The person against whom a protective order has been issued shall be

                                              8
deemed to have notice of the order if the victim presents to the officer proof of service of

the order, the officer confirms with the appropriate authorities that a true copy of the

proof of service is on file, or the person against whom the protective order was issued

was present at the protective order hearing or was informed by a peace officer of the

contents of the protective order." (§ 836, subd. (c)(2); italics added.) Here, Beltran

testified that the restraining order in evidence was a true and correct copy of the

restraining order that Maria gave him on the day before Villalobos's arrest. That order

included a proof of service on Villalobos. Because "the victim present[ed] to the officer

proof of service of the order," section 836 was satisfied. (§ 836, subd. (c)(2).)

                                      DISPOSITION

       The judgment is affirmed.




                                                                            McDONALD, J.

WE CONCUR:


HUFFMAN, Acting P. J.


IRION, J.




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