Filed 10/21/15 P. v. Buckley CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066227

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD244590)

THOMAS CONATY BUCKLEY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Modified in part, affirmed in part, remanded with directions.

         Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Julie L. Garland, Assistant

Attorneys General, A. Natasha Cortina, Michael Pulos, Deputy Attorneys General, for

Plaintiff and Respondent.
       A jury convicted Thomas Conaty Buckley of simple stalking of M.L. (Pen. Code,1

§ 646.9, subd. (a); count 1) and of stalking M.L. with a court order in effect (§ 646.9,

subd. (b); counts 2-3). It also convicted Buckley of one count of simple stalking of K.C.

(§ 646.9, subd. (a); count 6) but found him not guilty of another count of simple stalking

of K.C. (§ 646.9, subd. (b); count 4) and of stalking K.C. with a court order in effect

(§ 646.9, subd. (b); count 5).

       In separate proceedings, Buckley admitted he had suffered three prior prison

convictions as charged in the amended information. The court sentenced Buckley to 19

years in state prison as follows: it designated count 1 as the upper term and imposed a

10-year term on it, plus consecutive two-year terms on counts 2, 3, and 6, and

consecutive one-year terms for each of his three prior prison convictions under the "Three

Strikes Law."

       Buckley contends the trial court erroneously (1) permitted the prosecution to

amend the information on the first day of trial and denied him a continuance to address

this amended information, thus violating his constitutional rights to due process and a fair

trial; (2) denied his motion to sever his trial for the crimes committed against the two

victims, thus violating his constitutional right to testify; (3) permitted prejudicial

misconduct by the prosecutor's victim-witness advocate to deprive him of a fair trial; and

(4) sentenced him under both section 646.9 subdivision (a) and section 646.9 subdivision

(b) for his convictions involving M.L., despite the fact that the latter provision relates to a



1      Statutory references are to the Penal Code.
                                               2
penalty and not a substantive crime. We vacate the conviction on counts 1 and 2 and

otherwise affirm the judgment. We remand for resentencing.

                                     BACKGROUND

       We do not set forth the facts in detail because Buckley does not challenge his

convictions on sufficiency of the evidence grounds.

         Count 1—Stalking of M.L. (November 12, 2010, to November 15, 2010)

       M.L. met Buckley in June 2010, and they started an intimate relationship. The

morning of November 12, 2010, she ended the relationship. Buckley did not agree to the

breakup. During the ensuing approximately 30 hours, he telephoned her about 30 times

and sent her about 70 text messages. Buckley sent M.L. via text message a photograph of

a dead person in a pool of blood. M.L. was afraid because Buckley knew that her father

had committed suicide. Buckley sent M.L. a text message accusing her of killing her

father. Buckley also sent M.L. a suicide note that made her fear for her personal safety.

M.L testified, "I don't know if he's referencing my dad or if he is referencing himself or

he means I'm going to die." When M.L. was packing her belongings to leave Buckley's

apartment, he was very upset and broke her belongings and punched holes in a closet

while telling her, "I love you." Buckley grabbed a knife, went to the bathroom and

threatened to kill himself. M.L. called police and Buckley's probation officer.

       On November 15, 2010, M.L. obtained a temporary restraining order (TRO)

against Buckley.




                                             3
                 Count 2—Stalking of M.L. With a Court Order in Effect

                      (November 16, 2010, to November 30, 2010)

       After M.L. had obtained a TRO, Buckley continued to telephone her. He also sent

M.L.'s mother text messages, including one with an attached nude picture of M.L. M.L.

was afraid Buckley would send her nude pictures to her boss or coworkers, thus

endangering her employment.

                 Count 3—Stalking of M.L. With a Court Order in Effect

                       (December 1, 2010, to September 30, 2012)

       On December 1, 2010, the court issued a 5-year permanent restraining order

barring Buckley from contacting M.L. At the hearing regarding that restraining order,

Buckley handed M.L. her mail, specifically a catalog, inside of which he had placed nude

pictures of her. She became afraid because he did not seem to care about the court's

order. At one point, the bailiff escorted Buckley away. But a short time afterwards,

when M.L. was filling out paper work, Buckley returned, walked past her and stared at

her "like he wanted to kill [her]." That same day police arrested Buckley for violating the

terms of his parole. His parole was revoked, and he was imprisoned.

       Even after Buckley's arrest he continued to telephone M.L. about 70 or 80 times.

She reported his actions to police in February 2011. Buckley also asked other individuals

to contact M.L. on his behalf, making M.L. fear he would hurt her or harm her

employment. M.L. stated that following a jailhouse call she received from Buckley in

May 2011, she checked Buckley's record of convictions: "I was so fearful I said 'who—

what am I dealing with?' " She checked a court website and discovered "[t]hat

                                            4
[Buckley's] done everything under the sun illegally, everything; I mean rape, burglary,

[driving under the influence], evading an officer, assault, the list was long. I said, 'there

is no way. He's scary. And I just need to put myself as far away from him as possible.'

But how? I mean I've filed all these police reports, and nothing is happening from it. So

I was frustrated."

       On September 30, 2012, Buckley sent M.L. a text message stating he was

changing residences and moving to a place on the same street as M.L., and asking her if

that would be a problem. M.L. testified, "There is no way he would have known [my

new address]. I don't know how he knew." M.L. was afraid and contacted police. She

testified that at the time of trial she still feared Buckley and was receiving counseling.

She explained she became discouraged because she had to contact police multiple times:

"I would always think, you know, the hoops you have to go through and the memories

that you have to relive and it's all out there for everyone to see. It was really a hard

process so that's why I went into therapy so that I could, you know, compose myself

during this process."

                     Count 6—Stalking of K.C. with Court Order in Effect

                          (October 27, 2012, to November 12, 2012)

       K.C. and Buckley had a three-week intimate relationship lasting from around

September 2, 2012, to September 24, 2012, during which she allowed him to take nude

photos of her. When K.C. broke off the relationship, Buckley got upset and sent her

numerous text messages. In early October 2012, K.C. obtained a TRO against Buckley,



                                              5
but he continued contacting her by phone and text message. On October 25, 2012, she

got a permanent restraining order against him.

       In October 2012, K.C. investigated Buckley's criminal history and learned he had

been convicted of stalking and rape, and this increased her fear of him. K.C. learned

about M.L.'s TRO against Buckley.

       The night of November 9, 2012, when one of K.C.'s friends came to visit her,

K.C.'s dog escaped from the yard (just as it had a previous night when police had later

found Buckley near her house). When K.C.'s friend was about to leave, he saw Buckley

outside the house, and decided to spend the night at K.C.'s house. The next morning,

K.C. discovered that her guest's car had been keyed. K.C. sent Buckley a text message

asking if he knew her dogs' whereabouts. He replied, "[The dog] is missing? Karma?"

He also texted her saying he had found the dog, and asking K.C. to call him as soon as

possible.

       In November 2012, Buckley sent K.C.'s nude photos to some of her friends and

also posted those pictures on a Facebook page he had created. One night when she and a

roommate were watching television, Buckley sent her a text message on her work cell

phone stating he was aware they were watching television. K.C. was afraid and changed

her personal contact information and removed information about herself from the

Internet. She also invested in a security system for her house.




                                             6
       San Diego Police Department Detective Roger McCarvel's Testimony

       San Diego Police Detective Roger McCarvel spoke with M.L. on November 29,

2010, about Buckley's harassing conduct and again on December 1, 2010, after M.L. had

obtained a temporary restraining order. He described her demeanor as upset, adding that

M.L just wanted Buckley to stop contacting her.

                                      DISCUSSION

                                            I.

The Court Did Not Err by Permitting the Prosecution to Amend the Information

       Buckley contends the trial court erred by permitting the prosecution to amend the

information on the first day of trial to add new charges, thus denying him due process and

a fair trial. He argues: "The specific prejudice incurred by [him] was having to try and

substantially change the defense and scramble to find witnesses and evidence to

challenge the new charges and more specific time periods. The problem was exacerbated

by the court's denial of a continuance in order to have adequate time to prepare an

'amended defense.' "

A. Background

       In December 2012, the People filed an information alleging that between

November 10, 2010, and September 30, 2011, Buckley stalked M.L. with a court order in

effect (§ 646.9, subd. (b); count 1); stalked K.C. between September 30, 2012, and

November 11, 2012, (§ 646.9, subd. (a); count 2) and between October 25, 2012, and

November 11, 2012, stalked K.C. with a court order in effect (§ 646.9, subd. (b); count

3).

                                             7
       On September 19, 2013, at the start of trial, the People moved to amend the

information to allege a total of six counts specifying discrete time frames in which

Buckley stalked M.L and K.C.2 Defense counsel objected: "Today's the date of trial.

. . . I believe at this late in the case, that it may extend [Buckley's] exposure although

with the dates and [section] 654, I'm not sure."

       The court granted the People's motion to amend: "In this particular case, [the

amended information] didn't really allege any new conduct. Any conduct that wasn't

[referenced at the preliminary hearing], it wasn't anything that would prejudice the

defense's opportunity to present a defense to any of the charges. [¶] And as such there

has been notice of the fact of the events that are the subject of the amended information

and . . . there has been notice and there has been an opportunity to present a defense for

these charges as they are currently charged in the amended information."

       On September 23, 2013, the People filed a first amended information, which did

not further change the stalking allegations; rather, it only modified the details regarding

Buckley's prior convictions. Defense counsel objected that she needed time to secure the




2      The amended information alleged Buckley stalked M.L. between November 12,
2010, and November 15, 2010 (§ 646.9, subd. (a); count 1); stalked M.L. between
November 16, 2010, and November 30, 2010, while a court order was in effect (§ 646.9,
subd. (b); count 2); and stalked M.L. between December 1, 2010, and September 30,
2012, while a court order was in effect (§ 646.9, subd. (b); count 3). It also alleged
Buckley stalked K.C. between September 30, 2012, and October 5, 2012, while a court
order was in effect (§ 646.9, subd. (a); count 4); stalked K.C. between October 6, 2012,
and October 26, 2012, while a court order was in effect (§ 646.9, subd. (b); count 5); and
stalked K.C. between October 27, 2012, and November 12, 2012 (§ 646.9, subd. (a);
count 6).
                                              8
testimony of San Diego Police Officer Fay, who "took a report early on before the

restraining order was filed."

       The court overruled Buckley's objection: "I don't see where the real posture of the

case has really changed. The defense has always been on notice that the conduct . . . in

question started in November of 2010 and really led all the way up to . . . [November

2012] between the two alleged victims in the case. And I don't see by parsing it out as to

whether or not there is sufficient intent." Accordingly, the court again granted the

People's motion to amend: "[T]he defense is the same [as] to each one of the charges as

they are . . . currently charged. The only difference that has been added is that . . . the

prosecution has parceled out those actions that took place after the issuance of a

restraining order and then after the issuance of an injunction. . . . There is no new

discovery associated with those particular charges as modified."3

B. Legal Principles

       Section 1009 states: "An indictment or accusation cannot be amended so as to

change the offense charged, nor an information so as to charge an offense not shown by

the evidence taken at the preliminary examination." If leave is granted to amend an

information, the decision is overturned only if it amounts to an abuse of the trial court's

considerable discretion. (People v. Miralrio (2008) 167 Cal.App.4th 448, 458.) The pre-



3       In a new trial motion, defense counsel conceded: "[T]he changes themselves [to
the first amended information] didn't add any sort of—didn't allege any new violation or
didn't allege any new conduct, but I think the issue is with the second element: whether
or not the change required additional preparation by trial counsel, and I think trial counsel
did make a fairly clear record in that she wanted to subpoena [Officer Fay]."
                                               9
eminent due process principle is that the accused must be informed of the nature and

cause of the accusation. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15;

People v. Torres (2011) 198 Cal.App.4th 1131, 1139-1140.) A defendant's due process

rights are not prejudiced by amendment of the information, and the trial court may permit

amendment of the accusatory pleading "at any stage of the proceeding, up to and

including the close of trial," so long as the defendant's substantial rights are not

prejudiced. (People v. Graff (2009) 170 Cal.App.4th 345, 361.)

C. Analysis

       We conclude the trial court did not abuse its discretion by permitting the

prosecution to amend the information. As defense counsel conceded, the amendment did

not add any charge that was not supported by evidence adduced at the preliminary

hearing; therefore, Buckley's substantial rights were not prejudiced. From the time

Buckley knew of the original complaint, he was on notice of allegations regarding

stalking, some of which were alleged to have occurred after a court order was in place.

Finally, as noted, the trial court has broad discretion to permit amendments even during

trial. The court stated that even after it had granted the first motion to amend, the defense

had a few days to adjust to the ruling and respond accordingly. On this record, there was

no error.

                                                   II.

       The Court Did Not Err by Denying Buckley's Motion for a Continuance

       Buckley contends the court erred by not granting him a continuance, thus

depriving him of an opportunity to obtain Officer Fay's trial testimony, "which would

                                              10
have substantially impeached [M.L.'s] claims. The amendment required counsel to

change her strategy from defending three charges during a broad period of time to six

charges allegedly occurring during more specific time periods. This required additional

evidence and time to prepare."

A. Background

       After the court permitted the prosecution to amend the information the first time,

defense counsel sought the court's commitment to help her address trial preparations in

light of the amendments: "I'm going to continue to obviously investigate and try to get

these witnesses in that [sic] I feel are necessary and I would appreciate some leniency if

necessary with scheduling conflicts if I get those last minute witnesses on board." The

court agreed: "You will of course have those things." At that hearing, the prosecutor

informed the court: "For the record too, and I explained to [defense counsel,] I believe I

have Officer Fay subpoenaed. I was not intending on calling him. I think he's either out

the first two days of this week. I can check into that for [defense counsel], but I will

make him available for [defense counsel] under my subpoena as well."

       During trial, defense counsel sought a continuance to obtain Officer Fay's

testimony: "The more I listen to M.L.'s testimony about her attitude and her frustration

with the system and filing multiple police reports, I think it is imperative for me to get

Officer Fay's testimony, live testimony here about [M.L.'s] demeanor when she made that

report. She said she did not desire prosecution. She never mentioned any threats

whatsoever, but she was afraid for Mr. Buckley's safety and wanted, you know, officers

to be contacting him for the possible suicide issue."

                                             11
       To address defense counsel's concern, the prosecutor offered to stipulate as to

what M.L. had told Officer Fay. But the prosecutor opposed the continuance: "In a

stalking crime, it is not just the time frame of the stalking we're talking about. It is

everything that happened before that. So [defense counsel] has been on notice that the

defendant's demeanor, regardless of whether the time frame is extended or been broken

down into different areas, has always been a matter in this case. [Defense counsel has]

always had the opportunity to know that her client's demeanor is at issue and the victim's

demeanor is at issue at all times." The court denied the continuance request.4

B. Legal Principles

       " 'A motion for continuance should be granted only on a showing of good cause.

(§ 1050, subd. (e).)' [Citation.] To support a continuance motion to secure a witness's

attendance at trial, a showing of good cause requires a demonstration, among other

things, that the defendant exercised due diligence to secure the witness's attendance."

(People v. Wilson (2005) 36 Cal.4th 309, 352.) " '[T]he decision whether or not to grant a


4       At the hearing on the new trial motion, the court explained why it had denied the
requested continuance: "But the fact of the matter is [defense counsel] wanted to
subpoena somebody that was under subpoena. So why would I grant a continuance under
those circumstances so that [defense counsel] could subpoena a witness that was already
under subpoena?" The court added: "The addition of the charges stated in a different
way did not involve any new discovery, any new witnesses, did not change the nature of
the charges. It just had added a couple of charges there. [¶] . . . There had been
multiple continuances of this trial, starting with [February 15, 2013,] up until [September
17, 2013]. The amended information was filed on [September 19, 2013]. Jury selection
didn't begin for four days. [¶] Counsel had plenty of time to consult with . . . [Buckley],
to revaluate a strategy, and if a witness was not subpoenaed, which [he] was, counsel
could have effected that subpoena in the four days between [September, 19, 2013, and
September 23, 2013]."

                                              12
continuance of a matter rests within the sound discretion of the trial court. [Citations.]

The party challenging a ruling on a continuance bears the burden of establishing an abuse

of discretion, and an order denying a continuance is seldom successfully attacked.

[Citation.] [¶] Under this state law standard, discretion is abused only when the court

exceeds the bounds of reason, all circumstances being considered. [Citations.]

Moreover, the denial of a continuance may be so arbitrary as to deny due process.

[Citation.] However, not every denial of a request for more time can be said to violate

due process, even if the party seeking the continuance thereby fails to offer evidence.

[Citation.]' [Citation.] '[T]he trial court may not exercise its discretion "so as to deprive

the defendant or his attorney of a reasonable opportunity to prepare." ' " (People v.

Fuiava (2012) 53 Cal.4th 622, 650.)

C. Analysis

       We conclude the court did not abuse its discretion in declining to grant Buckley a

continuance. M.L.'s demeanor when she reported the stalking incidents to police did not

suddenly become important after the information was amended. Rather, it was always at

issue in the case, even under the original information. As a result, Buckley has not

shown he exercised diligence in obtaining testimony on this issue. In any event, Buckley

overstates the importance of M.L.'s demeanor as recorded by Officer Fay, whose

description of M.L.'s demeanor was not dispositive of whether during the time the

stalking persisted M.L. was reasonably in fear for her life because of Buckley's malicious




                                              13
harassing conduct under section 646.9, subdivision (a).5 Further, the People had already

subpoenaed Officer Fay and were willing to make him available to the defense. The

People also were prepared to stipulate regarding what M.L. told Officer Fay, thus

facilitating matters for the defense. Moreover, Officer McCarvel testified regarding

M.L.'s demeanor when she reported an incident of Buckley's continued harassment of her

after she had obtained the TRO. This testimony was helpful in lieu of Officer Fay's

testimony. In light of these circumstances, we conclude the court did not abuse its wide

discretion in denying the continuance.

       Nor "did the court's ruling deny defendant his federal constitutional rights to due

process and compulsory process." (People v. Howard (1992) 1 Cal.4th 1132, 1171.) "In

this case, defendant could not show that he had been diligent in securing an expert

witness's attendance, that a substitute would be available within a reasonable time, or that

any witness, assuming one could be found, would say something material and helpful to

the defense. Under these circumstances, '[g]iven the deference necessarily due a state

trial judge in regard to the denial or granting of continuances,' the court's ruling does not

support a claim of error under the federal Constitution." (Id. at p. 1172; see also People

v. Wilson, supra, 36 Cal.4th at p. 352.)




5      The prosecutor asked Officer McCarvel: "When you were deciding what to do
with the first report, did you take into account [M.L.'s] demeanor and attitude about the
alleged violations?" Officer McCarvel responded, "Well she could have a really upset
demeanor but if there is no evidence, it's not going to get prosecuted. So she could be
upset, she could be happy, she can be anything but if there is no evidence it is not going
to go anywhere."
                                              14
                                                   III.

            The Court Did Not Err by Denying Buckley's Motion for Severance

       Buckley contends that by denying his severance motion, the trial court erroneously

prevented him from testifying in a separate trial on the allegations regarding M.L., where

he would have had an opportunity to refute her claims that she was afraid of him "due to

his past acts." He argues that in light of the court's decision to join the cases, "[e]ven had

[he] taken the stand 'conditionally,' i.e., limiting his testimony to the [M.L.] issue, the jury

would have been left to wonder about [K.C.'s] claimed fear. It would have reasonably

questioned why [K.C.] was not addressed and whether [Buckley's] intent as to [M.L.]

differed from his intent regarding [K.C.]"

A. Background

       The court declined Buckley's request to sever the charges and conduct two trials,

ruling that the same crime of stalking was involved in the charged offenses against M.L.

and K.C.; the evidence was cross-admissible; and the two victims' cases against Buckley

appeared to be of equal strength.

B. Legal Principles

       "Section 954 provides that '[a]n accusatory pleading may charge two or more

different offenses connected together in their commission . . . or two or more different

offenses of the same class of crimes or offenses, under separate counts, and if two or

more accusatory pleadings are filed in such cases in the same court, the court may order

them to be consolidated.' Even where the statutory requirements for joinder are satisfied,



                                              15
however, 'a trial court has discretion to order that properly joined charges be tried

separately.' " (People v. Scott (2015) 61 Cal.4th 363, 395.)

       " 'The law favors the joinder of counts because such a course of action promotes

efficiency.' " (People v. Scott, supra, 61 Cal.4th at p. 395; People v. Trujeque (2015) 61

Cal.4th 227, 259.) " 'A unitary trial requires a single courtroom, judge, and court

attach[és]. Only one group of jurors need serve, and the expenditure of time for jury voir

dire and trial is greatly reduced over that required were the cases separately tried. In

addition, the public is served by the reduced delay on disposition of criminal charges both

in trial and through the appellate process.' " (People v. Soper (2009) 45 Cal.4th 759,

772.) "For these and related reasons, consolidation or joinder of charged offenses 'is the

course of action preferred by the law.' " (Ibid.)

       "For purposes of joinder, offenses are deemed to have been 'connected together in

their commission' where there was a common element of substantial importance in their

commission, even though the offenses charged did not relate to the same transaction and

were committed at different times and places and against different victims. [Citations.]

Similarly, within the meaning of section 954, offenses are 'of the same class' if they

possess common characteristics or attributes." (Aydelott v. Superior Court (1970) 7

Cal.App.3d 718, 722; People v. Lucky (1988) 45 Cal.3d 259, 276.) Consolidation or

joinder is generally preferred by the law because it promotes efficiency. (People v.

Hartsch (2010) 49 Cal.4th 472, 493.)

       Nevertheless, " '[r]efusal to sever may be an abuse of discretion where: (1)

evidence on the crimes to be jointly tried would not be cross-admissible in separate trials;

                                             16
(2) certain of the charges are unusually likely to inflame the jury against the defendant;

[or] (3) a "weak" case has been joined with a "strong" case, or with another "weak" case,

so that the "spillover" effect of aggregate evidence on several charges might well alter the

outcome of some or all of the charges . . . .' " (People v. Scott, supra, 61 Cal.4th at

p. 396.) "If the evidence underlying the joined charges would have been cross-admissible

at hypothetical separate trials, 'that factor alone is normally sufficient to dispel any

suggestion of prejudice and to justify a trial court's refusal to sever properly joined

charges.' " (People v. Merriman (2014) 60 Cal.4th 1, 38.)

       "In determining whether denial of the severance motion was an abuse of

discretion, we examine the record before the trial court at the time of its ruling." (People

v. Scott, supra, 61 Cal.4th at p. 396.) To establish an abuse of discretion in this context,

Buckley "must make a clear showing of prejudice . . . ." (Ibid.) We first decide whether

the statutory requirements for joinder are met, and then assess whether the trial court

properly determined that joinder would not prejudice Buckley. (People v. Scott, supra,

61 Cal.4th at p. 395; People v. Lucky, supra, 45 Cal.3d at pp. 276-277.)

C. Analysis

       The trial court did not err by finding the statutory requirements for joinder were

met. The evidence was cross-admissible; specifically, both M.L. and K.C. testified that

they investigated Buckley's criminal past, and the information they found regarding

Buckley's crimes influenced their decision to take Buckley's threats more seriously.

       Buckley's conduct with both victims was similar: his relationships started out

intensely but were short-lived because the women terminated them. At that point,

                                              17
Buckley refused to accept the breakups, and he elected to send a large amount of text

messages and make phone calls to harass the victims. Having quickly obtained the

victim's nude photos at the start of the relationship, he threatened to send their nude

photos to employers or friends and actually carried out the threat. His harassing conduct

with both victims continued despite court orders banning him from contacting them.

       When Buckley argued in the trial court that a denial of his motion for severance

would violate his right to testify, the court pointed out that his not being willing to testify

was not a bar to severance under the United States Supreme Court precedent. The court

correctly repeated that notion. "The criminal process, like the rest of the legal system, is

replete with situations requiring 'the making of difficult judgments' as to which course to

follow. [Citation.] Although a defendant may have a right, even of constitutional

dimensions, to follow whichever course he chooses, the Constitution does not by that

token always forbid requiring him to choose. The threshold question is whether

compelling the election impairs to an appreciable extent any of the policies behind the

rights involved." (McGautha v. California (1971) 402 U.S. 183, 213.) Here, the choice

Buckley faced was between testifying about M.L. and not testifying about K.C., with the

attendant risk that the jury would question that decision and cast doubt on the charges

regarding K.C., or not testifying at all. But Buckley has not shown that the choice he

faced impaired his right to testify to any appreciable extent. We have no basis for

concluding he suffered a violation of his constitutional rights by the court's denial of his

motion for severance.



                                              18
                                                  IV.

                                 Claim of Prejudicial Misconduct

       Buckley contends a victim-witness advocate who assisted M.L. at trial committed

misconduct that deprived him of a fair trial. Specifically, he contends the victim-witness

advocate "comment[ed] to [M.L.], within earshot of the jury, that [M.L.] was 'doing a

good job' in testifying for the prosecution. [Citation.] This is precisely the type of

vouching by insinuation that has long been condemned by the courts." He adds: "This

vouching by insinuation from a member of the prosecution's office carried with it an

enormous potential to improperly influence the jury. And [the victim-witness advocate's]

question to [M.L.] whether she was in counseling goes to the central issue in [M.L.'s]

case, i.e., whether she developed a fear of [Buckley] and whether that fear was

'reasonable.' "

A. Background

       One day during trial, defense counsel alerted the court that during a sidebar

conference, the victim-witness advocate was seen talking to M.L. within view of the

jurors. The court asked the victim-witness advocate about the matter, and she replied, "I

was just supporting [M.L.], just telling her she's doing a good job, asked her if she was in

counseling. Just very benign conversation. Talked nothing about the case." The court

told the victim-witness advocate it had a problem with that conduct, and directed her to

cease it.

       Defense counsel moved for a mistrial based on the victim-witness advocate's

conduct, but the court denied the motion. The court instead gave the jury this curative

                                             19
instruction that both counsel approved: "When the attorneys and I were outside the

courtroom during a sidebar conference yesterday afternoon, the person who was

employed by the district attorney's office as a victim-witness advocate was allowed to

approach [M.L.] while she was on the witness stand, in order to provide her with some

comfort and support—or comfort and encouragement. That should not have happened.

While the D.A. advocate's job includes providing comfort and encouragement to

witnesses, that function should not occur in the presence of the jury. [¶] You are to

decide this case based on your assessment of the testimony of all the witnesses, and all of

the evidence presented[,] not on the basis of any passion or prejudice you may have

formed. I know that it is difficult to forget something that occurs in your presence, but

for the sake of the defendant's right to a fair trial, I'm requesting that you disregard—you

disregard that conduct. You regard it simply as improper, put it aside while you're

deliberating. You are to disregard anything in its entirety that was said by either the

advocate or the witness while court was not in session. It is not evidence and you may

not consider it for any purpose. [¶] Now if anyone cannot follow my request then I need

to be alerted to that fact[,] and you can write it on a note and give it to the bailiff." The

court later reported that no juror ever notified it of any problem in following the curative

instruction.

B. Analysis

       Section 868.5 entitles the victim of certain crimes to the presence of a support

person to accompany him or her to the witness stand. "The court has the duty to use its

good judgment to curtail any unnecessary actions by the support person which might

                                              20
sway or influence the victim-witness or jury." (People v. Patten (1992) 9 Cal.App.4th

1718, 1732; accord, People v. Myles (2012) 53 Cal.4th 1181, 1214.) Here, in the exercise

of its discretion, as soon as the court became aware of the victim-witness advocate's

offending conduct, it instructed the jury with a comprehensive curative instruction that

reminded the jury to focus on the trial evidence and disregard extraneous matters. The

instruction also told the jurors to alert the court if they could not comply with the

instruction. It is generally assumed that a curative instruction is effective unless the

misconduct resulted in a miscarriage of justice. (People v. Lucero (1988) 44 Cal.3d

1006, 1023.) Here, the court received no indication that any juror failed to comply with

the instruction. Jurors are presumed to understand, accept, and faithfully follow

instructions. (See People v. Homick (2012) 55 Cal.4th 816, 866-867.) We conclude that

any prejudice from the witness-advocate's conduct was dispelled by the curative

instruction.

                                                  V.

       The Court Erred by Sentencing Buckley on Counts 1, 2 and 3

       Relying on People v. Muhammad (2007) 157 Cal.App.4th 484 (Muhammad)

Buckley contends: "The amended information improperly charged [him] with violating

. . . section 646.9, subdivision (b), which is a penalty provision, not a substantive crime,

and the resulting convictions were therefore improper." Buckley argues the only




                                             21
convictions that can stand are those for simple stalking alleged in counts one and six.6 In

his reply brief, Buckley claims: "[T]he prosecution's decision to divide the charges into

smaller time frames in a long series of events does not change the fact that the charges

involved a continuous course of conduct as there was no event that interrupted that series

of acts."

A. Background

         In sentencing Buckley consecutively, the court reasoned: "While the offenses that

occasioned the—restraining order in the first instance and the offenses which support the

conviction for count 1 are exceptionally aggravated, . . . notwithstanding the fact that Mr.

Buckley was informed by the court by the service of court process that he was not to

continue to contact [M.L.] and that she wanted nothing to do with him, the violations of

the restraining order [under section 646.9, subdivision (b)], both after the temporary and

after the permanent restraining order, places this in a whole different level of aggravation.

[¶] Maybe you didn't get it before, but how can you not get it after someone goes to

court, gets the process, serves you with that process, and in no uncertain terms does not

want contact? [¶] And that's what aggravates this case. . . . [T]he fact that they are

separate times and . . . separate distinct events makes this a consecutively-sentenced

case."

         The court rejected the applicability of Muhammad, supra, 157 Cal.App.4th 484:

"[That case] was one series of events that was charged in three different ways. Here, we


6      Buckley does not challenge his conviction for his stalking of K.C. (count 6);
therefore, we do not address that portion of the sentence imposed.
                                             22
have three different charges coming out of a time span, each is a distinctive [time] span

for the charge, and the establishment of the offense was . . . provided separately and

apart."

B. Legal Principles

          The offense of stalking is defined in section 646.9, subdivisions (a) through (d),

with each subdivision providing for a different punishment depending on the attendant

circumstances. The statute defines, and prescribes particular punishments, for simple

stalking (§ 646.9, subd. (a)); stalking in violation of a court order (§ 646.9, subd. (b)); and

stalking after having been convicted of specified felonies (§ 646.9, subd. (c)). The

elements of stalking are repeatedly following or harassing another person, and making a

credible threat with the intent to place that person in fear. (§ 646.9, subd. (a));

Muhammad, supra, 157 Cal.App.4th at p. 493, fn. 8.) Simple stalking is a lesser included

offense of stalking in violation of a court order because the latter offense necessarily

constitutes a commission of the former offense. (Id. at p. 490, fn. 6.) Further, the

stalking statute has been construed as defining a single offense, albeit with different

associated penalties under each subdivision. (Id. at pp. 490-492.)

          "[I]t is true that section 646.9, subdivisions (a) and (b) are to be read together.

However, it is not the language of subdivision (a) and the language of the restraining

order which must be harmonized; it is that defendant's behavior must have violated both

subdivision (a) and the order. If the defendant's conduct constitutes repeated following or

harassment [citation] and defendant has made a credible threat, then defendant has

violated subdivision (a). If the same conduct is also prohibited by an existing restraining

                                                 23
order against the defendant, then the defendant has violated subdivision (b). Thus,

subdivision (b) serves the manifest legislative purpose of providing enhanced punishment

to those stalkers who have been ordered to refrain from such conduct in civil

proceedings, and, hence, have been warned that their behavior is unacceptable." (People

v. McClelland (1996) 42 Cal.App.4th 144, 152.)

       Also, stalking is viewed as a continuing offense because it requires repeated

following or a course of harassing conduct. (§ 646.9, subds. (a), (e), (f) [stalking crime

committed by "person who willfully, maliciously, and repeatedly follows or willfully and

maliciously harasses another person"; " 'harasses' means engages in a knowing and

willful course of conduct"; " 'course of conduct' means two or more acts occurring over a

period of time, however short, evidencing a continuity of purpose"]; People v. Chilelli

(2014) 225 Cal.App.4th 581, 586.)

C. Analysis

       Here, the record establishes but one continuous criminal act of stalking that

Buckley committed against M.L., starting in November 2010 and ending in September

2012. Nevertheless, the prosecution divided this time period into three different counts,

thus subjecting Buckley to multiple convictions for the single offense of stalking. As

alleged in the amended complaint, the stalking of M.L. in each count was immediately

followed by the stalking of her in the successive counts, with no significant break in time

to indicate that one continuous course of stalking had ended and a new one had begun.

"A continuous course of conduct crime is not completed by a discrete act; the continuous

course of conduct is complete when the last criminal act is performed." (People v.

                                             24
Chilleli, supra, 225 Cal.App.4th at p. 585; accord, People v. Lewis (1978) 77 Cal.App.3d

455, 459-461 [only one conviction of pimping based on ongoing conduct with the same

prostitute during a five-year period].) We conclude Buckley could properly be convicted

of only one charge of stalking of M.L.

       Here, the People argue the separate stalking convictions "made sense because each

of the three counts represented qualitatively different courses of conduct." But as the

court stated in People v. Lewis, supra, 77 Cal.App.3d at p. 462, "It is no answer to

suggest, as does the Attorney General, that defendant's extensive culpability justified

multiple counts and multiple convictions," adding, "[h]owever, the seriousness of the

crime and defendant's culpability can be and should be appropriately dealt with by the

trial court at the time of sentence."




                                            25
                                         DISPOSITION

       We vacate the conviction and sentence on count 1 (Pen. Code, § 646.9, subd. (a))

and count 2 (Pen. Code, § 646.9, subd. (b)). In all other respects the judgment is

affirmed. The matter is remanded to the Superior Court to resentence Thomas Conaty

Buckley accordingly and prepare an amended abstract of judgment and forward a

certified copy of it to the Department of Corrections and Rehabilitation.




                                                                            O'ROURKE, J.

WE CONCUR:


McINTYRE, Acting P. J.


IRION, J.




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