Filed 7/20/16 P. v. Martinez CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



THE PEOPLE,                                                                                  C075035

                   Plaintiff and Respondent,                                   (Super. Ct. No. CRM13-2101)

         v.

JUAN MANUEL MARTINEZ,

                   Defendant and Appellant.




         A jury found defendant Juan Manuel Martinez guilty of stalking and violating a
court order (Pen. Code, § 646.9, subd. (b)),1 two counts of contempt of court by
contacting persons protected by a court order (§ 166, subd. (c)(1)), and violating a
protective order (§ 273.6, subd. (a)). The trial court sentenced defendant to an aggregate




1        Undesignated statutory references are to the Penal Code.

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term of four years four months in state prison. On appeal, defendant contends there was
insufficient evidence to sustain any of his convictions. We affirm.
                                     BACKGROUND
       A. Defendant and Irma’s Marriage
       Defendant and Irma Martinez were married for 15 years. They lived in Winters,
California, with their three children. During their marriage, defendant was a drug addict
and he refused to get treatment for his addiction. In October 2012, the trailer in which
they were living was rendered uninhabitable by a fire. Irma and the children moved in
with Irma’s parents, without defendant.
       Between December 2012 and April 2013, Irma drove by the trailer every day on
her way to work and could see that defendant was living in the trailer. In March 2013,
Irma filed for a divorce.
       B. Mariani Nut Company
       Between 2005 and early 2011, defendant did seasonal work for the Mariani Nut
Company (Mariani). Irma worked for Mariani consistently for approximately 18 years.
Depending on Mariani’s needs, Irma would be sent to work at any one of Mariani’s
multiple properties in Winters. During “nut season,” Irma worked primarily at the
Dutton facility. If there was a problem with almonds, Irma would go to the Buckeye
facility. If there was a problem with a full-time employee, Irma would report either to the
East Baker Street office or the Edwards Street office. If there was an employee meeting
or a personnel problem with a temporary employee, she would go to the Abbey Street
office (the Abbey office).
       The Abbey office is a three- or four-minute walk from the Dutton facility and
three blocks from the Baker facility; mandatory safety meetings are held at the Abbey
office twice a month for all Mariani employees. In addition, Horizon Personnel Services
(Horizon) is located in the Abbey office. Horizon is the only employment agency that
recruits and hires employees for Mariani; they do not recruit or hire for any other

                                             2
employer from that location.2 Outside the front door to the Abbey office is a sign which
reads “Horizon Personnel Services” and another “big banner” next to the office with the
Mariani logo on it. There is also a board outside the office that says Horizon hires for
Mariani and a separate board outside the adjacent buildings, which reads “Mariani Nut
Company.”
       C. Defendant’s Conduct and Resulting Restraining Orders
       After Irma moved in with her parents, defendant began threatening her; he told her
the brakes could fail in her car or her parents’ car. Between October 2012 and January
2013, defendant showed up daily at the Mariani facility on Dutton Street in order to find
Irma. Irma’s coworker, Josefina Tobar, saw that defendant would wait for Irma by her
car and would sometimes get into Irma’s car even after Irma told him not to. Other
times, Josefina’s husband would drive Josefina and Irma home from work because
defendant would tell Irma that he would see her “on the way out” of work.
       Defendant went to Irma’s parents’ house day and night, knocking on her window
and refusing to leave. Defendant called Irma “[a] lot”; if Irma did not answer her phone,
defendant would go looking for her. Irma told defendant to stop coming to the house and
to stop calling. Irma’s father also told defendant to stop coming to the house. One of
defendant and Irma’s sons even called the police. But defendant continued to show up
and continued to call.
       Irma was afraid of defendant. To protect herself she sought a restraining order
against him and received permission from Mariani to park her car inside the Mariani
facilities when she worked at night. A “temporary restraining order” against defendant
was issued on January 17, 2013, (January 17 DVRO) and a hearing was set on



2     Horizon hires temporary employees who then become full-time employees
depending on production needs. If a full-time position was available and someone
wanted to apply for that position, he or she would go to the Baker facility.

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February 4, 2013, for a permanent restraining order. Defendant was not immediately
served with the January 17 DVRO.
       On January 22, 2013, when Irma picked up one of their children from school,
defendant was at the school. Defendant got into Irma’s car uninvited. Not wanting to
fight in front of the child, Irma drove defendant to their uninhabitable trailer where
defendant was living, but he refused to get out of the car. Defendant demanded Irma take
him to her parents’ house but she refused. Eventually, defendant got out of Irma’s car
and tried to remove the air from the tires. Irma then got out of the car, handed her phone
to their son and told him to call the police, which he did. Defendant went inside the
trailer, retrieved a bottle of wine, and poured the wine on Irma’s car. Defendant then
went back to the trailer and held up a lighter. Irma and her son were afraid that defendant
was going to set the car on fire with them inside.
       On January 25, 2013, defendant approached Irma as she was walking toward her
car after work. Irma told defendant he could not be there that she had a restraining order
against him. She told defendant to leave or she would call the police. Then, as she
reached for her phone, defendant lunged at Irma, struggled with her, and took her phone.
Irma shouted to a coworker to call the police. Yolo County Sheriff’s Deputy Matthew
Marton soon arrived and arrested defendant. Deputy Marton also served defendant with
the January 17 DVRO.
       On two other occasions in January or February 2013, defendant had to be taken
from Mariani property by the police. On one occasion defendant snuck in to Mariani’s
Dutton facility through a back door; the police were called. The police were called again
when defendant was found in the parking lot at the Dutton facility, standing outside of
Irma’s car, and Irma was inside the car honking her horn. According to a coworker, Irma
appeared to be scared. Afraid of defendant, Irma asked her employer, Mariani, to obtain
a restraining order as well.



                                              4
        On January 29, 2013, a criminal protective order issued (January 29 CPO); it too
protected Irma and the children from defendant through conduct and stay-away orders.
The January 29 CPO was set to expire on April 14, 2014. Defendant was served a copy
of that order at the hearing on January 29, 2013.
        On February 5, 2013, following a hearing, a domestic violence restraining order
was issued against defendant (February 5 DVRO).3 Defendant was present at that
hearing, thus no further service was required. The February 5 DVRO protected Irma, as
well as her children, and included stay-away and conduct orders. Included in the stay-
away orders were orders that defendant stay 100 yards away from Irma’s workplace and
the children’s schools.
        Mariani also petitioned for a “workplace violence prevention” temporary
restraining order against defendant. On February 8, 2013, the trial court granted
Mariani’s request (February 8 WVRO). The February 8 WVRO protected Irma and her
children and included numerous conduct and stay-away orders. Pursuant to that order,
defendant was ordered not to “enter the workplace of the employee [i.e., Irma].”
Defendant also was ordered to stay at least 100 yards away from “the employee’s . . . jobs
or workplaces.” On February 21, 2013, and again on March 6, 2013, the February 8
WVRO was reissued and new hearing dates set. Defendant was served with each of these
orders on February 22, 2013, and March 7, 2013, respectively.
        On February 8, 2013, defendant appeared at his son’s middle school and asked the
school secretary if he could speak to his son. The secretary knew a restraining order was
in place prohibiting defendant from being on campus or being within 100 yards of his
son. She called the police. Winters Police Sergeant Jose Ramirez responded to the
secretary’s call. Defendant told Sergeant Ramirez he was there to see his son and to give



3       The order was signed on February 4, 2013, but was not filed until February 5,
2013.

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him a watch. Sergeant Ramirez reminded defendant he was subject to a restraining order
and was not allowed to be there. Defendant said he thought the restraining order applied
only to Irma. Sergeant Ramirez arrested defendant and took him into custody. Irma was
notified of the incident by a school administrator; defendant’s presence at the school
scared Irma.
        On March 28, 2013, Irma and Maria Castro, a member of Mariani’s human
resources department, were in court when defendant was sentenced in a related matter.
At that time, the court issued another CPO (March 28 CPO). The March 28 CPO ordered
defendant to remain 100 yards away from Irma and their children and to stay away from
two specific locations: “803 Grand Ave Space #8 Winters CA 95694” (the parties’
trailer) and “1005 Ho[o]ver St. Winters CA 95694” (the home of Irma’s parents). The
trial court stated on the record that the March 28 CPO included an order that “[defendant]
stay away from [Irma’s] workplace, so the criminal protective order that the Court just
signed would keep him away from [Irma’s] workplace as long as she works there. [¶]
. . . [¶]
        “[] Sounds to me like the criminal protective order protects not only [Irma] but her
workplace.” The trial court further ordered defendant to have no contact with Irma or
their children.
        Following that hearing, while defendant was still in court, Castro asked the court
to issue a permanent WVRO. Defendant objected to the order but the court ruled: “I am
prepared to follow up with the restraining order by issuing a preliminary injunction which
would prohibit [defendant] from coming on the property of Mariani Nut Company in
Winters.” The court then advised Castro: “I’m not issuing a permanent injunction at this
time. If you wish to get a permanent injunction, you should schedule this for a hearing in
the civil department, and the court will consider that.”
        That same day, Castro obtained a permanent WVRO for Mariani (March 28
WVRO) from a different judicial officer. She later testified that she pursued the

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permanent order at Irma’s request, and to protect Irma and her children from defendant.
Castro’s intent in obtaining the order was to keep defendant away from “[a]ll of Mariani
property.” The March 28 WVRO thus specifically included an order that defendant not
“[e]nter [Irma’s] workplace” and defendant must stay at least 100 yards away from
“[Irma’s] workplace.”4 The March 28 WVRO also included an order that defendant stay
away from the parties’ trailer and Irma’s parents’ home. Defendant was not present at the
hearing when the trial court issued the March 28 WVRO.
       Shortly thereafter, defendant appeared at the Abbey office to apply for a job with
Mariani. Then, on April 5, 2013, Irma saw defendant at their trailer; she drove
immediately to the Winters Police Department. Irma was angry that defendant was at the
trailer. Irma gave Corporal Albert Ramos a copy of the CPO and told him that she
wanted to clean the trailer but did not feel safe because defendant was there; he
confirmed the order with “dispatch.”
       Corporal Ramos drove to the trailer and knocked on the door; defendant answered.
Ramos advised defendant that he could not be on the property and was in violation of the
court’s order. Defendant admitted he had a copy of the order, but he had not read it.
Ramos “re-advised” defendant of the restraining order and further advised him that,
because the trailer was posted “uninhabitable,” no one was supposed to be living there.
Defendant did not respond; Ramos arrested him.
       A few days later, on April 8, 2013, defendant returned to the Abbey office and
spoke with Cristina Alvarez, a Horizon employee who hires temporary employees for
Mariani. Alvarez knew defendant was not supposed to be there so she contacted Castro
and stalled defendant by giving him a job application. Castro contacted law enforcement.
Officer Justin Wilson responded to the call. He later testified that he remembered the



4       Castro testified that she was at the hearing on the March 28 WVRO and, according
to her testimony, the court issued the order to include all of the Mariani properties.

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WVRO prohibited defendant from being on any of the Mariani properties in Winters.
When Officer Wilson arrived at the Abbey office, defendant was filling out the job
application. Officer Wilson arrested defendant.
       Irma continued to be afraid that defendant would harm her because “he wasn’t
obeying the restraining order and he kept on doing this.”
       D. Criminal Charges, Jury Trial, and Sentencing
       The People subsequently charged defendant with felony stalking (§ 646.9, subd.
(a); count 1), felony stalking and violating a court order (§ 646.9, subd. (b); count 2),
misdemeanor contempt of court by contacting persons protected by a court order (§ 166,
subd. (c)(1); counts 3 & 4), and misdemeanor violation of a protective order (§ 273.6,
subd. (a); count 5). Defendant plead not guilty.
       A jury found defendant guilty of counts 2 through 5, and the court declared an
acquittal on count 1. The trial court later sentenced defendant to an aggregate term of
four years four months in state prison. Defendant appeals.
                                       DISCUSSION
       Defendant contends there is not substantial evidence supporting his convictions for
stalking and violating court orders. We are not persuaded.
       “In reviewing a claim of insufficient evidence, we review the record in its entirety,
considering the evidence most favorably to the prevailing party, and determine whether
any rational trier of fact could have found the prosecution proved its case beyond a
reasonable doubt. [Citation.]” (People v. Zavala (2005) 130 Cal.App.4th 758, 766.) In
making this assessment, we draw all reasonable inferences from the record in support of
the judgment and do not weigh the evidence or decide the credibility of the witnesses.
(People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
       A. Stalking
       Defendant argues there is not sufficient evidence of stalking because that offense
requires a course of conduct established by two or more acts and here, he contends, there

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are no qualifying acts between April 5, 2013, and April 8, 2013.5 He reaches this
conclusion by claiming that while “his actions from November 2012 through the end of
January, 2013, would be sufficient to constitute harassment under the stalking statute,”
the People did not charge him for those acts and those acts cannot be relied upon to
convict him for his nonharassing conduct between April 5, 2013, and April 8, 2013.
Defendant’s argument is unavailing.
       The elements of stalking are: “(1) following or harassing another person;
(2) making a credible threat; and (3) intending to place the victim in reasonable fear for
her safety.” (People v. Uecker (2009) 172 Cal.App.4th 583, 594; § 646.9.) Harassing
another person is directing a “course of conduct . . . at a specific person that seriously
alarms, annoys, torments, or terrorizes the person.” (§ 646.9, subd. (e).) Defendant’s
argument relies on ignoring his pattern of conduct and isolating the final incidents in
April 2013 that gave rise to the charges here.
       It is, however, the entirety of the course of conduct that must be harassing, not
each individual act within the course of conduct. That is, taken separately the acts need
not be terrorizing or alarming, if when taken as a course of conduct, they rise to that level
on a cumulative basis. (§ 646.9, subds. (e) & (f); People v. Culuko (2000)
78 Cal.App.4th 307, 325.) Furthermore, it is not necessary that each individual act
making up the course of conduct contain within it a credible threat. Rather, at some point
in the course of conduct, a singular credible threat must be made. That threat may even
be implicit in the pattern of conduct. In assessing the course of conduct and whether a




5      Defendant focuses a great deal of his commentary here on the People’s closing
argument at trial. He argues the prosecutor did not understand the stalking law and gave
the jury wrong information. Defendant does not, however, raise any claim of
prosecutorial misconduct or error in the closing argument. Nor does defendant argue the
jury was not properly instructed on the crime of stalking. Defendant argues only that
there was insufficient evidence. Consequently, that is what we address.

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threat occurred, we must consider the “entire factual context, including the surrounding
events.” (People v. Falck (1997) 52 Cal.App.4th 287, 298; accord, People v. Uecker,
supra, 172 Cal.App.4th at p. 598, fn. 10.)
       Viewing the evidence in the light most favorable to the verdict and in its entirety,
we find there is substantial evidence supporting defendant’s conviction for stalking Irma.
       Beginning in October 2012, defendant engaged in a campaign of harassment
against Irma. Indeed, defendant acknowledges as much in his opening brief. Defendant
threatened Irma and her parents by suggesting the brakes could fail in their cars.
Defendant threatened Irma and their son when he poured wine over her car then held up a
lighter. Between October 2012 and January 2013, defendant repeatedly showed up at
Irma’s parents’ house and her workplace, despite her repeated demands that defendant
leave her alone. Defendant repeatedly called Irma and if she failed to answer her phone,
defendant went looking for her.
       Irma would get rides home from work because she was afraid to run into
defendant in the parking lot. She even sought permission to park inside Mariani’s
facilities so defendant could not confront her in the parking lot as she walked to her car.
Defendant even physically assaulted Irma in the parking lot of her workplace, grabbing
her cell phone when she said she would call the police.
       Defendant also repeatedly violated the court’s restraining orders. Shortly after
defendant was served with an order prohibiting him from contacting Irma and their
children, defendant went to their son’s school in violation of the order. Police were
called twice to remove defendant from Irma’s workplace in January or February 2013,
after an order was issued prohibiting defendant from going to Irma’s workplace. And he
continued to go to the Abbey office to find work despite an order requiring him to stay
away from Irma’s workplace.
       When considered in the context of that behavior, it was reasonable for the jury to
conclude that defendant’s appearances at the parties’ trailer on April 5, 2013, and then at

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Irma’s workplace on April 8, 2013, both in violation of court orders, were part of a
pattern of conduct by defendant which Irma found seriously alarming or annoying. (See
People v. Zavala, supra, 130 Cal.App.4th at p. 767.)
       Defendant argues there was no evidence that his conduct on April 5 and April 8
caused Irma to be afraid. We disagree. Irma testified she was afraid of defendant.
Moreover, it is evident from the record that defendant’s pattern of conduct caused Irma to
be afraid of him. Not only did Irma seek multiple restraining orders in an effort to protect
herself from defendant, she even asked Mariani to get its own restraining order to keep
defendant from coming to her workplace.
       Defendant also argues his appearances at the parties’ trailer and at the Abbey
office do not constitute stalking behavior because he was there with a legitimate purpose:
to find shelter and employment. Defendant has a right to find shelter and employment,
but not at places various courts judicial officers repeatedly and successively ordered him
to avoid.
       Considering the entire context of the case, the history between the parties,
defendant’s course of conduct of threatening Irma and repeatedly showing up at Irma’s
home, the parties’ trailer, Irma’s workplace, and the children’s school, often in spite of a
restraining order, it was reasonable for the jury to conclude defendant’s conduct
constituted harassment as defined in the stalking statute. Accordingly, there was
substantial evidence to support the stalking conviction.
       B. Violating Court Orders
       Defendant further contends there is insufficient evidence he violated the court’s
orders, as alleged in counts 4 and 5. In count 4, defendant was charged with contempt of
court for violating a criminal protective order “[o]n or about April 8, 2013.” (§ 166,
subd. (c)(1).) In count 5, defendant was charged with knowingly violating a protective
order “[o]n or about April 8, 2013.” (§ 273.6, subd. (a).) Defendant argues the evidence
presented at trial was insufficient to prove he “intentionally, knowingly or willfully

                                             11
violated the court orders” by going to the Abbey office on April 8, 2013. We are not
persuaded.
       1. There was sufficient evidence the March 28 CPO included an order that
          defendant stay away from Irma’s workplace.
       Defendant argues there was insufficient evidence to convict him of violating a
criminal protective order on April 8, 2013, as alleged in count 4, because the operative
criminal protective order was the March 28 CPO and the March 28 CPO did not include
an order that defendant stay away from Irma’s workplace. Rather, the March 28 CPO
required only that defendant remain 100 yards away from Irma and the parties’ children.
Because neither Irma nor their children were at the Abbey office on April 8, 2013,
defendant argues he could not have violated the March 28 CPO. The record does not
support defendant’s claim.
       A page is missing in the appellate record from the March 28 CPO and the first
page does not include an order prohibiting defendant from going to Irma’s workplace. At
the March 28 hearing, however, the trial court made it clear from the bench that the
March 28 CPO included an order that required “[defendant] stay away from [Irma’s]
workplace, so the criminal protective order that the Court just signed would keep him
away from [Irma’s] workplace as long as she works there. [¶] . . . [¶]
       “[] Sounds to me like the criminal protective order protects not only [Irma] but her
workplace.”
       Thus, reviewing the record as a whole, we conclude there was sufficient evidence
for the jury to find the March 28 CPO included an order that defendant stay away from
Irma’s workplace.




                                            12
      2. There is sufficient evidence to support the jury’s finding that the Abbey office
          was a part of Irma’s workplace, protected by the March 28 orders, and
          defendant knew it was part of Irma’s workplace.
      Defendant also argues there was insufficient evidence to convict him of violating
either the March 28 CPO or the March 28 WVRO because the Abbey office was not
protected as part of Irma’s workplace. Reviewing the evidence in a light most favorable
to the judgment, as we are required to do, we conclude there was sufficient evidence from
which the jury could find the Abbey office was a part of Irma’s workplace, protected by
both March 28 orders, and that defendant knew it was a part of Irma’s workplace.
      According to trial testimony, Irma’s workplace included multiple locations
including the Dutton facility, the Baker facility, and the Abbey office. The Abbey office
was where mandatory safety meetings were held for all Mariani employees and where
Irma would go if there was a problem with a temporary employee. The Abbey office also
housed the Horizon employment agency, whose sole function at that site was to hire
temporary employees for Mariani. Outside the front door of the Abbey office was a sign
which read “Horizon Personnel Services.” There was also a banner with the Mariani
logo on it, a “board” that read “Mariani Nut Company,” and another board indicating
Horizon hires for Mariani. Viewed in a light most favorable to the judgment, we
conclude this is sufficient evidence from which the jury could find the Abbey office was
part of Irma’s workplace.6
      There also was sufficient evidence from which the jury could find defendant knew
the Abbey office was part of Irma’s workplace. During their 15-year marriage, Irma




6       The parties talk of the “Mariani properties.” This prompts unnecessary confusion.
The order says defendant is to stay away from Irma’s “workplace,” thus, because the jury
implicitly concluded defendant knew the “Mariani properties,” including the Abbey
office, comprised Irma’s “workplace,” he was precluded from being there and knew it.

                                            13
worked exclusively for Mariani and for several years, defendant did seasonal work for
Mariani. Indeed, defendant continued going to the Abbey office trying to get seasonal
work with Mariani after he and Irma separated. It was, therefore, reasonable for the jury
to presume defendant knew the Abbey office was where Mariani safety meetings were
held and the office where Mariani’s temporary employees were hired and managed, and
thus, was part of Irma’s workplace.
       Defendant further argues the order is unconstitutionally vague if it was intended to
protect any “unspecified properties.” Defendant’s argument fails because a conviction
for violating the order requires that he “knowingly and intentionally” violate the order. If
defendant did not know the Abbey office was a part of Irma’s workplace, he could not
have been convicted of violating either order.
       In sum, we find the evidence was sufficient to convict defendant of violating both
the March 28 CPO and the March 28 WVRO, as alleged in the information. Additionally,
we note our concern regarding the facts of this case. Over more than six months,
multiple judicial officers issued numerous protective orders in an effort to protect Irma
and her family. Defendant repeatedly violated those orders. This is a story we hear all
too often. Irma and her family were lucky no greater harm came to them, not all victims
are so lucky. It is of great concern that those who violate protective orders are not
routinely prosecuted after the first violation. Waiting for multiple violations before
charging a defendant with criminal conduct puts the victims, including children, at
greater risk. Whether this problem is one that must be addressed at the legislative level
or in prosecutors’ offices, it is an issue that must be addressed.




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                                 DISPOSITION
     The judgment is affirmed.



                                               NICHOLSON   , Acting P. J.



We concur:



     MAURO              , J.




     HOCH               , J.




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