Filed 8/19/14 P. v. Jordan CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR



THE PEOPLE,                                                          B250541

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA056027)
         v.

RICKY TYREE JORDAN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Bernie C. Laforteza, Judge. Affirmed as modified.
         Steven A. Brody, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Blythe J.
Leszkay and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and
Respondent.
      In the underlying action, appellant Ricky Tyree Jordan was convicted of
several offenses, including two counts of criminal threats and one count of
stalking. After identifying one of the criminal threats counts as the principal
count, the trial court imposed unstayed consecutive terms on the stalking count
and the remaining criminal threats count. Appellant contends the imposition of
                                                                                  1
unstayed punishment for those offenses contravened Penal Code section 654. In
addition, respondent maintains that the court failed to order certain mandatory
fees. We conclude that the court correctly imposed unstayed punishment on the
stalking and criminal threats counts, but erred in failing to order the fees
respondent has identified. We therefore modify the judgment to correct that error,
and affirm it as modified.



                          RELEVANT PROCEDURAL HISTORY

      On May 18, 2012, an information was filed, charging appellant Ricky Tyree
Jordan with several offenses against Tiana Polar. The information alleged in
count 1 that between April 1 and 2, 2012, appellant engaged in stalking (§ 646.9,
subd. (a)); in count 2, that on April 19, 2012, he made criminal threats (§ 422,
subd. (a)); in count 3, that on January 2, 2012, he inflicted corporal injury on a
spouse, cohabitant, or child’s parent (§ 273.5, subd. (a)); in count 4, that on April
8, 2012, he made criminal threats (§ 422, subd. (a)); and in counts 5 and 6, that on
April 19 and 22, 2012, he engaged in criminal vandalism (§ 594, subd. (a)).
Accompanying counts 1 through 4 were allegations that he had suffered three prior
convictions for purposes of the “Three Strikes” law (§§ 667, subds. (b) - (i),


1
      All further statutory citations are to the Penal Code.


                                             2
1170.12, subds. (a) - (d)), and had served a prison term (§ 667.5 subd. (b)). ~CT
34)~ Appellant pleaded not guilty and denied the special allegations.
      The trial was bifurcated regarding appellant’s prior convictions. At the
beginning of trial, the information was amended to allege that the crime of stalking
(count 1) was committed between April 1 and 25, 2012. Appellant pleaded not
guilty to the amended information and denied the special allegations. Later,
following the presentation of the prosecution’s case-in-chief, count 6 was
dismissed, and the information was amended to allege that the crime of stalking
(count 1) was committed between April 8 and 25, 2012.
      A jury found appellant guilty as charged in counts 1, 2, 4, and 5. The jury
also found him guilty of simple assault, as a lesser included offense of the crime
charged in count 3. After appellant admitted the prior conviction allegations, the
trial court struck two of his three prior “strikes” under the Three Strikes law and
dismissed the prison term allegation. In addition, the information was amended to
include allegations that appellant had two prior convictions within the meaning of
section 667, subdivision (a), and appellant admitted those allegations.
      In sentencing appellant to a total term of imprisonment of 20 years and two
months, the trial court selected count 2 (the April 19, 2012 criminal threats) as the
principal count, imposed the upper term of three years, doubled that term pursuant
to the Three Strikes law, and added a five-year enhancement (§ 667, subd. (a)).
Regarding count 1 (the offense of stalking between April 8 and 25, 2012) and
count 4 (the April 8, 2012 criminal threats), the trial court declined to stay
punishment (§ 654). On each count, the court imposed a consecutive term of eight
months (one-third of the middle term) and doubled that term pursuant to the Three
Strikes law; furthermore, on count 4, the court added a five-year enhancement
(§ 667, subd. (a)). In connection with the remaining offenses, the court also


                                           3
imposed unstayed consecutive punishment, namely, six months on count 3 (the
assault), and 1 year on count 5 (the vandalism).


                                      FACTS
      A. Prosecution Evidence
      The key prosecution witness was Polar, who testified as follows: In 2011,
Polar worked for the Los Angeles County Housing Authority as a housing
inspector, and lived in an apartment in Lancaster with her two pre-teenage
children. Prior to August 2011, when appellant moved into Polar’s apartment,
they had been in a romantic relationship for more than two years. She became
pregnant, but suffered a miscarriage in October 2011. Following the miscarriage,
her relationship with appellant deteriorated, and they had many nonphysical
arguments. In late 2011, after Polar and appellant decided to break up, she gave
her landlord a 30-day notice in order to move out of the apartment at the end of
January 2012.
      On January 1, 2012, appellant accidently left his wallet in her car, and
became upset when he was unable to contact her to retrieve it. The following day,
while Polar cooked breakfast, appellant argued with her regarding the incident.
During the argument, appellant pushed Polar’s face against the top of the stove.
Polar ran upstairs, where appellant followed her, pushed her down on a bed, and
began strangling her. When he noticed that Polar’s daughter had entered the
room, he stopped. Polar told him to leave the house, and he did so. Although
Polar did not report the incident, police officers soon appeared at her door, and she
talked to them regarding it.
      Later, in January and February 2012, Polar’s relationship with appellant
continued to include some sexual contact. She moved in with her parents, but


                                          4
sporadically slept in her apartment until the end of January 2012. There, she
sometimes saw appellant, who also had access to the apartment. According to
Polar, her sexual relationship with appellant ended in February 2012.
      In late February or early March 2012, when Polar moved into a new
apartment, she did not tell appellant because she feared him. In March 2012,
appellant began making up to 30 phone calls per day to her. During the phone
calls, he engaged in “yelling and screaming,” and told her that he would “show up
wherever [she] was.” In an effort “to diffuse the situation,” Polar occasionally
visited the barbershop where appellant worked, and sometimes called him in
response to his phone messages. She also encountered him at a restaurant they
frequented.
      In April 2012, appellant began appearing without invitation at Polar’s
workplace and apartment, even though she had not disclosed the apartment’s
location to him. On April 8, Polar and her children were celebrating Easter at the
home of the children’s grandmother. Uninvited, appellant arrived at the home,
bearing Easter baskets for the children. In an effort to reject the baskets without
causing “a scene,” Polar spoke to appellant outside the home. During their
conversation, appellant took a ham from the back seat of Polar’s car and threw it at
her. Later that day, appellant phoned Polar, and left the following message: “I’ll
be at your job in the morning ‘cause I’m off and I’m going to have my home girl
. . . , so you’re going to get your ass whooped in front of your job. . . . It’s over for
you. Fuck your life. This bitch is going to beat the shit out of you, nigga. This is
a real gang banger. She is going to beat the dog shit out of you.” Following the
April 8 incident, Polar obtained a temporary restraining order and took other
safety precautions.




                                            5
      From April 9 to 25, 2012, appellant continued to leave numerous phone
messages for Polar, recordings of which were played for the jury. The messages
stated that appellant’s “home girl” would “fuck [Polar’s] ass up” if she did not
stop playing “hardball”; that he had been “pushing this Crip shit since
motherfucking ’87”; that “once [he] g[ot] out of the car and start[ed] whooping
[Polar’s] ass . . . , [she would] know what’s it about;” and that he was “going to
fuck with [her] kids.” Appellant also stated his “home girl” had made a complaint
regarding Polar to her employer, and that he could fabricate a “[good story],”
namely, that Polar smoked “weed” while making house inspections. According to
Polar, someone later called her employer and made a complaint. She also testified
that appellant’s threats and references to gangs made her extremely fearful.
      At approximately 9:30 p.m. on April 19, Polar was in her apartment when
she heard appellant calling her name from the apartment parking structure. From
her window, she saw appellant pouring something on her car, and heard a cracking
noise. She called 911 and went to the parking structure, where she discovered that
appellant had poured detergent on her car and broken off its windshield wipers.
After Los Angeles County Deputy Sheriff Dustin Carr arrived at the structure,
appellant made a phone call to Polar, of which Carr recorded a portion. According
to Polar, appellant said that he was going to shoot her. During the recorded
portion of the call, appellant stated, “You see what my home girl did to your car[,]
bitch.” Later, appellant said, “[I]f you with the police, I’m going to shoot at you
too bitch, so if the police pull up[,] I’m busting.” Polar understood the call to
mean that he would shoot the police and her if she “sen[t] the police.” She further
testified that the call made her fearful.
      On April 22, Polar discovered the word “liar” scratched on her car. On
April 25, appellant left phone messages that a “red card” had been placed on a car


                                            6
at her workplace. Polar found the card, which contained a letter from appellant.
The letter stated that appellant’s sister was concerned regarding Polar’s safety, and
advised her to “watch [herself]” in her apartment. Polar was frightened by the
letter. She quit her job and moved out of California.
      Deputy Sheriff Carr testified that after 10:00 p.m. on April 19, 2012, he
responded to a call regarding Polar. After locating Polar in her apartment’s
structure, he saw that someone had torn off her car’s windshield wipers and
poured detergent on its windshield. While Carr examined the car, Polar received a
phone call that Carr overheard. After the caller said that he had a gun and
asserted, “I’ll get you, bitch,” Carr began to record the call.
      LeJean Walker testified that on April 19, 2012, he worked as a security
guard at Polar’s apartment complex. After learning that Polar’s car had been
vandalized, he spoke to Polar, who described appellant and her temporary
restraining order against him. Shortly after, while conducting a patrol, Walker saw
appellant driving a car off the apartment complex property. Approximately 20
minutes later, appellant reappeared on foot outside the complex’s gated entrance.
When Walker told appellant that he was not permitted on the property due to
                                                                       2
Polar’s restraining order, appellant entered his car and drove away.




2
       Aside from these witnesses, Shawn Kent, Polar’s former co-worker, testified that
in January 2012, he saw bruises on her neck. Later, at some point between January and
April 2012, appellant appeared at Kent’s and Polar’s workplace, asked to see Polar, and
placed some groceries in her car. Polar did not appear to want the groceries, and she
removed them from the car. Following the incident, Polar’s employer permitted her to
park close to her workplace entrance. Subsequently, Kent found a letter addressed to
Polar on a car parked near her workplace, and gave it to Polar.


                                           7
      B. Defense Evidence
      Thomas Brown testified that he operated the barbershop at which appellant
worked as a barber. According to Brown, from January to April 2012, Polar
                                                                3
visited appellant at the barbershop approximately 10 times.
      James Jones III and his girlfriend, Gabrielle Monroe, testified that on April
16, 2012, they were socializing with appellant at Medrano’s Restaurant. There,
appellant requested that Monroe use her cell phone to send to Polar a photo of him
and another female. Appellant made the request in a friendly manner, and
characterized the photo as a “joke.” As Jones, Monroe, and appellant were
preparing to leave the restaurant, appellant noticed that Polar was also present and
                          4
went to speak with her.
      Damion Smith testified that he had known appellant since 2006, and visited
appellant and Polar while they lived together. According to Smith, after appellant
and Polar broke up, he saw Polar at appellant’s apartment several times. On those
occasions, appellant and Polar acted like “a party couple,” were “always together,”
and watched sporting events. Smith also saw Polar make one or two visits to
appellant’s barbershop, including a visit in April 2012. Smith further testified that
on April 19, he and appellant were together in a nightclub from 9:00 to
           5
10:00 p.m.


3
       Anthony Purham, who worked at Gentlemen’s Barbershop, testified that Polar
made several visits to the barbershop during that period, and sometimes brought lunch for
appellant.
4
      Jones also testified that at some point from January to April 2012, he saw Polar
come to appellant’s apartment to pick up something.
5
     Smith acknowledged that in September 2012, he suffered a conviction for
commercial burglary.


                                            8
                                     DISCUSSION
       Appellant contends the trial court contravened section 654 in sentencing
him. After identifying count 2 (the April 19, 2012 criminal threats) as the
principal count, the trial court declined to stay the consecutive terms imposed on
count 4 (the April 8, 2012 criminal threats) and count 1 (the stalking from April 8
to 25, 2012). Appellant argues that section 654 precluded the imposition of
unstayed punishment on those counts. For the reasons discussed below, we
            6
disagree.


       A. Governing Principles
       Subdivision (a) of section 654 prohibits multiple punishment for “[a]n act or
omission that is punishable in different ways by different provisions of law . . . .”
Generally, when several counts are properly subject to section 654, a court must
identify the count carrying the longest sentence, including enhancements, and stay
the sentence imposed under the other pertinent counts. (People v. Kramer (2002)
29 Cal.4th 720, 722.) Thus, “[i]f . . . a defendant suffers two convictions,
punishment for one of which is precluded by section 654, that section requires the
sentence for one conviction to be imposed, and the other imposed and then
stayed.” (People v. Deloza (1998) 18 Cal.4th 585, 592.) However, multiple
punishment is proper if the defendant pursues suitably independent criminal
objectives. (People v. Williams (1992) 9 Cal.App.4th 1465, 1473-1474.)
“Whether the defendant held ‘multiple criminal objectives is primarily a question
of fact for the trial court, whose finding will be upheld on appeal if there is any


6
       As appellant asserts no challenge regarding the court’s identification of count 2 as
the principal count, we do not examine that aspect of appellant’s sentence.


                                             9
substantial evidence to support it.’ [Citations.]” (People v. Galvan (1986) 187
Cal.App.3d 1205, 1218.)
      Here, counts 1, 2, and 4 implicate a course of conduct. The test governing
the application of section 654 in such circumstances was first stated in Neal v.
State of California (1960) 55 Cal.2d 11, 19, overruled in part in People v. Correa
(2012) 54 Cal.4th 331, 334: “Whether a course of criminal conduct is divisible
and therefore gives rise to more than one act within the meaning of section 654
depends on the intent and objective of the actor. If all of the offenses were
incident to one objective, the defendant may be punished for any one of such
offenses but not for more than one.” Under the Neal test, “if the offenses were
independent of and not merely incidental to each other, the defendant may be
punished separately even though the violations shared common acts or were parts
of an otherwise indivisible course of conduct. [Citations.] If all the offenses were
incident to one objective, the defendant may be punished for any one of such
offenses but not for more than one. [Citation.]” (People v. Green (1996) 50
Cal.App.4th 1076, 1084-1085.)


      B. Criminal Threats (Count 4)
      We begin with the unstayed consecutive punishment for count 4 -- the April
8 criminal threats. After determining that count 2 -- the April 19 criminal threats
 -- constituted the principal count, the trial court declined to stay the consecutive
term imposed on count 4, as the court determined that it “occurred on a separate
occasion and with separate operative facts.” We see no error in that
determination.
      As we elaborate below (see pt. C., post), the criminal threats charged in
counts 2 and 4, together with appellant’s other threats and misconduct from April


                                         10
8 to April 25, constituted a course of conduct for purposes of the offense of
stalking, as charged in count 1. However, under section 654, “a course of conduct
divisible in time, although directed to one objective, may give rise to multiple
violations and punishment.” (People v. Beamon (1973) 8 Cal.3d 625, 639, fn.
11 .) As explained in People v. Gaio (2000) 81 Cal.App.4th 919, 935 (Gaio),
“[t]his is particularly so where the offenses are temporally separated in such a way
as to afford the defendant opportunity to reflect and to renew his or her intent
before committing the next one, thereby aggravating the violation of public
security or policy already undertaken. [Citation.]”
      That principle is applicable to temporally separated criminal threats. In
People v. Felix (2001) 92 Cal.App.4th 905, 909, the defendant made two death
threats separated by a two-hour interval, the first of which was aimed at a group of
people that included defendant’s former girlfriend, and the second of which was
directed solely at the former girlfriend. After the defendant was convicted on two
counts of criminal threats based on the two incidents, the trial court imposed
unstayed consecutive punishment for both crimes. (Id. at p. 915.) The appellate
court rejected the defendant’s contention that his sentence contravened section
654, reasoning that the defendant “had time to reflect before making the second
threat.” (People v. Felix, supra, at pp. 915-916; see also People v. Trotter (1992)
7 Cal.App.4th 363, 366-369 [unstayed consecutive terms properly imposed on
three counts of assault predicated on defendant’s successive gunshots at pursuing
police, as defendant had time to reflect between each shot].)
      We reach the same conclusion here. Although appellant’s two charged acts
of criminal threats were elements of a pattern of harassment directed at Polar, the
threats were separated by a period of 11 days, during which appellant had ample
time to reflect on whether he should issue another threat. The record thus


                                         11
discloses sufficient evidence to support the trial court’s imposition of unstayed
consecutive punishment.
       Appellant’s reliance on People v. Mendoza (1997) 59 Cal.App.4th 1333 is
misplaced. There, the defendant and his brother belonged to the Happy Town
street gang. (Id. at p. 1337.) When the defendant’s brother was charged with the
murder of a police officer, the defendant told a witness who had testified at his
brother’s preliminary hearing that the witness had “‘fucked up his brother's
testimony’” and that “‘[h]e was going to talk to some guys from Happy Town.’”
(Ibid.) After the defendant was convicted of criminal threats and dissuading a
witness, the trial court imposed unstayed punishment for each offense. (Id. at
pp. 1345-1346.) The appellate court concluded that the sentence contravened
section 654, as the record showed -- and the parties agreed -- that the two offenses
“arose from a single act.” (People v. Mendoza, supra, at p. 1346.) As explained
above, that is not the case here. In sum, the imposition of unstayed consecutive
punishment on count 4 -- the April 8 criminal threats -- did not contravene section
654.


       C. Stalking (Count 1)
       We turn to the unstayed consecutive punishment for count 1 -- the stalking
from April 8 to 25. After identifying count 2 (the April 19 criminal threats) as the
principal count, the trial court declined to stay the consecutive term for the
stalking, concluding that the offenses reflected different intents, occurred on
different occasions, and involved different operative facts. In view of the
principles discussed above, the court did not err in so ruling.
       Section 646.9 sets forth the elements of stalking. Subdivision (a) of that
statute states, “Any person who willfully, maliciously, and repeatedly follows or


                                          12
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, . . . is
guilty of the crime of stalking . . . . ” (Italics added.) The statute thus addresses
“two distinct behaviors,” repeated following and harassment. (People v. Heilman
(1994) 25 Cal.App.4th 391, 399.) The statute defines “harassment” as “engag[ing]
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,” and defines “course of conduct” as “two or more acts
occurring over a period of time, however short, evidencing a continuity of
purpose. . . . ”’ (§ 646.9, subds. (e), (f).)
       In closing arguments, the prosecutor advocated a theory of harassment-
based stalking. He noted that two criminal threats had been charged as discrete
crimes, but nonetheless maintained that all of appellant’s misconduct from April 8
to April 25 constituted the course of conduct for stalking. The prosecutor argued:
“Let’s talk about stalking. [¶] That is, essentially, why we’re here. You know, we
could have honestly . . . alleged 40 or 50 different criminal threats. We picked
two. We picked the April 8th call and picked the April 19th incident. We
probably could have alleged a lot more. [¶] We are here for the stalking. That is
globally what he is doing to her. He’s stalking her.” (Italics added.) Later, after
arguing that appellant had harassed Polar, the prosecutor asserted that the pertinent
course of conduct encompassed the misconduct from April 8 to 25, including the
“recorded messages,” together with “the vandalism and all of that.” He further
stated that the evidence of the uncharged criminal threats was introduced to
support the stalking count.
       The record amply supports the prosecutor’s theory that appellant’s conduct
in stalking Polar incorporated criminal threats other than those charged in counts 2


                                            13
and 4. At trial, the prosecutor submitted unchallenged evidence of numerous
phone messages from April 9 to 25, some of which contained threats. On April
13, appellant stated, “I’m going to fuck with your kids,” and “I’m going to twist
your ass up”; later, on April 18, he stated that unless Polar bought him a ticket to a
play that he believed she owed him, he was “going to have [his] home girl beat
                         7
[Polar’s] fucking ass.” In addition, on April 25, she became “very alarmed” when
she found a note from him stating, “Watch yourself in those apartments is the only
advice I have.”
       Under the circumstances present here, the trial court properly imposed
unstayed punishment on count 1, as appellant’s conduct in stalking Polar
incorporated misconduct not charged in counts 2 and 4, including instances of
criminal threats. Appellant’s harassment of Polar involved separate acts over a
lengthy span of time, which provided him ample time to reconsider his conduct.
Each separate act reflected a particular intent to “alarm[], annoy[], torment[], or
terrorize[]” Polar, or placed her in fear for her safety (§ 646.9, subds. (a), (e)).
That is especially true of the uncharged criminal threats noted above, which were
temporally separated from the criminal threats charged in counts 2 and 4. Because
appellant, in making the uncharged threats, had an “opportunity to reflect and to
renew his . . . intent” (Gaio, supra, 81 Cal.App.4th at p. 935), the record supported
the trial court’s determination that his course of conduct in stalking Polar reflected
“renew[ed]” intents for which unstayed additional punishment was properly
imposed.



7
        In closing argument, the prosecutor played for the jury clips of telephone calls
other than those constituting the threats alleged in counts 2 and 4, noting that “they go to
the stalking count.”


                                             14
      D. Failure to Impose Mandatory Fees
      Respondent contends the trial court failed to impose certain mandatory fees
in sentencing appellant. Section 1465.8, subdivision (a), provides that a $40 court
operations assessment “shall be imposed” on every conviction for a criminal
offense. Similarly, Government Code section 70373 provides that a $30 court
construction fee “shall be imposed” on every conviction for a criminal offense. At
the sentencing hearing, the trial court orally imposed only a single $40 court
operations assessment and a single $30 “criminal conviction fee,” but the abstract
of judgment reflects the imposition of court operations assessments totaling $200
and court construction fees totaling $150. As the court was required to impose the
fees upon sentencing appellant, the judgment must be modified to include a $40
court operations assessment and a $30 court construction fee for each of
appellant’s five convictions. (People v. Schoeb (2005) 132 Cal.App.4th 861, 866;
People v. Lopez (2010) 188 Cal.App.4th 474, 480.)




                                         15
                                   DISPOSITION
      The judgment is modified to reflect the imposition of a $40 court operations
assessment and a $30 court construction fee on each of appellant’s convictions
(counts 1 through 5). In all other respects, the judgment is affirmed.

      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                MANELLA, J.


We concur:




WILLHITE, Acting P. J.




EDMON, J.*




*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.



                                           16
