Opinion
H032234
2-26-2009
THE PEOPLE, Plaintiff and Respondent, v. DANIEL GARCIA ALARCON, Defendant and Appellant.
Not to be Published in Official Reports
Based upon evidence from the transcript of a preliminary hearing, the trial court found defendant Daniel Garcia Alarcon guilty of inflicting corporal injury upon a cohabitant and stalking. On appeal, defendant contends that no substantial evidence supports the stalking conviction. We disagree and affirm the judgment.
scope of review
The applicable standard of review is well settled. "In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we `examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence." (People v. Guerra (2006) 37 Cal.4th 1067, 1129; see also People v. Meza (1995) 38 Cal.App.4th 1741, 1745.)
background
On Friday, February 23, 2007, defendant visited the home of ex-girlfriend Magaly Mieryteran to visit their son and became angry and upset at Mieryteran because she had received a telephone call and would not tell him with whom and about what she had conversed. On February 24, Mieryteran left her son in her mothers custody at the home while she went out of town. She left her car near a 7-Eleven store located two blocks from the home. On February 25 at 8:00 a.m., defendant visited the home, telephoned Mieryteran, and angrily demanded to know Mieryterans whereabouts and why she was not caring for their son. At 11:20 a.m., Mieryteran returned to her car and saw defendant nearby inside his parked car staring at her. She started walking to the 7-Eleven store. Defendant drove rapidly toward Mieryteran, stopped next to her, exited his car, began to curse and yell at her while also accusing her of being with another man, punched her in the face, pulled her hair, head-butted her, knocked her to the ground, kicked her, and dragged her 10 feet toward the passenger side of his car. He then took her cell phone, threatened to kill her, warned her against calling the police, and tore her clothes. Mieryteran saw someone driving a truck and screamed. The truck driver stopped, exited the truck, and approached defendant. Mieryteran broke free, ran into her car, drove home, and stopped at the front gate. Defendant drove there, exited his car, and tried to open Mieryterans drivers door. Mieryteran backed up, drove away to the 7-Eleven, exited her car, and entered the 7-Eleven. Defendant followed her, parked his car next to hers, and entered the 7-Eleven. Mieryteran ran behind the counter and asked the manager for help. Defendant pursued her, but the manager demanded that defendant leave the premises. Defendant retreated from behind the counter but then grabbed Mieryterans hair and struck her face on the counter while calling her a "bitch."
discussion
Penal Code section 646.9, subdivision (a) declares "[a]ny person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking." The case law recognizes "[t]he elements of the crime of stalking" include "(1) repeatedly following or harassing another person, and (2) making a credible threat (3) with the intent to place that person in reasonable fear of death or great bodily injury." (People v. Ewing (1999) 76 Cal.App.4th 199, 210; see also People v. Carron (1995) 37 Cal.App.4th 1230, 1238.)
Defendant contends that "the evidence was insufficient to support a conviction for stalking because there was only one incident of following, whereas the statute requires that it be done `repeatedly. " We disagree. " `Repeatedly . . . simply means the perpetrator must follow the victim more than one time." (People v. Heilman (1994) 25 Cal.App.4th 391, 400.)
Here, the record shows that defendant followed Mieryteran from (1) his parking place to the 7-Eleven, (2) the 7-Eleven to Mieryterans front gate, and (3) Mieryterans front gate to the 7-Eleven. In other words, after first encountering Mieryteran at the 7-Eleven, defendant made three separate decisions to go out of his way so as to confront Mieryteran. This is ample evidence from which the trial court could find that defendant engaged in repeated following. (Cf. People v. McCray (1997) 58 Cal.App.4th 159, 168-171 [harassment can consist of two or more acts that occur in a single evening].) It is true that one could rationally interpret the facts here differently and conclude that defendant engaged in a continuous course of conduct rather than a repeated following. But this presents an issue of dueling interpretations, a factual argument that is proper before the trier of fact but unavailing on appeal.
Moreover, defendant overlooks that following is only one of two ways the stalking statute can be violated. It can also be violated by harassing, which is specifically defined by the statute.
Harassing "means 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." (Pen. Code, § 646.9, subd. (e).) A course of conduct "means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose." (Id., subd. (f).)
Defendants assaultive behavior against Mieryteran, starting at the 7-Eleven and restarting at the front gate and again at the 7-Eleven, also supports a harassment finding. (See, e.g., People v. McCray, supra, 58 Cal.App.4th at pp. 168-171 [stalking may be based on single instance of harassment as defined].)
disposition
The judgment is affirmed.
WE CONCUR:
Rushing, P.J.
Elia, J.