People v. Sykes

16 Cal.Rptr.3d 317

120 Cal.App.4th 1331

The PEOPLE, Plaintiff and Respondent, v. Jesse Lee SYKES, Defendant and Appellant.

No. B168042.

Court of Appeal, Second District, Division 5.

July 28, 2004.

Certified for Partial Publication.^*

As Modified July 29, 2004.

Review Granted October 20, 2004.

Marleigh A. Kopas, under appointment by the Court of Appeal, Topanga, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendant, Jesse Lee Sykes, appeals from his convictions for: arson of an inhabited structure (Pen.Code,¹ § 451, subd. (b)); misdemeanor indecent exposure (§ 314, subd. (1)); stalking (§ 646.9, subd. (a)); three counts of making terrorist threats (§ 422); and three counts of making misdemeanor annoying telephone calls. (§ 653m, subd. (a).) The jury also found that defendant had previously been convicted of two serious felonies. (§§ 667, subds. (a)(1), (b)-(i), 1170.12.) Defendant argues the trial court improperly: refused to instruct the jury regarding in-court identifications; admitted evidence of his prior serious felony convictions; and imposed consecutive sentences. The Attorney General argues that several sentencing errors occurred and the abstract of judgment should be corrected. In the published portion of this opinion we discuss two issues. First, we conclude the trial court did not abuse its discretion in permitting the victim of defendant's terrorist threats to testify she knew he had previously been convicted in federal court of two counts of bank robbery. Second, we conclude the imposition of consecutive sentences did not violate the holding of Blakely v. Washington (2004) 542 U.S. 296, ___, 124 S.Ct. 2531, 2537-2539, 2543, 159 L.Ed.2d 403, ___. We affirm in part, reverse in part, and remand for resentencing.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560; People v. Osband (1996) 13 Cal.4th 622, 690, 55 Cal Rptr.2d 26, 919 P.2d 640; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909.) On October 29, 2001, Christiane B. was employed as a treatment coordinator at Vinewood Corrections, a federal halfway house. Christiane had a masters degree in clinical psychology. Christiane's position at Vinewood was as an intern responsible for treating drug and alcohol clients residing at the facility. Christiane met in group and individual therapy sessions with the clients. Defendant was one of the clients who was required to participate in drug and alcohol counseling by the federal Bureau of Prisons. Christiane had seen defendant in approximately five individual counseling sessions between September and October 2001. She had also observed defendant in two or three group sessions in that time frame. Christiane had reviewed defendant's file, observed him in the halfway house setting, was familiar with his handwriting, and listened to his voice on the foregoing occasions.

Christiane was in her office at approximately 9:15 p.m. on October 29, 2001. Defendant walked into Christiane's office. Defendant closed the door behind him. Defendant took an aggressive posture in front of the door. Christiane asked defendant to leave and indicated she was scheduled for another appointment. Defendant stated: "No, you don't. I checked your schedule." Thereafter, defendant unzipped his pants and exposed his penis. Christiane feared that defendant intended to rape her. Christiane hit the wall in an attempt to get the attention of coworkers. Defendant informed her that there was no one else around the office. A door slammed outside Christiane's office. Defendant ran out. Christiane locked her office door and attempted to summon a supervisor. When she could not reach anyone, she waited until other staff performed a perimeter check. Christiane left the building and went home. Christiane reported the incident to her supervisor the following morning. An incident report was prepared. Christiane consulted with her clinical supervisor and returned home.

Christiane was informed the following day, October 30, 2001, that defendant escaped from the halfway house. Christiane feared that defendant would retaliate against her. Christiane maintained records in her office that included an address at the beach, her phone number, and her birth date. Christiane returned to work on November 1, 2001. As Christiane unlocked her office, she found a folded note that appeared to have been slid under her door. Christiane recognized defendant's handwriting on the note, which stated, "To be continued." Christiane feared defendant was coming back to harm her. Christiane took a brief leave of absence from work. When she left her office it was locked. The windows were closed.

At approximately 2:00 a.m. on November 3, 2001, a fire occurred at the Vinewood facility. After arriving at the facility, Los Angeles City Fire Department Captain Philippe Delbar saw a fire through a broken window in Christiane's office. The office was completely involved in the fire. There were residences located on the second floor of the facility as well as adjacent to the administrative offices on the first floor. Captain Delbar suspected arson based on: burn patterns on the wall; a substantial burn on the floor; an odor of gasoline; and indications of explosion in Christiane's office. Fire Chief Thomas Ottman concluded that Christiane's office was the point of origin for the fire. Chief Ottman also determined that the fire was caused by a flammable liquid explosion. The burn pattern suggested that the fire ignited just under the broken window. Chief Ottman noted that in his experience someone in the vicinity of a flammable liquid explosion would suffer burns. The burns would injure uncovered parts of the individual's body such as hands, arms, face, and chest.

David Lohrli was a resident at the Vinewood facility at the time of the fire on November 3, 2001. Mr. Lohrli's room was on the second floor above the offices. Two other individuals slept in the same room as Mr. Lohrli. Defendant had been Mr. Lohrli's roommate prior to November 2001. Mr. Lohrli went to bed at approximately 10:00 p.m. on November 2, 2001. Mr. Lohrli was awakened by what he thought was a gunshot. Mr. Lohrli smelled smoke. Mr. Lohrli went to the window. Mr. Lohrli saw a man standing next to the fence of an adjacent apartment building. Mr. Lohrli did not recognize the man. Another resident, Aaron Brown, was also awakened by what he characterized as a "major explosion." Mr. Brown was able to see flames when he looked out the window. Mr. Brown also saw someone scaling the fence. Defendant fit the description of the person he saw "falling over the gate." Mr. Brown ran to another window and saw the same man running down the street.

On approximately November 4 or 5, 2001, Larry Obando, saw defendant at American Medical Wholesale Supply, their mutual place of employment. Mr. Obando was working on his truck. Defendant called out to Mr. Obando. Defendant had bandages on his arms. Defendant's hair was burned off. Defendant had scars or scabs on his head, face, arms, and legs. Defendant asked Mr. Obando to speak to a supervisor. Defendant wanted to pick up his paycheck. Mr. Obando inquired about the check. Mr. Obando then spoke to defendant about the paycheck.

Dr. Heather Flaherty worked as a resident at the Olive View Medical Center emergency room on November 5, 2001. Dr. Flaherty treated defendant for burns at approximately 9:30 p.m. on November 5, 2001. Defendant had second-degree burns to his face. Defendant had a few patches of hair that had been burned. The remainder of defendant's hair had been shaved. Defendant also had second to third-degree burns on his hands and wrists. Defendant also had second-degree burns to his abdomen area. Defendant told Dr. Flaherty that he had been working on a car when the engine exploded and burned him. However, Dr. Flaherty believed the injuries were more likely to have been incurred in a flash fire.

On November 19, 2001, defendant telephoned Christiane at her home. Christiane feared for her safety. Christiane testified defendant told her: "[H]e had done something really stupid. Because — he had been — because he was very pissed off at [her] for the write-up." Defendant also said, "[B]ecause he had done something stupid, he got into a really bad accident." When Christiane asked whether it was a car accident, defendant said, "No, not that kind of accident." Christiane told defendant that she had to get off the phone. Christiane asked defendant for a phone number where she could call him right back. Defendant gave Christiane a phone number. Defendant also told Christiane: "I am not done with you yet. I am coming to pay you a visit." Christiane feared that defendant would rape, maim, or kill her. Christiane believed this because of his prior history and he was an escapee. Christiane immediately went to the police station and reported the telephone conversation with defendant.

Defendant continued to leave telephone messages on Christiane's answering machine. Four of the messages were heard by Christiane on November 22, 2001. The fifth message was heard on January 8, 2002. Tapes of those messages were played for the jury at trial. Christiane was very alarmed by defendant's calls because he knew her telephone number and made reference to her recent birthday. In addition, one message made reference to the monthly rent for the beach apartment she had just vacated. Christiane felt defendant must have been to the apartment. Christiane also believed defendant had obtained access to her personal records kept in her office. In the first message, defendant cautioned: "[P]retty nervous...