People v. Wise CA3
C090234
| Cal. Ct. App. | Sep 7, 2021Background:
- Wise met R.F. on a dating site, went on two dates, but then repeatedly (900+ times over three years) texted and called her despite her telling him to stop; he threatened self-harm and sent messages saying he had "stalkered" her.
- At arrest officers found a map to R.F.’s house, a document about placing a tracker, R.F.’s license plate, and two sets of photographs on his devices: ~300 edited/sexualized screenshots of R.F. and ~350 surreptitious photos of 14 other women (mostly of legs/while entering cars).
- Police seized several firearms and ammunition; one recovered gun (an FN Herstal SCAR) had been altered after purchase to comply with law, but at seizure it lacked the bullet button and had an increased magazine capacity; some ammunition had been stolen from stores.
- Charges included stalking (Pen. Code §646.9), unlawfully manufacturing an assault weapon (§30600) as to the Herstal, multiple assault-weapon possession counts (§30605), burglary, grand theft, and petty theft.
- Trial court admitted both photograph sets over defense objections; jury convicted on most counts; court imposed consecutive and concurrent terms, including an upper-term for unlawful manufacture of the Herstal.
- On appeal Wise challenged admission of both photo sets as irrelevant and unduly prejudicial, and argued the court should have treated possession of the Herstal as a lesser included offense of unlawful manufacture.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of R.F. photos | Photos show defendant’s obsession and intent/malice toward R.F.; thus relevant to stalking | Photos were private, not shown to R.F., did not show harassment or fear, and were unduly prejudicial | Admitted: photos probative of malicious intent and not unduly prejudicial under Evid. Code §352 |
| Admissibility of photos of other women (Evid. Code §1101/1109) | Showed similar conduct (surreptitious following/photographing) supporting intent and plan | Irrelevant to R.F. stalking; improper propensity evidence and highly prejudicial | Admitted under §1101(b): sufficiently similar to infer intent; probative value outweighs prejudice |
| Whether possession of the Herstal is a lesser included offense of unlawful manufacture | People noted jury was instructed on both counts and argued manufacturing does not necessarily include possession | Wise argued possession is necessarily included in the manufacture charge and convictions should not both stand | Rejected: elements test shows §30600 (manufacture/causing manufacture/import/etc.) can be violated without possession; both convictions may stand |
Key Cases Cited
- People v. Ewoldt, 7 Cal.4th 380 (1994) (describing the scope of undue prejudice under Evidence Code §352)
- People v. Gionis, 9 Cal.4th 1196 (1995) (explaining that §352 excludes only evidence that creates emotional bias unrelated to issues)
- People v. Foster, 50 Cal.4th 1301 (2010) (least similarity needed to prove intent with uncharged misconduct under §1101(b))
- People v. Reed, 38 Cal.4th 1224 (2006) (elements test for determining whether an offense is necessarily included)
- People v. Miranda, 21 Cal.App.4th 1464 (1994) (discussion of when a lesser offense is necessarily included)
- People v. Bay, 40 Cal.App.5th 126 (2019) (definitions of actual possession)
- People v. Sifuentes, 195 Cal.App.4th 1410 (2011) (standards for proving constructive possession)