People v. Molina CA4/2

INTRODUCTION

A jury found defendant and appellant Mario Adam Molina guilty of stalking in

violation of a restraining order (Pen. Code,1 § 646.9, subd. (b), count 1) and found true the

allegation that he was subject to a temporary restraining order. The jury also found him

guilty of violating a protective order. (§ 273.6, subd. (a), count 2.) A trial court sentenced

defendant to the upper term of four years on count 1, plus a concurrent term of one year on

count 2.

On appeal, defendant contends: (1) the evidence was insufficient to show he stalked

the victim while a restraining order was in effect; (2) the concurrent term on count 2 must be

stayed pursuant to section 654; and (3) the matter should be remanded for resentencing

because the court mistakenly believed it did not have the discretion to grant probation, and it

relied on improper and unsupported factors to impose the upper term on count 1. The

People concede, and we agree, that the sentence on count 2 should be stayed under section

654. Otherwise, we affirm the judgment.

FACTUAL BACKGROUND

R.D. (the victim) and defendant dated from 2009 to 2015 and had two children

together. During their relationship,…