Opinion
H047274
11-16-2020
In re C.O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.O., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. 19JV000575, 19JV000600, 19JV000673)
The juvenile court found true allegations that appellant C.O. (the minor) had committed five offenses: indecent exposure (Pen. Code, § 314, subd. 1), dissuading a witness (§ 136.1, subd. (b)(1)), stalking (§ 646.9, subd. (a)), making annoying telephone calls (§ 653m, subd. (b)), and disobeying a court order (§ 166, subd. (a)(4)). The court placed the minor on probation and imposed as a probation condition that the minor "not knowingly possess or view any pornographic materials."
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, the minor contends that (1) the stalking count was not supported by substantial evidence that he made a credible threat intended to place the victim in reasonable fear for her safety, (2) the court failed to make an express declaration that the stalking count was either a felony or a misdemeanor, and (3) the pornography probation condition was unconstitutionally vague. The Attorney General concedes that a remand is required for an express declaration as to the stalking count and that the probation condition is unconstitutionally vague and requires modification. We accept these concessions, but we reject the minor's challenge to the sufficiency of the evidence to support the stalking count. Accordingly, we reverse the order and remand with directions.
I. FACTS
A. Jane Doe 1
Jane Doe 1 was the minor's friend and classmate. In June 2019, she and the minor were sitting side-by-side on a school bus riding home from school. After they had talked for a few minutes, the minor asked if he could show her his penis "to get [her] rating on" the size of his penis. She looked away and repeatedly told him no. When he persisted and "pulled it out anyway," she said "sure, whatever" just to get him to stop. She looked at it, said "it's fine," and then looked away again, but she was "shocked" and offended. The minor then urged her to "just touch it. Why don't you touch it?" She said no repeatedly, and he "grabbed my sleeve." She again said no repeatedly, and he eventually put his penis away. Jane Doe 1 reported this incident to the police that very day.
B. Jane Doe 2
Jane Doe 2 met the minor in high school when he came up to her and introduced himself. She was a junior at that time, and he was a freshman. After that, she "never talked to him directly in person." She saw him around the school, but she did not interact with him even though they were both on the track team. Although she did not give him her phone number, he began texting her. His texts made her "uncomfortable," so she blocked his number.
After she blocked his number, Jane Doe 2 began receiving texts from the minor that came from an anonymous number. These texts included photos of her running and messages containing vulgar language and "inappropriate" comments. He also sent her numerous photos of his penis. The minor told her that he knew when she got off of work, and he texted her a photo of himself parked outside of her workplace.
She blocked at least a dozen phone numbers that the minor used to text her, but the texts continued from other numbers. He sent many pictures of penises. At first, she responded to his texts by telling him to "leave me alone," but she eventually stopped replying and the texts "died down." During Jane Doe 2's senior year of high school (2017-2018), the minor sometimes texted her, but the texts "weren't bad."
When she moved to Davis in 2018 to attend college, he continued to send messages to her. She was "annoyed" by his constant messages. In January 2019, he told her that he had gotten a tattoo of her initial and birthdate, though she had never told him her birthdate. He detailed how the tattoo was below his waistline where it would be hidden by his underwear. The minor told her: "I'm desperate to be apart [sic] of your life." In February 2019, he told her: "My life is over . . . It's only just a matter of time before I won't be able to tolerate the pain or agony anymore."
The minor told her that he had left something in her parents' mailbox for her. When Jane Doe 2 had her brother check the mailbox, he discovered a Gucci watch. She told the minor that she did not want it and to take it back, but he refused. The minor's father subsequently texted her and said the minor had stolen the watch from him. Jane Doe 2 responded by contacting the police and giving the watch to the police. The minor repeatedly texted her in the aftermath of the watch incident. He repeatedly told her "I love you to death" and "I can't live without you." He also informed her that he had been "provoked" by "the cops" and had been "arrested" because he "retaliated" and "threatened them as well because they pushed me to my limit and got me fucking pissed."
After the watch incident, the messages from the minor ceased for a while. In June 2019, he resumed texting her from an anonymous number, continuing to send her pictures of penises. The minor told her he had gone to her dorm room in Davis "at 11:30 at night," but she was not there. He said that he knew that she would have refused to see him if she had known he was coming, so he did not tell her and hoped to "surprise[]" her. He also told her that he knew that she would be getting an apartment in Davis the following school year, and he said he "was going to go looking at all the apartment complexes [in Davis] for [her] white Honda Accord and that he memorized [her] license plate." She told him to leave her alone or she would get a restraining order. The minor asked her "please don't file that restraining order on me." He told her: "I cry everyday about you. I scream and yell your name in my mind I love [Jane Doe 2] and I don't wanna live anymore if I can't have you . . . ." He repeated "I love you to death" and said "I would sacrifice my life for you . . . I would take a bullet for you [Jane Doe 2]."
Jane Doe 2 testified that she had given him her dorm room number and address in order to divert him from leaving "gifts" in her parents' mailbox.
When Jane Doe 2 returned to Monterey County for the summer, the minor repeatedly texted her that he had gotten her "gifts" and told her he had left one in her mailbox at 5:30 a.m. In mid-July 2019, the minor sent audio recordings to her phone in which he told her repeatedly that he "just can't live without you" and said "I truly do love you to death." He also told her "I really don't wanna live anymore," and "my life is worthless to me without you."
Though she had told him not to come near her Monterey County home, he came to her home three times. On the first occasion, Jane Doe 2 saw the minor approaching her car as she was leaving her home, and she drove away as fast as she could because she "was scared." The second time, she was outside her car when he approached, and she yelled at him to stop coming to her home. The third time, when he started walking toward her, she called the police. At that point, she got a restraining order because she was "really scared."
On July 23, 2019, after the minor had been served with the restraining order, he texted her a photo of himself with his erect penis exposed. The message accompanying the photo said: "I don't want any of us to get in trouble or arrested . . . that's a sex crime and it's a sex crime against a minor so it's an automatic felony so don't send o[r] show the police . . . ."
II. PROCEDURAL BACKGROUND
In June 2019, a petition was filed based on the Jane Doe 1 incident alleging that the minor had committed indecent exposure (§ 314, subd. 1) and had violated his probation for a prior offense of resisting an executive officer (§ 69). In July 2019, a second petition was filed based on the Jane Doe 2 incidents, alleging the remaining counts.
At the contested August 2019 jurisdictional hearing, the minor testified in his own defense, denied committing any of the offenses, insisted that Jane Doe 2 had "framed" him, and asserted that he had not sent any text messages to her in June or July 2019. The court found the allegations true. The juvenile court expressly found that "the minor's persistence with contacting the victim, despite being told to stop by her, and the court, through a temporary restraining order, do reveal an obsession that a reasonable person would understand is threatening. [¶] And in fact, she did testify that she was in fear." The minor was continued as a ward, placed in his parents' home on probation, and ordered to complete the Juvenile Sex Offender Response Team program.
The court found not true a count alleging distribution of obscene material (§ 311.1, subd. (a)). The court found that the photo of the minor's erect penis did not depict "sexual conduct" within the meaning of that statute.
III. DISCUSSION
A. Substantial Evidence Supports the Stalking Count
The minor contends that the prosecution did not present substantial evidence that he harbored the requisite specific intent to put Jane Doe 2 in fear for her safety. He claims that, because there were "no overt threats" and no use of "physical force" on her, there was no evidence that he "intended to scare her." While he concedes that his course of conduct "may be alarming and even terrorizing," he maintains that there was no showing that he engaged in that conduct with "an intent to induce fear."
"Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction." (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) "[T]he standard of review that applies to insufficient evidence claims involving circumstantial evidence is the same as the standard of review that applies to claims involving direct evidence. 'We "must accept logical inferences that the [factfinder] might have drawn from the circumstantial evidence. [Citation.]" . . . Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal. [Citation.]' [Citation.]" (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
"Any 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 . . . ." (§ 646.9, subd. (a), emphasis added.) The statute provides that the "credible threat" element may be satisfied by "a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat." (§ 646.9, subd. (g).) "The intent element of the section is a specific intent element, requiring that the actor embark upon a 'course of conduct intended to cause someone to fear.' " (People v. Falck (1997) 52 Cal.App.4th 287, 296.)
The minor acknowledges that " ' "[t]he element of intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence." ' " (People v. Lopez (2015) 240 Cal.App.4th 436, 454 (Lopez).) He attempts to distinguish Lopez, the case upon which the trial court relied. In Lopez, the First District Court of Appeal found sufficient evidence of the required specific intent for stalking where the defendant "ignored [the victim's] increasingly impassioned pleas to stop contacting her because he was scaring her." (Ibid., italics added.) It was undisputed in Lopez that the defendant knew that his conduct was causing his victim fear because she told him that he was scaring her. (Ibid.) Thus, a reasonable inference could be readily drawn from his continuation of this conduct that he intended to continue to cause her fear.
Unlike the situation in Lopez, the evidence here does not include an express statement by Jane Doe 2 to the minor that his conduct was scaring her. However, such a statement is not a prerequisite to a finding that the minor's conduct and the content of his messages to Jane Doe 2 support a reasonable inference that he intended to induce fear in Jane Doe 2. While the evidence in this case could be reconciled with a contrary reasonable inference, we are compelled to conclude that substantial evidence reasonably justified the juvenile court in drawing a reasonable inference that the minor intended to induce fear in Jane Doe 2.
Several factors support such an inference. First, the minor repeatedly sent Jane Doe 2 messages and photos that contained explicit sexual content even though the two of them were barely acquainted and had never had any sort of sexual relationship. He sent her many photos of his erect penis and made vague references to a "sex crime." He told her that he had gotten a tattoo of her initial and birthdate on an intimate portion of his body. Even after he was served with a restraining order, he sent her a photo of himself with an erect penis. The juvenile court could reasonable infer that the minor intended for these acts and messages to communicate a sexually threatening intent and also that he intended to demonstrate to Jane Doe 2 that the restraining order would not be sufficient to protect her.
Second, even though she had never given him her phone number, her birthdate, or her vehicle license number, he discovered all of this information and taunted her with his knowledge of it. When she repeatedly blocked any number that he used to contact her and pleaded with him to stop communicating with her, he continued to send her messages that he clearly understood were unwanted. The juvenile court could reasonably infer that the minor did these things to communicate to Jane Doe 2 that he knew how to find her and that she could not avoid him.
Third, the minor told her that he knew when she got off work, sent a photo of him waiting outside her workplace, informed her that he had gone to her dorm room late at night to surprise her, detailed how he would methodically track down her apartment in Davis, and told her that he had left something in her mailbox in the wee hours. And he continued all of this conduct even after she threatened to get a restraining order against him. The juvenile court could reasonably infer that the minor intended to communicate to Jane Doe 2 that he would always be able to contact her at vulnerable times and that she was powerless to stop him, which necessarily communicated a threat to her safety.
Fourth, the minor backed up these implied threats with actions. He continued to come to her home even after she fled from him in fear and yelled at him to leave, demonstrating that he was aware that his conduct was causing her fear, which supported a reasonable inference that he intended to cause that fear.
Fifth, the minor repeatedly told Jane Doe 2 of his desperation, his suicidal thoughts, and his need to "love [her] to death." While these words could have been intended as mere hyperbole, the juvenile court could reasonably infer that the minor also intended to induce fear in Jane Doe 2 as a means of breaking down her resistance.
Finally, there appeared to be no purpose other than to cause Jane Doe 2 to fear him for the minor's message telling her how he had "retaliated" and "threatened" the police before being "arrested" because "they pushed me to my limit and got me fucking pissed." The juvenile court could reasonably infer that the minor intended to communicate to Jane Doe 2 that even the police could not control him, which could only have been intended to induce fear.
In sum, the evidence of the minor's conduct towards and messages to Jane Doe 2 in this case was sufficient to support a reasonable inference that he intended to induce fear in Jane Doe 2.
B. Failure to Declare That Stalking Was A Felony or a Misdemeanor
The minor contends, and the Attorney General concedes, that a remand is required because the juvenile court failed to expressly declare whether the stalking count was a felony or a misdemeanor.
Stalking is punishable as either a felony or a misdemeanor. (§ 646.9, subd. (a).) "If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." (Welf. & Instit. Code, § 702, italics added.)
In In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy), the California Supreme Court held that a remand was required where the juvenile court had failed to make an express declaration as to whether the offense was a felony or a misdemeanor. In Manzy, the offense had been alleged as a felony, and Manzy had admitted the allegation. (Id. at p. 1202.) The juvenile court had committed Manzy to the California Youth Authority and set his maximum term of physical confinement at three years, a felony-level term. (Id. at p. 1203.) The California Supreme Court held that Welfare and Institutions Code section 702's requirement of an express declaration required a remand. The court noted that a mere reference to the offense as a felony in the minutes of the dispositional hearing would not obviate the need for an express declaration by the court. (Manzy, supra at pp. 1207-1208.)
The California Supreme Court pointed out in Manzy that a remand was not "automatic" whenever the juvenile court failed to make an express declaration. (Manzy, supra, 14 Cal.4th at p. 1209.) "[T]he record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit." (Ibid.)
In this case, the juvenile court never made an express declaration that the stalking count should be treated as a felony, and the record as a whole does not establish that the juvenile court was aware of its discretion to treat the stalking offense as a misdemeanor. The record reflects that the court was aware of its discretion to treat the dissuasion count as a misdemeanor. At the dispositional hearing, the minor asked the court to reduce the dissuasion count, which was a Welfare and Institutions Code section 707, subdivision (b) offense, to a misdemeanor. The court declined to do so: "[T]he Court does declare the 136.1(b) [dissuading] charge to be a felony and a 707(b) offense at this time."
The court's signed dispositional order contained the following preprinted language: "The court previously sustained the following counts. Any charges which may be considered a misdemeanor or a felony for which the court has not previously specified the level of offense are now determined to be as follows:" Below this text, all of the counts were listed, even though only the dissuading and stalking counts were punishable as either felonies or misdemeanors. The other three counts were punishable only as misdemeanors. The "Felony" checkboxes were checked for the dissuading and stalking counts, and the "Misdemeanor" checkboxes were checked for the other three counts. Because the dispositional order did not distinguish between those counts that were punishable as either felonies or misdemeanors and those punishable only as misdemeanors, this order did not establish that the court was aware of its discretion to treat the stalking count as a misdemeanor.
Accordingly, we agree with the parties that the record does not reflect that the court was aware of its discretion to treat the stalking count as a misdemeanor. Hence, a remand is required for the court to exercise its discretion in this regard.
C. Pornography Probation Condition
The minor challenges as unconstitutionally vague the probation condition requiring that he "not knowingly possess or view any pornographic materials." Although he did not object to this condition, he maintains that his challenge was not forfeited because the condition is unconstitutional on its face. The Attorney General concedes that the condition is unconstitutionally vague, and the parties agree that it requires modification.
The minor told a social worker who was evaluating him that he enjoyed watching pornography.
We agree with the parties that the condition is unconstitutionally vague and requires modification. In People v. Pirali (2013) 217 Cal.App.4th 1341, this court held that an adult probation condition barring the possession of "pornographic or sexually explicit materials as defined by the probation officer" was unconstitutionally vague because it used an "inherently subjective standard" to define the prohibited items. (Id. at pp. 1352-1353; see also In re D.H. (2016) 4 Cal.App.5th 722, 729 [the term "pornography" is "inherently vague"].)
The parties agree that the condition's vagueness may be cured by modifying the probation condition to define the prohibited "pornographic materials" as obscene "materials as defined by section 311, subdivisions (a) through (h)." We agree that this is an appropriate modification in this case, and we will therefore order the juvenile court to make this modification on remand.
IV. DISPOSITION
The order is reversed, and the matter is remanded with directions to the juvenile court to (1) exercise its discretion to declare the stalking count to be either a felony or a misdemeanor, and (2) modify the pornography condition to define the prohibited "pornographic materials" as obscene "materials as defined by section 311, subdivisions (a) through (h)."
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P.J. /s/_________
BAMATTRE-MANOUKIAN, J.