Opinion
A165385
02-29-2024
THE PEOPLE, Plaintiff and Respondent, v. BRIAN LEE HANSEN, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 01001964964
Mayfield, J. [*]
After a jury found Brian Lee Hansen guilty of two counts of stalking his former coworker, D.K., the trial court sentenced him to probation. (Pen. Code, § 646.9.) Hansen contends there was no substantial evidence he intended to threaten D.K., and the trial court erred by failing to instruct the jury sua sponte that it must agree unanimously on the communication and/or conduct which conveyed a threat. He also contends-and the Attorney General concedes-that (1) one of his convictions must be stricken because each charge stems from the same course of conduct, and (2) his presentence credits must be corrected. Finally, he contends the court exceeded its authority by issuing a criminal protective order barring him from contacting not only D.K., but her husband and children. We vacate his conviction on one count of stalking, order his presentence credits corrected and the protective order modified, and otherwise affirm.
All undesignated statutory references are to the Penal Code.
BACKGROUND
I.
Factual Background
Hansen and D.K. worked at the same restaurant in Lafayette for four months in 2017; she was a manager and he was a busser. They spoke little, mostly about work, though she likely mentioned being married with children. They never socialized outside work.
After Hansen left the job in late 2017, he called and sent a letter to D.K. at the restaurant using the alias of the lead singer of a band she listened to. He sent text messages to a cell number she provided to all employees. D.K. responded kindly at first to a text about why he had left the job. But she stopped replying after he began texting repeatedly about topics like meeting for coffee and, eventually, being in love with her.
Sometime after he left the restaurant, Hansen moved to Los Angeles. In May 2018, he sent D.K. several texts saying he was coming to the Bay Area to meet her. He suggested they run away to Las Vegas to get married, come back for her children, and raise them together. She did not respond. He left roses and jewelry on the porch of the house where she lived with her husband and children. Once after unsuccessfully trying to telephone D.K at the restaurant, Hansen showed up while D.K. was working. D.K. hid in the general manager's office.
The texts and gifts frightened D.K., as did the fact Hansen knew where she lived and worked and had gone to both places. D.K. blocked Hansen's number, filed a police report, and filed a request for a restraining order but could not locate Hansen to serve it. Hansen tried to contact her on social media but she made her accounts private and blocked him. D.K. eventually left her job because she feared that Hansen would come to the restaurant looking for her.
For nearly three years, Hansen did not contact D.K. In April 2021, while working at a new restaurant called Va de Vi and attending college, D.K. created a public LinkedIn profile for a class project. Hansen sent a request to connect on LinkedIn. D.K. clicked on his profile and denied the request.
Notified by LinkedIn that she had viewed his profile, Hansen sent D.K. a message saying, "Bitch don't look at my profile, message me back, give me your phone number." He sent messages encouraging her to leave her job and stop taking classes: "I need you exercising and taking care of yourself, not slinging drinks"; "Your job needs to be taking care of your kids and taking care of your body for my pleasure"; and "How much money would you need to make those two things your full-time job." He later sent a message apologizing for having written those things and stating, "I was trying to be like a dominant, aggressive male. I thought you may like it." The messages frightened D.K., and she deleted her LinkedIn account.
But that did not suffice, for her profile had identified Va de Vi as her workplace. Hansen soon appeared there, masked because of the pandemic. D.K. saw him stare at her but did not recognize him. When he began calling to ask when she worked and make reservations at those times, she realized who it was.
D.K. was shocked and scared. She arranged for coworkers or police to escort her on the five-block walk from her parking place in a CVS parking lot to Va de Vi. She and her husband arranged police patrols of their home and got a security system and a gun. She secured a temporary restraining order (TRO) and had police officers serve it on Hansen when he ate at Va de Vi in May 2021.
Hansen then began sending D.K. money and numerous messages via the money-transfer app Venmo. A few weeks after being served with the TRO, he sent $1,000 and wrote, "It is set to private so no one should know about it except us." D.K. reported each contact to the police. But she did not block Hansen because his Venmo messages often said where he was, and she wanted to know if he was approaching.
In June 2021, with the TRO still in effect, Hansen sent D.K. $1,000 by Venmo with the message, "I'm at Va de Vi. Do I go to prison now? Where are you?" She was also at Va de Vi. She called 911, Hansen tried to flee, and he was arrested. The next day, D.K. was issued a permanent restraining order.
A week later, however, when D.K. was home at night with her husband and children, Hansen sent a Venmo message saying, in part, "come outside." She feared he was at her house. The next morning, she drove to work, having agreed to cover a shift she did not usually work. She parked in her usual spot five blocks from Va de Vi, sat in her car fixing her makeup, and looked up to see Hansen standing by her car door, staring at her. She drove hastily to Va de Vi, ran inside, and called the police. She was crying and frightened.
Hansen was arrested again and charged with stalking. Lyft deactivated him as a driver. A few weeks later, he sent D.K. a flurry of Venmo messages. One said he had planned to use his Lyft earnings "to build two businesses that might change the world" but realized, "I need to get my priorities straight and focus on what's most important ... [¶] ... [¶] ... [¶] you." He said he would send "$1k/month for a while," then "all my available income will go to you [¶] I love you." The next message read," 'like' it." Another said, "I made your LinkedIn photo my phone's background/wallpaper [¶] If I'm stressed out or angry or sad, I just need to look at it [¶] it calms me down [¶] makes me remember what I'm doing with my life which is ... [¶] ... [¶] ... [¶] earning you." A final string of messages read, "you got me permanently deactivated from Lyft [¶] I don't understand you [¶] but I am still chained to you [¶] to love you forever [¶] I'll still get everything done [¶] including you [¶] without Lyft [¶] you just cost me so much money [¶] but I don't care [¶] love you."
The messages made D.K. very afraid. She feared Hansen would emerge from the shadows to attack or abduct her or her family. Each time he was arrested for violating the restraining order, he would simply bail himself out and do so again. D.K. switched jobs again and stopped attending college.
Hansen desisted for several months, but in January 2022, he sent D.K. $2,500 by Venmo.
II.
Legal Proceedings
An information filed in August 2021 charged Hansen with two counts of stalking. The first count, under subdivision (b) of section 646.9, included an allegation he committed the offense while subject to a restraining order; the second, under subdivision (a), did not allege a restraining order.
In April 2022, the case proceeded to a jury trial. At the close of the prosecution's case in chief, Hansen moved for a judgment of acquittal pursuant to section 1118.1, arguing there was no evidence he made a credible threat with an intent to place D.K. in reasonable fear for her or her family's safety. The trial court denied the motion.
The jury found Hansen guilty of both counts of stalking. The trial court suspended imposition of sentence and ordered two years' formal probation subject to conditions including a 364-day jail term. The court also issued a criminal protective order under section 646.9, subdivision (k) (section 646.9(k)), barring him for 10 years from having any contact with D.K., her husband, or their children.
DISCUSSION
I.
Substantial Evidence Supported the Finding Hansen Intended to Threaten D.K.
Hansen claims his stalking convictions must be reversed because the prosecution did not introduce substantial evidence he made a credible threat to D.K. with an intent to place her in fear for her safety or that of her immediate family. We disagree.
Section 646.9 applies to one who harasses or repeatedly follows another person and "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." (§ 646.9, subd. (a).) A "credible threat" is "a verbal or written threat, including [one communicated electronically], or 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." (Id., subd. (g).) Hansen concedes there was substantial evidence he harassed D.K. but claims no such evidence showed a credible threat.
Hansen challenges the denial of his motion for acquittal pursuant to section 1181.1 at the close of the prosecution's case in chief. Review of such a claim is limited to the evidence in the record at the time of the motion but is otherwise subject to the same standard of review as a challenge to the sufficiency of the evidence to support a conviction. (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.) That standard imposes "an enormous burden" on an appellant. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) "In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence-that is, evidence that is reasonable, credible, and of solid value- supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] . . . [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal . . . is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
Here, the prosecution presented ample evidence enabling a reasonable jury to find beyond a reasonable doubt that Hansen made an implicit threat to the safety of D.K. or her family by "a combination of . . . statements and conduct." (§ 646.9, subd. (g).) Intent"' "is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances." '" (People v. Lopez (2015) 240 Cal.App.4th 436, 454 (Lopez).) Numerous mutually reinforcing facts and circumstances support the jury's inference that Hansen intended to threaten D.K.
D.K.'s trial testimony established that Hansen identified the locations of her home, her new workplace, and her habitual parking spot five blocks away without her knowledge or consent. He went to all three places and let her know he had done so. In People v. Uecker (2009) 172 Cal.App.4th 583, the court held that communications showing a defendant had identified the victim's schedule and parking spots supported an inference he wanted her to know he was tracking her to put her in fear. (Id. at p. 595.) Hansen's acts strongly support the same inference.
A week after Hansen was arrested for defying the TRO by going to Va de Vi and sending the "Do I go to prison now?" message, he escalated his conduct. He sent D.K. a message-"come outside"-implying he was lurking outside her home at night. The next morning, he appeared by her car, five blocks from Va de Vi, in circumstances that could plausibly be explained only by his having followed her from her home. His conduct indicated he would continue to track her down in disregard of her desires. Hansen appeared undeterred by her involvement of law enforcement and the courts.
That circumstance echoes Lopez, supra, 240 Cal.App.4th 436, in which this court found substantial evidence a defendant intended to implicitly threaten a woman by a combination of communications and acts that, on their face, conveyed only a desire for a relationship. (Id. at pp. 449-454.) The defendant stalked the victim on and off for a decade, even after she told him he had frightened her sufficiently to call the police. (Id. at pp. 442, 451.) He "responded with further contacts, continuing even after the police became involved." (Id. at p. 454.) The same was true in People v. Frias (2024) 98 Cal.App.5th 999 (Frias), in which the Second District recently held substantial evidence supported findings the defendant made a credible threat when he pursued the stalking victim "in the hope of a romantic relationship and continue[d] the pursuit after the victim [made] clear the conduct [was] unwanted." (Id. at p. 1017.) The Second District noted in particular that the defendant continued contacting the victim "even after she made clear by calling the police that his conduct was unwanted and scared her." (Id. at p. 1019.)
This case has other parallels to Lopez, supra, 240 Cal.App.4th 436, and Frias, supra, 98 Cal.App.5th 999. The defendant in Lopez created a labyrinth of rocks depicting the victim's face in a park by her home, and appeared several times in places near her home. (Lopez, at pp. 439-444.) Those acts permitted an inference he meant to convey the message he knew where she lived. (Id. at p. 451.) The defendant in Frias made clear to the victim he knew where she lived and was watching her by posting a Facebook comment about flowers she placed in a vase by her apartment window, knocking on her apartment door one night and demanding entry, and, after she had called the police, sending a text message implying he was downstairs at the apartment complex. (Frias, at pp. 1018-1019.) Here, Hansen conveyed the same message to D.K. by leaving gifts at her home and sending the "come outside" message when she was in her house at night, a week after his first arrest.
In Lopez, supra, 240 Cal.App.4th 436, we also stressed how, shortly after the police detained the defendant for stalking, he stepped out from under some scaffolding to speak with the victim as she walked home at night, on a route she did not usually take. (Id. at pp. 451-452.) The timing and unusual location of the meeting raised "an obvious inference that it was not a coincidence." (Id. at p. 452.) The same is true of Hansen's appearance at D.K.'s parking spot, as she prepared to work an unusual shift, a week after his arrest.
Hansen's language reinforced the way in which his conduct" 'signaled he was not going to take no for an answer.'" (Frias, supra, 98 Cal.App.5th at p. 1019, quoting People v. Uecker, supra, 172 Cal.App.4th at p. 595; accord, Lopez, supra, 240 Cal.App.4th at p. 450.) In the messages about Lyft, sent after he had been arrested twice and charged with stalking, he said he was "chained to" D.K., identified his purpose in life as "earning" her, and referred to her as a thing he would "get . . . done." His words conveyed his view of D.K. as an object or prize he would earn, not a subject who could choose otherwise. They implied he would not accept her or her husband denying him what he had "earned" and thwarting his "obsessive insistence that [she] comply with his desires." (Lopez, at p. 454, fn. 5.)
In Lopez, we rejected the defendant's claim he did not intend to cause his victim fear, for "his persistence in the face of [her] efforts to avoid him and make him understand the degree of fear he was causing her, including going to the police to stop him, amply supports the inference that he intended the result he caused." (Lopez, supra, 240 Cal.App.4th at p. 454.) The Second District in Frias held the similar facts there supported the same inference. (Frias, supra, 98 Cal.App.5th at p. 1019.) So too here. The lack of a single "smoking gun" message or act conveying an unmistakable threat suggests at most that the circumstances "might also reasonably be reconciled with a contrary finding." (People v. Jennings, supra, 50 Cal.4th at p. 639.) That is immaterial. (Ibid.) A reasonable jury could find beyond a reasonable doubt that Hansen intended his relentless pursuit of D.K.-despite her silence, the restraining orders, and the two arrests-to cause her fear by implicitly threatening to keep escalating his conduct to the point of violence against her or her family. (Ibid.)
II.
The Trial Court Was Not Obliged to Instruct on Unanimity
Hansen claims the trial court erred by failing to instruct the jury that it must unanimously agree on the statement, pattern of conduct, or combination of statements and conduct which satisfied the "credible threat" element of the charged stalking offenses. (§ 646.9, subd. (a).) He contends that CALCRIM No. 3500 must be given sua sponte "if the prosecution presents evidence of multiple acts to prove a single count," but not if "the offense constitutes a 'continuous course of conduct.'" (Judicial Council of Cal., Crim. Jury Instns. (2023) Bench Notes to CALCRIM No. 3500, p. 1067, citing People v. Russo (2001) 25 Cal.4th 1124, 1132 [sua sponte duty].)
The instruction specifies an offense and states, "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed." (CALCRIM No. 3500.)
The Attorney General contends Hansen invited any error. His trial attorney initially requested the use of CALCRIM No. 3500 but, in a jury instruction conference, the trial court deemed the request "unusual because this is a continuing course of conduct crime" and asked, "Is the defense still requesting 3500?" Hansen's attorney withdrew the request without comment. Such acquiescence cannot trigger the invited error doctrine, which applies only if an attorney expresses a "deliberate tactical purpose" in declining to request an instruction. (People v. McKinnon (2011) 52 Cal.4th 610, 675.) Hansen's attorney did not do so, and the Attorney General's attempt to attribute her acquiescence to an unexpressed tactical purpose is not persuasive.
The Bench Notes to CALCRIM No. 3500 state: "The court has no sua sponte duty to instruct on unanimity if the offense constitutes a 'continuous course of conduct.' (People v. Maury (2003) 30 Cal.4th 342, 423 . . . .)" (Bench Notes to CALCRIM No. 3500, supra, at p. 1067.) Hansen concedes that the harassment element of stalking comes within the "course of conduct" exception to the rule requiring such an instruction, but argues that the credible threat element does not. That element, he contends, can be shown by a course of conduct or by a discrete comment, and the prosecutor here offered evidence of several discrete comments a jury could find to be threats. While Hansen cites only decisions holding stalking to be a course of conduct crime for which no unanimity instruction is required, he contends those decisions did not adequately, separately analyze the need for unanimity regarding the credible threat element. (See, e.g., People v. Jantz (2006) 137 Cal.App.4th 1283, 1291-1293; People v. Zavala (2005) 130 Cal.App.4th 758, 759.) This novel claim fails because the prosecutor's closing argument here eliminated any arguable need for a unanimity instruction.
If the evidence in a case suggests more than one possible crime, the prosecutor can obviate the need to instruct on unanimity by electing among them. (People v. Russo, supra, 25 Cal.4th at p. 1132.) In the stalking case of People v. Jantz, supra, 137 Cal.App.4th 1283, a unanimity instruction was unnecessary because the prosecutor elected a specific threat as the basis for the offense, and "references to possible other threats during closing argument did not undermine that election." (Id. at p. 1292.) The record here warrants a similar conclusion: In her closing argument, the prosecutor consistently and unambiguously urged the jury to find a credible threat based on Hansen's course of conduct, not based on any discrete message assertedly satisfying that element by itself. No unanimity instruction was required.
The prosecutor began the relevant part of her argument by stating, "Element 2 is that Mr. Hansen was doing these things, and this course of conduct was itself a credible threat. So you have credible threat." She made six similar comments, culminating in the conclusion of her rebuttal statement: "Mr. Hansen credibly threatened, through his course of conduct, to keep increasing his [restraining order] violations, to keep harming [D.K.]. He did it on purpose and he's guilty as charged. Thank you."
III.
One of Hansen's Two Counts of Conviction Must Be Stricken
The Attorney General concedes the validity of Hansen's claim that, because his two stalking convictions arose from the same course of conduct, one must be stricken. We agree.
While an accusatory pleading may charge different statements of the same offense, a court cannot convict a defendant of two differently stated versions of the same offense based on the same conduct. (People v. Vidana (2016) 1 Cal.5th 632, 649.) Subdivisions (a) and (b) of section 646.9 do not define distinct offenses; rather, the latter is a penalty provision authorizing a stricter punishment for the same offense defined in the former if the defendant committed the offense while subject to a restraining order. (People v. Muhammad (2007) 157 Cal.App.4th 484, 494.) Here, the information charged Hansen with one count of stalking between May 19 and July 12, 2021, while subject to such an order, in violation of subdivision (b) of section 646.9, and one count of stalking between May 15 and July 12, 2021, without reference to a restraining order, in violation of subdivision (a). The prosecutor offered no evidence of conduct between May 15 and May 18, 2021, that could support a separate conviction. The conviction on count 2, under subdivision (a), must be vacated. (Muhammad, at p. 494.)
IV.
Hansen's Presentence Credits Must Be Corrected
The Attorney General also concedes that Hansen's presentence custody credits must be corrected. Hansen was in custody for 103 days through sentencing, but his trial attorney miscounted the total as 101 days. In accord with that miscounting, the trial court awarded 202 total days of presentence credit. Hansen was in fact entitled to 205 days of presentence credit: 103 days of actual custody credit and 102 days of conduct credit. (§ 4019, subds. (a)-(c), (f); People v. Whitaker (2015) 238 Cal.App.4th 1354, 1358.) The record must be corrected accordingly.
V.
The Criminal Protective Order Must Be Modified to Exclude D.K.'s Immediate Family
Hansen's final claim is that the trial court exceeded its authority under section 646.9(k) by issuing a 10-year criminal protective order barring him from contacting not only D.K.-as was concededly proper-but her husband and children. Whether a protective order is authorized by statute is a question of law subject to de novo review. (People v. Race (2017) 18 Cal.App.5th 211, 217 (Race); People v. Delarosarauda (2014) 227 Cal.App.4th 205, 210 (Delarosarauda).) Our review of the order itself is subject to the more deferential substantial evidence review in which we" '" 'imply all findings necessary to support the judgment'" '" and determine" '" 'whether there is substantial evidence in the record to support these implied findings.'" '" (Race, at p. 217.)
We first address the Attorney General's threshold argument that Hansen forfeited his claim by failing to object to the inclusion of D.K.'s family in the order. (People v. Scott (1994) 9 Cal.4th 331, 356; People v. Saunders (1993) 5 Cal.4th 580, 589-590.) Hansen admits that defense counsel failed to object when the trial court stated at the sentencing hearing that it would issue a criminal protective order protecting D.K. for "the maximum term of ten years" and that "any household members of the victim's family can be included in that order as well," but argues that the issue may nevertheless be reached because it is a jurisdictional issue which raises a pure issue of law. He is correct.
In People v. Robertson (2012) 208 Cal.App.4th 965, 995, a defendant's claim that a "no-contact" order was without statutory authority was "cognizable despite [defendant's] failure to object to the no-contact order during the sentencing hearing." (See also People v. Ponce (2009) 173 Cal.App.4th 378, 381 [protective order unauthorized by section 136.2 can be addressed on appeal despite failure to raise issue in the trial court].) We reject the Attorney General's position that the issue can only be decided based on the "particular sentencing record" developed below. No sentencing record is required to decide the purely legal question of whether section 646.9(k) can ever authorize an order barring contact with the named victim's immediate family members. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.)
Even if Hansen's claim did not raise a purely legal issue regarding the court's authority under section 646.9(k) to issue a protective order which includes the victim's family members, we would exercise our discretion to decide the issue. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [reviewing court may reach forfeited claim]; People v. Crittenden (1994) 9 Cal.4th 83, 146 [reviewing court may reach forfeited issue to forestall potential claim that counsel's failure to object deprived defendant of his right under state or federal Constitutions to effective assistance of counsel].)
We next address whether section 646.9(k) authorized the trial court to include the victim's family members as protected parties. To interpret this subdivision of section 646.9 we "look first to the words the Legislature used, giving them their usual and ordinary meaning." (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) If the statutory language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.) Only if the language permits more than one reasonable interpretation may courts consider other aids such as the statute's purpose, legislative history, and public policy. (Ibid.)
Section 646.9(k) states: "The sentencing court also shall consider issuing an order restraining the defendant from any contact with the victim, that may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family." (§ 646.9(k), italics added.) Hansen argues the statute authorized an order barring contact only with D.K., "the victim" he was convicted of stalking, not her "immediate family," whose safety could be considered only in setting the length of the order restraining contact with "the victim." His interpretation of the statute is correct.
As discussed above, stalking occurs under section 646.9 if a person "repeatedly follows or . . . harasses another person and . . . 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." (§ 646.9, subd. (a), italics added.) The statute defines "harasses" to mean "engages in a knowing and willful course of conduct directed at a specific person," and "credible threat" to mean a threat made with an 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." (Id., subds. (e), (g), italics added.) Echoing the distinction between the "specific person" harassed and threatened, on one hand, and "his or her immediate family," on the other, section 646.9(k) authorizes "an order restraining the defendant from any contact with the victim . . . for up to 10 years" and directs that "the length of any restraining order be based upon" factors that include "the safety of the victim and his or her immediate family." (Ibid.) Given the statute's consistent distinction between "the victim" and "his or her immediate family," and its definition of the offense as having a single, specified victim who is the target of the harassment and threat, we conclude that section 646.9(k) authorizes the court to enjoin the defendant from postconviction contact with "the victim," not "the victim and his or her immediate family."
In People v. Clayburg (2012) 211 Cal.App.4th 86 (Clayburg), a divided Second District panel held that "a member of the immediate family of a stalking victim . . . who suffers emotional harm . . . is a 'victim' for purposes of a post-conviction restraining order." (Id. at p. 88.) The defendant in Clayburg was convicted of stalking her ex-husband, who had custody of their child. (Id. at p. 89.) The child suffered fear and anxiety after witnessing acts of vandalism and stalking. (Id. at pp. 89-90.) The defendant challenged a protective order issued under section 646.9(k) insofar as it restrained her from contacting her child. (Clayburg, at p. 90.) The majority acknowledged that if it "put horse blinders on and read the first sentence in isolation, she would prevail." (Id. at p. 91.) But it held such a reading reflected a" 'dictionary school of jurisprudence'" and would yield"' "a grotesque caricature of the Legislature's purpose." '" (Ibid.) After determining that the record supported a finding that the "daughter is a person who suffered emotionally and who was traumatized by [defendant's] conduct," it rejected defendant's challenge to the protective order. (Ibid.)
As the majority in Clayburg acknowledged, the plain language of section 646.9 indicates that protective orders issued pursuant to section 646.9(k) should be limited to stalking victims. (Clayburg, supra, 211 Cal.App.4th at p. 91.) Yet the court nevertheless held that "[n]otwithstanding the phrasing of the statute, it is apparent that the Legislature wants the judiciary to protect the child of a named stalking victim." (Ibid.) For the reasons discussed above, we disagree with Clayburg's expansive reading of section 646.9(k), and note that we are not the only court to do so. In Delarosarauda, supra, 227 Cal.App.4th 205, a defendant convicted of domestic violence against his son's mother challenged the trial court's imposition of a protective order in favor of not only the victim, but also defendant's stepdaughter, who had witnessed the abuse, and his son, despite the victim's testimony that defendant" 'never touched' the children." (Id. at pp. 209, 211.) After determining that "section 136.2, subdivision (i)(1) does not provide statutory authorization for the issuance of a protective order forbidding . . . contact with [the children]," Delarosarauda stated its "disagree[ment] with the Clayburg majority's interpretation of the language in" section 646.9(k). (Delarosarauda, at p. 211.) The court rejected the idea that the second sentence of section 646.9(k) "expanded the meaning of 'victim' in the first sentence to include 'a member of the immediate family of a stalking victim . . . who suffers emotional harm.'" (Delarosarauda, at p. 212.)
In addition to his reliance on Clayburg, the Attorney General argues that the inclusion of D.K.'s family in the order can be upheld under a line of decisions which assess when children related to victims of domestic violence or sexual abuse can be included in protective orders issued under section 136.2, subdivision (i)(1). This argument fails to acknowledge that although the language of section 646.9(k) and that of section 136.2, subdivision (i)(1) are "substantially similar," "victim" is separately and more broadly defined under section 136 for protective orders issued under section 136.2, subdivision (i)(1), and this definition has no application to section 646.9(k).
Delarosarauda, supra, 227 Cal.App.4th at page 211.
Pursuant to section 136, the term "victim" for the purpose of a protective order issued pursuant to section 136.2, subdivision (i)(1) "means any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other state or of the United States is being or has been perpetrated or attempted to be perpetrated." (§ 136, subd. (3).)
Each case the Attorney General cites is distinguishable in that the court was called upon to determine if the family member, him or herself, qualified as a "victim" under section 136. For example, in People v. Lopez (2022) 75 Cal.App.5th 227, the court held that postjudgment protective orders issued pursuant to section 136.2, subdivision (i)(1) "are limited to defendants convicted of crimes that qualify as' "domestic violence"' and where the protected person qualifies as a' "victim"' of said crime(s)." (Lopez, at p. 237.) The court accepted the stipulation of the parties that "the minor children were not victims of a crime of domestic violence within the meaning of . . . section 136.2, subdivision (i)(1) [when] [t]hey were present but asleep" during the crime, and it remanded with directions to remove the children's names from the protective order. (Id. at pp. 237-238; see also People v. Race, supra, 18 Cal.App.5th at pp. 215-216, 219 [assessing whether children were victims]; Delarosarauda, supra, 227 Cal.App.4th at p. 211 [same].)
Finally, even if we agreed with the more expansive interpretation of section 646.9(k) adopted by the Clayburg majority or accepted the Attorney General's contention that the cases decided under section 136.2, subdivision (i)(1) are analogous, there is simply no evidence in the record- contrary to the Attorney General's brief assertion otherwise-from which the trial court could have determined that D.K.'s husband or children were "victims" of Hansen's harassment or threats as that term is defined by statute. Accordingly, Hansen's request to strike the names of D.K.'s family members from the protective order must be granted.
DISPOSITION
Hansen's conviction on count 1 (§ 646.9, subd. (b)) is affirmed. His conviction on count 2 (§ 646.9, subd. (a)) is vacated. The matter is remanded to the trial court with directions to dismiss count 2, modify the sentencing minute order and order of probation to reflect presentence custody credits of 205 days, and modify the criminal protective order so that it lists no person other than D.K as a protected person. As modified, the judgment is affirmed.
We concur: Richman, Acting P. J. Miller, J.
[*] Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.