Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF104445 Stephen Graham, Judge. (Judge of the Marin Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Bradley A. Weinreb, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
Defendant Michael Francis Lang was convicted of one count of stalking his estranged wife in violation of Penal Code section 646.9. The offense occurred in 2002. The jury was erroneously given instructions based on a subsequent amendment to the statute which eliminated certain elements. Defendant contends that the error was not harmless beyond a reasonable doubt. We agree, and we reverse his conviction.
All statutory citations refer to the Penal Code unless otherwise specified.
PROCEDURAL HISTORY
By a fourth amended information, defendant was charged with stalking (count 1; § 646.9, subd. (a)); residential burglary (count 2; § 459); receiving or possessing stolen property (count 3; § 496, subd. (a)); making criminal threats (counts 4 & 5; § 422); and misdemeanor violation of a protective order (count 6; § 273.6, subd. (a)). The information also alleged that defendant had a prior serious felony conviction within the meaning of sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1).
Defendant’s first trial resulted in a hung jury, and a mistrial was declared. On retrial, the court dismissed count 4 (criminal threats) without submitting it to the jury, apparently having found that the statute of limitations on that count had run before it was added to the fourth amended information. The jury convicted defendant on count 1 only. It acquitted him on counts 2, 3 and 6, and was unable to reach a verdict on count 5. The court declared a mistrial as to count 5 and later dismissed it on motion of the prosecution. Defendant admitted his prior serious felony conviction.
The court sentenced defendant to the upper term of three years and doubled it pursuant to section 667, subdivision (e)(1). It imposed a restitution fine of $2,000 and a court security fee of $20, and imposed and stayed a parole revocation fine. The court also imposed a protective order requiring defendant to refrain from any contact with the victim and specified members of her family and to remain at least 100 yards away from them. The order was effective for 10 years. Defendant was given credit for a total of 2,772 days in custody. He was immediately released on parole.
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
Defendant and his ex-wife, Wendy K., were married for seven and a half years. They had met at a meeting of Narcotics Anonymous. During their marriage, they had one son, Michael Jr. or Mikey. Defendant’s three children from a prior relationship also lived with them for most of their marriage. They regarded Wendy as their mother and called her “Mom.”
The marriage fell apart after Wendy discovered a marijuana joint in a pack of defendant’s cigarettes. She tried to be supportive, but after several additional relapses, some involving drug or alcohol use around the children, Wendy decided to end the marriage. In December 2001, defendant moved out of the family home on Dawn Ridge in Corona, but after a few days, he moved back in. He told Wendy that since she was the one who wanted a separation, she should be the one who moved out. Wendy moved to an apartment just across a small park from the Dawn Ridge house and took Michael Jr. with her.
For several months, defendant and Wendy tried to resolve their marital issues. During that time, Wendy would pick up the children from the Dawn Ridge house and she also did her laundry and the children’s laundry there. She began to notice that some of her clothing was missing. Defendant later returned the missing items. She also noticed that her wedding ring and her journal were missing from her apartment. Those items were never recovered.
At the end of March 2002, Wendy decided to file for divorce. She informed defendant in April. He was very upset, and told her that if she ended the marriage, she wouldn’t see his three children any more. One afternoon after that, defendant came by Wendy’s apartment. He was “crying and out of control.” He tossed a bag of marijuana into her lap and asked her why she was doing this to him. She interpreted that to mean that he blamed her for his drug use. She was not afraid of him because he had never been physically or emotionally abusive.
In April, defendant’s behavior changed. He began to call her obsessively, placing 10 to 15 calls a day to her home, office and cell phones. After she filed for divorce in May 2002, defendant would not let her see the children. He began to show up unexpectedly in places where Wendy happened to be. He called her every day, often many times a day. He called sometimes through the night. Wendy did not answer most of his calls. She asked him to stop calling her.
On May 14, while Wendy was taking a shower, she saw defendant standing on the balcony of her apartment, looking into her bedroom through the sliding glass door. She opened the shower door and asked defendant what he was doing. He replied that she had not answered her door or her phone. She told him to leave and he did. She thought the incident was “strange and creepy,” but she did not think it warranted calling the police.
Defendant approached Wendy in the parking lot one evening after she had attended a Narcotics Anonymous meeting. He asked, “Why are you doing this to me?” He followed her to a dance and followed her around. She asked the bouncers to ask him to leave. He also approached her at their son’s baseball game and yelled at her. Another parent asked him to leave.
Wendy finally reported defendant’s conduct to the police on or about June 7, 2002, after defendant entered her apartment at 1:00 a.m. without her permission, using a key he had had made, also without her permission, when he borrowed her van some months before. After being released on bail, defendant told Wendy that he still had a key to her apartment and threatened to destroy her property. Defendant later admitted that he had entered her apartment and had stolen some of the items which were missing. He returned her clothing after she reported this to the police.
Near the end of June, Wendy took defendant’s son Steven to an out-of-town baseball tournament. Defendant came to the airport to see them off. He asked Wendy to kiss him and became angry when she refused. He called her while she was away and accused her of having sex with another man. He met them at the airport when they returned and again tried to kiss Wendy. He made a scene when she refused.
Defendant called Wendy at a time when he had their son Mikey with him. He asked Wendy how it felt to be alone. She took that as an implied threat to harm Mikey. Wendy believed that defendant tampered with her car a few days later. The car would not start. When she returned to the car, defendant was there and had fixed it, even though she had not told him what was wrong with it. A few days later, the police searched defendant’s home. They found a “God box,” a device used by members of Narcotics Anonymous, which contained a handwritten note stating, “Please, God, help me release the obsession that I have of Wendy.”
Defendant continued to make frequent and angry telephone calls to Wendy and to appear in places where she happened to be. In one instance, she discovered a flat tire on her car after defendant had been in the area.
In August, defendant called Wendy and said that he had a gun and was going to kill himself. Wendy called the police, then went to defendant’s house. Defendant blamed Wendy for the incident. The next day, Wendy had to stop her car in the middle of the highway because she was too upset to continue driving. She called her mother, but was unable to speak. She described the incident as a nervous breakdown.
Wendy started to date Joe Kelly, whom she eventually married, in October 2002. Defendant confronted her about the relationship and called her a whore, a cheat and a liar. He told Wendy to “watch [her] back” and threatened to kill her. Wendy feared for her life and called the police. Defendant threatened her life again in late November or early December. He said that the flash from his gun would be the last thing she saw. Wendy reported this to the police.
The police told Wendy in early December that a warrant had been issued for defendant’s arrest. Defendant was arrested later that month. On December 18, he called Wendy from jail and told her that he would kill her, even if it took him three years or five years to do so.
LEGAL ANALYSIS
THE COURT’S FAILURE TO INSTRUCT CORRECTLY ON THE ELEMENTS OF STALKING REQUIRES REVERSAL
The jury instruction on stalking failed to include two elements which were present in the version of the statute which was in effect in 2002, when his offense was committed. Defendant contends that the error was not harmless beyond a reasonable doubt. We agree.
In 2002, the pertinent portions of section 646.9 provided as follows:
“(a) Any person who willfully, maliciously, and repeatedly follows or 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 . . . . [¶] . . . [¶]
“(e) For the purposes of this section, ‘harasses’ means a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. This course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. [Italics added.]
“(f) For purposes of this section, ‘course of conduct’ means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. . . .”
In People v. Ewing (1999) 76 Cal.App.4th 199 (Ewing), the court defined “substantial emotional distress” as used in former section 646.9, subdivision (e) by analogy to “severe” emotional distress as used in the tort of intentional infliction of emotional distress. “Severe” emotional distress means “‘highly unpleasant mental suffering or anguish “from socially unacceptable conduct” [citation], which entails such intense, enduring and nontrivial emotional distress that “no reasonable [person] in a civilized society should be expected to endure it.” [Citations.]’ [Citation.]” (Ewing, at p. 211.) In 2002, in response to Ewing,and to complaints from district attorneys and others who asserted that the definition of harassment, including the requirement of proof of “substantial emotional distress,” made it too difficult to obtain convictions, the Legislature amended section 646.9 to “redefine course of conduct to mean 2 or more acts, as specified, [to] eliminate the requirement that the conduct be such as would cause a reasonable person substantial emotional distress to be considered harassment, and [to] eliminate the requirement that the conduct in fact cause substantial emotional distress to be deemed harassment under these provisions.” (Stats. 2002, ch. 832; see Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1320 (2001-2002 Reg. Sess.) pp. B-C, E-F; Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1320 (2001-2002 Reg. Sess.) as amended May 8, 2002, pp. 1-4.) Subdivision (e) of section 646.9 now provides, “For the purposes of this section, ‘harasses’ means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.” Defendant’s jury was instructed with this definition of harassment.
The court in Ewing actually held that substantial emotional distress is less than severe emotional distress. It held that the “severe” emotional distress standard quoted above is “instructive” in determining whether there was sufficient evidence to sustain the verdict in that case, but it did not make clear the precise standard it was applying. (Ewing, supra, 76 Cal.App.4th at pp. 210-211.) Courts interpreting Code of Civil Procedure section 527.6, which contains language virtually identical to the language of former section 646.9, subdivision (e), have held that substantial emotional distress is synonymous with severe emotional distress. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762-763; accord, Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1414.)
The amendment to section 646.9, subdivision (f) is discussed below.
Under the due process guarantees of both the California and the United States Constitutions, the prosecution has the burden of proving beyond a reasonable doubt each essential element of the crime, and the defendant has a right to have the jury determine the existence of each essential element beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 481 (Flood).) Consequently, it is axiomatic that a jury must be instructed with the correct elements of a charged offense. (People v. Prettyman (1996) 14 Cal.4th 248, 285.) The omission from the jury instructions of one or more elements of the offense is reversible unless the government can demonstrate that the error was harmless beyond a reasonable doubt. (Flood,at p. 505; Neder v. U.S. (1999) 527 U.S. 1, 8-15 (Neder); Chapman v. California (1967) 386 U.S. 18, 24.)
The Attorney General concedes that the instruction was erroneous because it omitted the requirement of substantial emotional distress and allowed defendant to be convicted under a standard which the Legislature designed to lighten the prosecution’s burden of proof. He argues, however, that the error was harmless because the evidence “clearly” supports a finding that defendant’s conduct met the criteria of former section 646.9, subdivision (e).
The Attorney General’s argument appears to be based on the premise that the error is harmless as long as there is substantial evidence from which a reasonable trier of fact could determine that the omitted element was proven beyond a reasonable doubt. That is not the standard of review. A jury may find for the defendant even if the evidence regarding an element of the crime on its face favors the prosecution, if the jury concludes that the evidence “nevertheless falls short of proving the element beyond a reasonable doubt.” (Flood, supra, 18 Cal.4th at p. 481.) For this reason, in this context, harmless error review does not address the effect the omission might generally be expected to have upon a hypothetical reasonable jury, i.e., whether such a jury could have found the defendant guilty based on the evidence before it: “The test is not whether a hypothetical jury, no matter how reasonable or rational, would render the same verdict in the absence of the error, but whether there is any reasonable possibility that the error might have contributed to the conviction in this case. If such a possibility exists, reversal is required.” (People v. Lewis (2006) 139 Cal.App.4th 874, 887.) Therefore, it is not sufficient that a jury could have made the finding in question based on the evidence before it. Rather, we must be able to say beyond a reasonable doubt that it would have done so.
The circumstances under which a reviewing court can find the failure to instruct on an element of the offense harmless are very limited: The error can be deemed harmless if the omitted element is uncontested or is supported by uncontroverted evidence “such that the jury verdict would have been the same absent the error.” (Neder, supra, 527 U.S. at pp. 15-18.) Put another way, if the defendant “did not, and apparently could not, bring forth facts contesting the omitted element,” the court can say beyond a reasonable doubt that the omission of the element from the jury instructions did not contribute to the verdict. (Id. at p. 19; cf. Flood, supra, 18 Cal.4th at p. 507 [omission may be deemed harmless if it concerned “an uncontested, peripheral element of the offense, which effectively was conceded by defendant, was established by overwhelming, undisputed evidence in the record, and had nothing to do with defendant’s own actions or mental state”].)
The case before us differs from Flood and Neder. In both of those cases, the prosecution presented evidence which directly supported a finding on the element which was omitted from the jury instructions. In Neder,the defendant was charged with making a false statement on his tax return. To obtain a conviction, the prosecution was required to prove that the defendant filed a tax return “‘which he does not believe to be true and correct as to every material matter.’ [Citation.]” (Neder, supra, 527 U.S. at p. 16.) The prosecution introduced evidence that Neder failed to report over $5 million in income. The jury was not instructed that it had to determine whether the false statement was material. The defendant did not dispute the amount, nor did he argue that his false statement of income could be found immaterial. Instead, he argued that the amount, derived from loan proceeds, was not income and that he reasonably believed he was not required to report it as income. (Id. at pp. 16-17.) The United States Supreme Court found the omission harmless because the evidence in support of the element of materiality was overwhelming, it was uncontested, and there was no suggestion that the defendant could have produced any evidence to support a contrary finding. (Id. at p. 19.) In Flood,the defendant was charged with evading a police officer and the jury instructions failed to require the jury to determine that the pursuing individuals were in fact police officers. Both officers testified that they were police officers, however, and the defendant did not contest the issue at trial. (Flood, supra, 18 Cal.4th at pp. 475-477.) Thus, in both cases, there was uncontested evidence which was specifically directed toward the element which was omitted from the jury instruction.
Here, however, because neither party apparently recognized that it was necessary to prove that defendant’s course of conduct was “such as would cause a reasonable person to suffer substantial emotional distress” and that it actually caused Wendy to suffer substantial emotional distress (former § 646.9, subd. (e)), neither party presented any evidence specifically directed to that element. Wendy testified in rather general terms that defendant’s death threats caused her to fear for her life and that the “suicide” incident cause her to have what she termed a “nervous breakdown.” She did not describe the depth of the distress these incidents caused her, nor did she describe the duration of the emotional distress she felt. For example, her “nervous breakdown,” as she described it, was confined to a single incident in which she was so upset that she could not drive her car and was unable to speak when she tried to phone her mother. Wendy’s friend, Lysa K., also testified that Wendy was upset and sometimes frightened by defendant’s phone calls, and a police officer testified that on the day of defendant’s “suicide” incident, Wendy was frightened. Because neither side actually addressed the issue, it was neither uncontested nor conceded, as in Flood and Neder.
A second distinction between this case and Flood and Neder is that in those cases, evidence in support of the element omitted from the instructions was sufficiently concrete that a reviewing court could assess the likelihood that the jury would have found that element proven beyond a reasonable doubt if it had been instructed on the element. The evidence did not require the jury to weigh conflicting evidence, determine the credibility of witnesses or decide which of several inferences could be drawn from the evidence. Here, in contrast, the determination that Wendy actually suffered substantial emotional distress is not one that a reviewing court can determine from a cold record. Rather, that determination depends not just on the words Wendy used to describe her mental state but on the jury’s perception of her demeanor while testifying. That, of course, is something a reviewing court cannot assess: “The cold record cannot give the look or manner of the witnesses; their hesitations, their doubts, their variations of language, their precipitancy, their calmness or consideration. A witness may convince all who hear him testify that he is disingenuous and untruthful, and yet his testimony, when read, may convey a most favorable impression. Did plaintiff and her mother testify with the conviction and assurance compatible with truthfulness; or did either of them give testimony haltingly as though laboring under the handicap of apprehension and uncertainty or did either of them give it glibly as though a tale learned by rote for the purposes of the courtroom? These are questions which can only be answered by the trier of fact. The court having seen and heard the parties may well have concluded that there was collusion; that the plaintiff's testimony was a fabric of fancy and exaggeration woven to lift her from bonds now distasteful; and that the testimony of plaintiff's mother was a recital of rehearsed evidence.” (Maslow v. Maslow (1953) 117 Cal.App.2d 237, 243, disapproved of on another ground in Liodas v. Sahadi (1977) 19 Cal.3d 278, 287.) See also In re Sheila B. (1993) 19 Cal.App.4th 187: “[A]n appellate court defers to the trier of fact on such determinations, and has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.]” (Id. at p. 199.) We cannot determine how the jury might have assessed Wendy’s demeanor or credibility, if it had been asked to determine the degree of emotional distress she suffered as a result of defendant’s conduct.
In Brekke v. Wills, supra, 125 Cal.App.4th 1400, the court found substantial evidence that the plaintiff in a civil harassment action suffered substantial emotional distress based on the plaintiff’s “statements and demeanor” while testifying. (Id. at p. 1415.) The court did not say how it determined what the plaintiff’s demeanor was, or how it could assess it.
Where resolution of the issue depends so critically on the jury’s perception of the evidence, as it does in this case, we cannot say with confidence how the jury would have responded if the issue had been presented to it. Accordingly, we cannot say beyond a reasonable doubt that the omission of the element of substantial emotional distress did not contribute to the verdict.
Defendant also contends that the instruction was defective because it failed to instruct the jury that “course of conduct” means “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” (Former § 646.9, subd. (f).) Rather, it was instructed in the language of section 646.9, subdivision (f), as amended, that “course of conduct” means “two or more acts occurring over a period of time, however short, demonstrating a continuous purpose.” We fail to see any meaningful distinction between the two versions of subdivision (f). In any event, we need not address the substance of defendant’s argument because we have determined that his conviction must be reversed on other grounds. Nevertheless, on retrial, the court is directed to instruct the jury in accordance with the version of section 646.9 as in effect in 2002 in all respects.
THE COURT HAD JURISDICTION TO IMPOSE A 10-YEAR PROTECTIVE ORDER
Defendant also contends that the court had no jurisdiction to impose a 10-year protective order pursuant to section 1203.097. Defendant is correct that section 1203.097 applies to orders for probation. However, section 646.9, subdivision (k), as in effect in 2002, also provided for a restraining order valid for up to 10 years. Accordingly, if defendant is convicted upon retrial, the court may impose such an order if it chooses.
DISPOSITION
The judgment is reversed and the matter is remanded for a new trial on the charge of stalking in violation of section 646.9. The trial court is directed to instruct the jury in accordance with the version of section 646.9 which was in effect at the time of the charged offense.
We concur: Gaut J., King J.