Brief Bank # B-700 (Re: LIO VI [LESSER INCLUDED CHECKLIST: PC 646.9 – Felony Stalking OFFENSES INCLUDED: a. Violation Of A Restraining Order (PC 273.6)].)
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III
IT WAS REVERSIBLE ERROR FOR THE COURT NOT
TO INSTRUCT THE JURY WITH THE LESSER INCLUDED
OFFENSE INSTRUCTION OF MISDEMEANOR
VIOLATION OF A RESTRAINING ORDER
A. The Trial Court Erred In Failing To Instruct On Violation of a Restraining Order Because lt Was A Lesser Included Offense To The Stalking Charge As Charged In This Case And Because There Was Substantial Evidence To Support A Conviction Of Violation of A Restraining
Trial courts must instruct a jury on all necessarily included offenses whenever the evidence could justify a conviction of the lesser offense, (People v. Wickersham (1982) 32 Cal.3d 307, 325,) Here, because violation of a restraining order (section 273.6) was a lesser included offense to the charged stalking while a restraining order was in effect, and because there was substantial evidence showing that Mr. Doe may only have been guilty of violating a restraining order, instructions on this lesser offense were required sua sponte.
1. Violation Of A Domestic Violence Restraining Order Was A Lesser Included Offense To The Stalking While A Restraining 0rder In Effect As Charged In The Information.
The California Supreme Court has made clear that there are two distinct methods of determining whether on uncharged offense is necessarily included in a charged greater offense. First, instruction is required “if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” (People v. Geiger (1984) 35 Cal.3d 510, 517, fn.4,) Second, if the lesser offense is “necessarily included” within the statutory definition of the charged offense, conviction of the included off offense is expressly authorized under section 1159. People v. Lohbauer (1981) 29 Cal.3d 364.)
It is black letter law that the trial court must instruct the jury on every theory of the case which is supported by substantial evidence. People v. Edwards (1985) 39 Cal.3d 107. The court may not weigh the substantiality of the evidence to support an instruction by weighing the credibility of the defendant’s testimony. (People v. Glenn (1991) 229 Cal.App,3d 1461.)
An illustrative example of how the need to instruct on a lesser can change depending on the charges is found in People v. Mathis. When a prosecutor charges pandering in statutory terms, contributing to the delinquency of a minor is not a lesser included offense. People v. Mathis (1985) 173 Cal.App.3d 1251, 1257.) When the prosecutor charges pandering and alleges that the victim was a minor, contributing to the delinquency of a minor is a lesser included offense and the trial court must instruct accordingly. Id. See also People v. Story(1985) 168 Cal.App.3d 849, 854; People v. Daniels (1969) Cal.App.3d 367, 378; People v. Troyn (l964) 229 Cal.App.2d 181, 184-185.)
The crime of which appellant stands convicted, stalking with a restraining order in effect, is defined 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, punishable by imprisonment in a county jail for not more than one year or by a fine of not more than one thousand dollars ($l,000), or by both that fine and imprisonment, or by imprisonment in the state prison.
(b) Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the some party, shall be punished by imprisonment in the state prison for two, three, or four years. (§646.9)
Violation of a restraining order is c misdemeanor and is defined as follows:
(a) Any intentional and knowing violation of a protective order, as defined in Section 6218 of the Family Code, or of an order issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure is a misdemeanor punishable by a fine of not more than one thousand dollars ($1, 000), or by imprisonment in a county jail for not more than one year, or by both the fine and imprisonment. (§ 273.6)
The statutory definition of stalking with a restraining order in effect necessarily includes violation of a restraining order since the restraining order must restrain the defendant from “stalking” type behavior and be in effect when the defendant is accused of violating its terms. Further, the lesser crime is necessarily committed within the meaning of Geiger because the charged offense includes language defining the crime so that it could not be committed otherwise. As one recent stalking decision has explained: “If conduct violates subdivision (a) (of the stalking statute) but not (b), then a conviction under subdivision (a) lies. If the converse is true, a conviction under section 273.6 (violation of a domestic violence or civil harassment restraining order) or section 166.4 (violation of court order) lies. Where, as here, the conduct violates both subdivision (a) and a restraining order, a violation of section 646.9 (b) occurs.” People v. McClelland (Jan.31, 1996) 96 Daily Journal D.A.R. 1100.)
2. There Was Substantial Evidence Upon Which The Jury Could Have Convicted Mr. Doe Of Violation Of A Restraining Order.
Instructions on a lesser included offense should be given whenever a “defendant proffers evidence enough to deserve consideration by the jury, i.e. evidence from which a jury composed of reasonable men could have concluded that (the particular facts underlying the instruction did exist) …. Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.” People v. Flannel (1979) 25 Cal.3d 668, 684-685.) As the Court later explained, this rule “simply frees the court from any obligation to present theories to the jury which the jury could not reasonably find to exist.” People v. Wickersham supra 32 Cal.3d at p. 324-325.)
Given the minor nature of Mr. Doe’s intrusion into his wife’s life and the fact he never attempted to physically assault her or otherwise harm her in anyway, the jury could have very well found that appellant had violated the restraining order but had not engaged in conduct rising to the level of felony stalking. Obviously if mere violation of a restraining order always resulted in felony stalking the misdemeanor violation would serve no function. he jury’s verdict lends substantial support to the position that the misdemeanor instruction was warranted.
Of significance in regards to the jury’s finding is that the jury acquitted appellant of making terrorist threats. As noted above, this statutory crime requires that there be a threat of death or great bodily harm that reasonably puts the victim in fear of his or her own safety or that of a family member. (§ 422.) Thus, one can conclude that the jury did not take the statement “you’re dead meat“ as a literal threat to physically harm Mrs. Doe.
Also of significance is the fact that the jury also acquitted Mr. Doe of felony stalking under section (a) of that statute suggesting that they may have erroneously believed that simply violating the restraining order was sufficient to violate section (b). While it is true that the information charged different time periods in count one, relating to section (a), October 11, 1994 and December 5,1994 and count two, October 24,1994 and December 5,1994, the two time periods overlap during the crucial periods when appellant was attempting to speak to Mrs. Doe at the family home. (CT 37.) One simply cannot argue with the fact that if the jury believed that appellant was guilty of stalking between October 24 and December 5 in count two, that that same behavior it found to be stalking would necessarily have to also constitute stalking under count one, since it encompassed this some time period and more.
Under these circumstances, “a jury composed of reasonable men could have concluded that the particular facts underlying the instruction did exist.” (People v. Flannel supra 25 Cal.3d at pp, 684-685.) The evidence in this case could certainly have allowed a “jury composed of reasonable men” to conclude that although Mr. Doe mcy have violated the restraining order, his conduct did not rise to the level of felony stalking.
B. The Trial Court’s Failure To Instruct On The Lesser Included Offense Requires A Reversal Of Appellant’s Conviction
When a trial court has failed to instruct the jury on a lesser included offense suggested by the evidence, a reversal is required unless the factual question posed by the omitted instruction was necessarily resolved adversely to defendant under other, properly given instructions. People v. Ramkeesoon (1985) 39 Cal.3d. 346, 351-352.) “Such an error cannot be cured by weighing the evidence and finding it not reasonably probable that a correctly instructed jury would have convicted the defendant of the lesser included offense.” (People v. Ramkeesoon supra 39 Cal.3d at p. 332; People v. Wickersham supra 32 Cal.3d at p.35.)
The factual question posed by the omitted instructions in this case was not resolved by the jury under any other instructions. As discussed above, it is apparent there are some indications in the record that the jury did not believe that appellant’s conduct was rose to the level of stalking conduct. However, because the jury received no lesser instruction, it really had no choice but to allow Mr. Doe’s violation of the restraining order to go unpunished by an acquittal or to convict him of the felony crime. Thus the jury was given an all or nothing choice where there was clear evidence that appellant had come within 100 yards of the family home, but had not necessarily engaged in felony stalking behavior. (See, e.g. People v. Woods (1992) 8 Cal.App.4th 1570, 1585-1590.) As the California Supreme Court has observed, ‘the People have no legitimate interest in obtaining a conviction on a greater offense than that established by the evidence, (and) a defendant has no right to an acquittal when the evidence is sufficient to establish a lesser included offense.’ (Id. at p. 1589, quoting People v. Sedeno, supra (1974) 10 Cal.3d 703, 716, citing People v. St. Martin (1970) Cal.3d 524, 533. The jury received no lesser included offense instructions on this count. [Footnote 1] Accordingly, since the jury did not resolve this factual question under other instructions, reversal of appellant’s conviction is required.
FOOTNOTES:
Footnote 1: Appellant filed a motion for a new trial pointing out this apparent jury inconsistency as well as a motion to reduce the offense. The court denied both motions and noted that it had asked if anybody wanted any lesser included offenses and that the answer was no. (RT542,553,551,555.) However the jury instruction discussion, which is reported in the record on appeal does not indicate that the court ever asked regarding lessers. The court asked if there were any objections to instructions being given, (RT 436.) The court refused a request for a lesser included instruction to the terrorist threat charge, noting that CALJIC did not note the existence of any lessers. (RT 436, 437.)
