SERIES 1300 CRIMINAL THREATS
A. THREATENING, STALKING, OR TERRORIZING
F 1301 NOTES
TABLE OF CONTENTS
F 1301 Note 1 Stalking: CALCRIM Cross-References And Research Notes
F 1301 Note 2 Stalking: Intent To Carry Out The Threat
F 1301 Note 3 Harassment May Be Committed In A Single Course Of Conduct
F 1301 Note 4 Stalking: Victim Must Be Subjectively Aware Of Stalker’s Conduct But Fear Need Not Be Contemporaneous
F 1301 Note 5 Stalking Following Court Order: No Double Jeopardy Based On Prior Contempt Conviction
F 1301 Note 6 Stalking In Violation Of Court Order: Stipulation To Violation Of Court Order
F 1301 Note 7 Misdemeanor Stalking: Constitutional Challenge (PC 646.9)
F 1301 Note 8 Stalking: Victim’s Fear Is Alone Insufficient To Constitute Substantial Emotional Distress
F 1301 Note 9 Constitutionality Of Stalking Statute (PC 646.9(a))
Return to Series 1300 Table of Contents.
F 1301 Note 1 Stalking: CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1301 Stalking
Research Notes:
See CLARAWEB Forum, Series 1300 Criminal Threats and Hate Crimes.
F 1301 Note 2 Stalking: Intent To Carry Out The Threat
ALERT: Effective 1/1/96, the legislature amended PC 646.9 (formerly PC 646.9(e)) to provide that it is not necessary for the defendant to intend to actually carry out the threat in order for the threat to be a “credible threat.” However, ex post facto and/or due process principles may preclude retroactive application of this change. (See generally, FORECITE F 2.90 n5.)
People v. Carron (1995) 37 CA4th 1230, 1242-43, held that PC 646.9 does not require that the defendant intend to carry out the threat. However, the dissent in Carron, persuasively points out that the express language of PC 646.9, which defines a “credible threat,” states that the threat must be made “with the intent … to carry out the threat….”
CALJIC NOTE: See FORECITE F 9.16.1 n3.
F 1301 Note 3 Harassment May Be Committed In A Single Course Of Conduct
PC 646.9(a) applies to “any person who willfully, maliciously, and repeatedly follows or harasses another person…” [Emphasis added.] People v. McCray (1997) 58 CA4th 159, 169, 170, concluded that “repeatedly” modifies “following” and not “harassment.” Thus, harassment need not be repeated and may be committed in a single course of conduct. In so concluding, the court agreed with the result in People v. Heilman (1994) 25 CA4th 391 930, but disagreed with its reasoning.
CALJIC NOTE: See FORECITE F 9.16.1 n4.
F 1301 Note 4 Stalking: Victim Must Be Subjectively Aware Of Stalker’s Conduct But Fear Need Not Be Contemporaneous
See People v. Norman (1999) 75 CA4th 1234.
CALJIC NOTE: See FORECITE F 9.16.1 n5.
F 1301 Note 5 Stalking Following Court Order: No Double Jeopardy Based On Prior Contempt Conviction
People v. Kelley (1997) 52 CA4th 568, 576, held that PC 646.9(b) does not define the crime of stalking in violation of a restraining order. The section merely defines stalking. The provisions relating to the violation of a restraining order do not define a crime. They merely create a punishment enhancement. As such, they are not to be considered in the double jeopardy analysis. Accordingly, even if the defendant has previously been convicted of contempt based on his or her violation of a court order, a subsequent conviction for stalking in violation of that same court order is not prohibited by double jeopardy.
CALJIC NOTE: See FORECITE F 9.16.2 n4.
F 1301 Note 6 Stalking In Violation Of Court Order: Stipulation To Violation Of Court Order
People v. Kelley (1997) 52 CA4th 568, held that the violation of a court order provision in PC 646.9(b) is not an element of the crime but merely creates a punishment enhancement. (See FORECITE F 9.16.2 n4.) Accordingly, under the rationale of People v. Bouzas (1991) 53 C3d 467, 480, the defendant may stipulate to the violation of the court order so as to avoid jury consideration of that evidence. Alternatively, under the rationale of People v. Weathington (1991) 231 CA3d 69, 90, the court order violation could be bifurcated for consideration separately from the stalking violation itself. (See e.g. FORECITE F 12.65 n2; F 10.38 n1; F 14.40 n1.)
CALJIC NOTE: See FORECITE F 9.16.2 n5.
F 1301 Note 7 Misdemeanor Stalking: Constitutional Challenge (PC 646.9)
The crime of stalking is defined in PC 646.9(a) as follows:
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 of death or great bodily injury is guilty of the crime of stalking….
This language raises a number of concerns.
First, the use of the term “maliciously” would normally trigger an instruction upon the definition of maliciously per CJ 1.22. However, that instruction defines malice, inter alia, as “an intent to do a wrongful act.” The intent necessary to establish the crime of stalking, however, is not just to do a wrongful act, but to “place the person in reasonable fear of death or great bodily injury.” Accordingly, if CJ 1.22 is used, it should be made clear to the jury that the statutorily required specific intent must be found in addition to any intent or mental state incorporated in the definition of malice. Moreover, the statutory definition of “maliciously” (PC 7) includes “a wish to injure.” Logically, this “wish” is the mental state which the Legislature intended to incorporate into the statute.
Second, the statute’s use of the term “repeatedly” creates a vague and uncertain element which may implicate 14th Amendment due process/notice principles. (See Lanzetta v. New Jersey (1939) 306 US 451, 453 [83 LEd 888]; People v. Soto (1985) 171 CA3d 1158, 1162-64; see also Kolender v. Lawson (1983) 461 US 352, 357-60 [75 LEd2d 903].) That is, there is no indication as to how many occasions are necessary to meet the “repeatedly” requirement. Some jurors might find two or three occasions to be sufficient while other jurors might require a greater number. As a result, there is a danger that the statute will be arbitrarily enforced and that the defendant will not be afforded adequate notice of the proscribed conduct.
In People v. Heilman (1994) 25 CA4th 391 (see also, People v. McClelland (1996) 42 CA4th 144 [stalking statute not unconstitutionally vague]), the Court of Appeal concluded that the term repeatedly is not unconstitutionally vague because it means “more than once.” (Heilman, 25 CA4th at 400-01.) This conclusion is erroneous.
The fact that several other states have enacted statutes which specifically require more than one occasion, does not establish that as a matter of common sense the term repeatedly—if not defined, as in California—means more than once.
Contrary to Heilman, the common definition is not free from ambiguity. Heilman states that the dictionary definition is “said, done or presented again.” (25 CA4th at 400 fn 5.) In point of fact, this is the second definition; the first definition is “renewed or recurring again and again; constant, frequent.” (Webster’s Third New Int’l. Dict. (1981), p. 1924.) Accordingly, Heilman erroneously concluded the common meaning of the term “repeatedly” is sufficiently specific. Therefore, the legal conclusions founded upon this faulty assumption are also erroneous.
See also FORECITE F 9.16.1 n2.
[An article discussing anti-stalking statutes and various issues relating to their constitutionality appears in the Criminal Law Bulletin, May-June 1994, pp. 203-241.]
CALJIC NOTE: See FORECITE F 16.480 n1.
F 1301 Note 8 Stalking: Victim’s Fear Is Alone Insufficient To Constitute Substantial Emotional Distress
See People v. Ewing (1999) 76 CA4th 199, 211-12 [evidence not sufficient for “substantial emotional distress” where victim feared the defendant and was afraid for her own safety and that of her children and where she suffered sleepless nights and joined a support group for battered women; the fact that the defendant’s conduct “upset” the victim falls short of proving “substantial emotional distress”].
CALJIC NOTE: See FORECITE F 9.16 n6.
F 1301 Note 9 Constitutionality Of Stalking Statute (PC 646.9(a))
An article discussing anti-stalking statutes and various issues relating to their constitutionality appears in the Criminal Law Bulletin, May-June 1994, pp. 203-241.
The Kansas anti-stalking statute was held to be void for vagueness in State v. Bryan (1996) 910 P2d 212 [259 Kan. 143]. The court faulted the statute for containing no guidelines to determine when “following” a person becomes “alarming, annoying or harassing.” Under the statute, the court said “[t]he crime depends upon the sensitivity of the complainant.” The court relied in part upon Coates v. Cincinnati (1971) 402 US 611 [29 LEd2d 214; 91 SCt 1686], which held that a disorderly conduct statute forbidding persons from conducting themselves in a manner “annoying” to a passerby was impermissibly vague.
In California, PC 646.9 defines the term “harasses” inter alia in terms of conduct that “annoys” another person.
People v. Tran (1996) 47 CA4th 253, 259-60, held that PC 646.9 is not unconstitutionally vague. In the UNPUBLISHED portion of People v. Sotomayor (1996) 47 CA4th 382, the court held that the term “annoys” as used in PC 646.9 is not unconstitutionally vague. [See FORECITE BIBLIO 9.16.1, 9.16.2, F 16.480.]
People v. Halgren (1997) 52 CA4th 1223, held that the stalking statute (PC 646.9) is not unconstitutionally vague or overbroad. The term “credible threat,” as used in the statute, is not unconstitutionally vague according to the Halgren court. Additionally, People v. Falck (1997) 52 CA4th 287, held that the use of the term “safety” in PC 646.9 is not vague and the statute is not overbroad in failing to require an actual intention to immediately carry out the threat. (See also People v. Borelli (2000) 77 CA4th 703 [term “safety” is widely and commonly used and is not vague or overbroad, nor is it limited only to physical safety].)
Does Statute Violate The First Amendment? People v. Borelli (2000) 77 CA4th 703, held that the stalking statute (PC 646.9) does not violate First Amendment guarantees in that it does not regulate the content of speech as much as the manner in which the communication is made.
RESEARCH NOTES: See Annotation, Validity, construction, and application of stalking statues, 29 ALR5th 487 and Later Case Service.
CALJIC NOTE: See FORECITE F 9.16.1 n2.
