Return to CALJIC Part 14-17 – Contents
F 16.480 n1 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 (39) 306 US 451, 453 [83 LEd 888]; People v. Soto (85) 171 CA3d 1158, 1162-64 [217 CR 795]; see also Kolender v. Lawson (83) 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 (94) 25 CA4th 391 [30 CR2d 422] (see also, People v. McClelland (96) 42 CA4th 144 [49 CR2d 587] [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.]
F 16.480 n2 Stalking: Intent to Carry Out The Threat.
[See FORECITE F 9.16.1 n3.]
F 16.480 n3 Constitutionality Of Stalking Statute (PC 646.9(b)).
[See FORECITE F 9.16.1 n2 and FORECITE BIBLIO 9.16.1, 9.16.2, 16.480.]
F 16.480 n4 Harassment May Be Committed In A Single Course Of Conduct.
(See FORECITE F 9.16.1 n4.)
F 16.480 n5 Stalking: Victim’s Fear Is Alone Insufficient To Constitute Substantial Emotional Distress.
(See FORECITE F 9.16.1 n6.)
F 16.480a
Misdemeanor Stalking: Definition Of “Repeatedly”
(PC 646.9)
*Add to CJ 16.480:
For purposes of this instruction, “repeatedly” means recurring again and again.
Points and Authorities
As set forth in FORECITE F 16.480 n1, the term repeatedly may be unconstitutional unless construed to preclude conviction based on only two or three occasions. (See also FORECITE F 16.480d.) Further support for this argument may be found in People v. Green (91) 227 CA3d 692 [278 CR 140]. In Green the court concluded that the term “pattern of criminal gang activity” (PC 186.22(e)) is not unconstitutionally vague because it is specifically defined by the statute as inter alia the commission of two or more specific offenses. (Green 227 CA3d at 703.) In so doing, the court relied on U.S. v. Campanale (9th Cir. 1975) 518 F2d 352, 364, which addressed a vagueness argument in the context of the RICO statutes, which employ the phrase “pattern of racketeering activity.” The federal court held: “It is true that, if undefined, terms such as ‘pattern of racketeering activity’ would be unmanageable. Any ambiguity is cured by 18 USC 1961, which defines ‘racketeering activity’ with reference to specific offenses, [and] ‘pattern of racketeering activity’ with reference to a definite number of acts of ‘racketeering activity’ within a specified time period.” [Emphasis added.] No such specification of definite number of acts during a specified time period is provided in PC 646.9 to define the term “repeatedly.” Thus, the statute is exposed to a void for vagueness argument.)
At a minimum, the term should be defined as set forth above which is the dictionary definition.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 16.480b
Stalking: Inapplicable To Constitutionally Protected Behavior
*Add to CJ 16.480:
You are not to consider any constitutionally protected activity of the defendant in determining whether the defendant engaged in a “course of conduct” which “harassed” the victim.
Points and Authorities
PC 646.9(a) requires that the defendant “repeatedly follow” or “harass” the victim. PC 646.9(d) defines “harasses,” inter alia as a “course of conduct.” That section also specifically excludes “constitutionally protected activity” from the meaning of “course of conduct”. Accordingly, because the jury must find all necessary elements of the charge (U.S. constitution 6th and 14th Amendments; People v. Figueroa (86) 41 C3d 714, 725 [224 CR 719], the jury must be instructed to determine whether the acts relied upon by the prosecution were “constitutionally protected”.
Obviously the jury will likely have to be instructed upon the applicable constitutional principles (as it is in the 4th Amendment context when the lawfulness of the police conduct is a jury issue (see CJ 9.23 – CJ 9.27).) Presumably most of these principles will relate to the 1st Amendment, but it might also be appropriate to instruct based on the 10th Amendment, that all rights not specifically prohibited by the states are reserved to the people.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
[See FORECITE F 9.16.1b re: Felony Stalking.]
F 16.480c
Stalking: Omission of “Substantial Emotional Harm Element
(PC 646.9)
*Modify 2nd sentence of 2nd ¶ of element 5 of CJ 16.480 to provide as follows [added language is capitalized]:
The 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.
Points and Authorities
[See FORECITE F 9.16.1a.]
F 16.480d
Stalking: Specification, Definition and Unanimity
As To Predicate Acts
(PC 646.9)
*Add to CJ 16.480:
[1. The defendant willfully, maliciously, and repeatedly, on at least [two] [three] separate occasions, followed another person.];
To find this element, all tweleve jurors must unanimously agree upon which [two] [three] separate acts the defendant committed.
OR
[1. The defendant willfully and maliciously, committed a series of at least three separate acts which harassed another person.]
To find this element, all tweleve jurors must unanimously agree upon which [two] [three] separate acts the defendant committed.
Points and Authorities
1. “Repeatedly Following” and “Harassing” as Separate Means of Violating the Statute
PC 646.9 imposes criminal liability for “repeatedly following” or “harassing.” The term “harasses” is expressly defined in the statute to include conduct which does not necessarily involve repeatedly following. Hence, the jury should be instructed in such a way as to differentiate between the two different means of violating the statute.
As to whether the jury must unanimously agree regarding the means of violating the statute, see generally FORECITE F 17.01 et seq., 17.01 n9, and F 17.01 n13.
2. Specification of the Number of Acts Required
A statute which imposes criminal liability for a “pattern,” “series” or “course of conduct” may implicate 14th Amendment Due Process and vagueness principles unless construed to require a specific minimum number of acts. (See Lanzetta v. New Jersey (39) 306 US 451, 453 [83 LEd 888; 59 SCt 618]; People v. Soto (85) 171 CA3d 1158, 1162-64 [217 CR 795]; see also Kolender v. Lawson (83) 461 US 352, 357-60 [75 LEd2d 903; 103 SCt 1855].) The due process requirement of definiteness is violated by a criminal statute that fails to provide adequate notice to a person of ordinary intelligence that his or her contemplated conduct is unlawful. (U.S. v. Valenzuela (1979) 596 F2d 1361, 1367.) For example, in People v. Green (91) 227 CA3d 692 [278 CR 140] the court concluded that the term “pattern of criminal gang activity” (PC 186.22(e)) is not unconstitutionally vague because it is specifically defined by the statute as inter alia the commission of two or more specific offenses. (Green, 227 CA3d at 703.) In so doing, the court relied on U.S. v. Campanale (9th Cir. 1975) 518 F2d 352, 364, which addressed a vagueness argument in the context of the RICO statutes, which employ the phrase “pattern of racketeering activity.” The federal court held: “It is true that, if undefined, terms such as ‘pattern of racketeering activity’ would be unmanageable. Any ambiguity is cured by 18 USC 1961, which defines ‘racketeering activity’ with reference to specific offenses, [and] ‘pattern of racketeering activity’ with reference to a definite number of acts of ‘racketeering activity’ within a specified time period.” [Emphasis added.] (Ibid.)
Similarly, the Ninth Circuit has consistently held that the phrase “continuing series of violations” for purposes of the “continuing criminal enterprise” statute requires three or more separate acts. (Valenzuela, 596 F2d at 1367.)
Hence, both the terms “repeatedly follows” and “harasses” (which is defined by the statute as pattern or course of conduct composed of a “series of acts”) should be defined to require a minimum number of separate acts.
3. How Many Acts are Required?
A. Repeatedly
In People v. Heilman (94) 25 CA4th 391 [30 CR2d 422] (see also, People v. McClelland (96) 42 CA4th 144 [49 CR2d 587] [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.
Heilman stated that the dictionary definition of “repeatedly” is “said, done or presented again.” (25 CA4th at 400 fn 5.) However, this is actually the second definition, which is obviously intended to apply to the use of the term “repeated” as in repeating a specific act.(e.g,: “he ‘repeated’ second grade.”) This is not the common meaning associated with the term “repeatedly” which means”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” requires that only one or more acts of following is required. Hence, to comport with the common meaning of the statutory language, and to equate this means of violating the statute with the other means, which requires of “series” of acts (see below), the term repeatedly should be interpreted to require three or more separate acts of following.
B. “Harasses”
“Harasses” is defined by PC 646.9(e), inter alia, as a course of conduct composed of a “series of acts over a period of time.” Both common usage and the dictionary definition of “series” reflect that normally three or more events are required to compose a series. (Valenzuela, 596 F2d at 1377.) Accordingly, because any doubt in interpreting a criminal statute must be resolved in favor of the defendant (People v. Craft (86) 41 C3d 554, 560 [224 CR 626]), PC 646.6 should be interpreted to require three or more separate acts of harassment.
4. Unanimity as to the predicate Acts
The jury should be required to unanimously agree on which specific acts the criminal liability is predicated. While it has been held in California that juror unanimity is not required as to different theories of guilt (see People v. Davis (92) 8 CA4th 28, 35 [10 CR2d 381]), the predicate acts upon criminal liability is founded are not mere theories of guilt. “[S]ubstantial agreement on a discrete set of actions is essential to ensure that the defendant is guilty beyond the reasonable doubt of some specific illegal conduct [Citation]].” (U.S. v. Edmonds (3rd Cir. 1996) 80 F3d 810, 819.) Hence, when there is a real risk that the jury will convict without agreement on a discrete set of actions, courts have acquired specific unanimity instructions. (See e.g. People v. Madden (81) 116 CA3d 212, 214-220 [171 CR 897] [reversing sex assault conviction because instructions allowed jury to convict without agreement as to a particular assault]; People v. Deletto (83) 147 CA3d 458, 472 [195 CR 233] [jury must agree that defendant committed the same act or acts]; People v. McNeill (80) 112 CA3d 330, 335 [169 CR 313] [where defendant is charged in a single count with several offenses and the evidence tends to show that he committed more than one such offense, the jury must agree upon the particular act committed in order to convict]; People v. McRae (67) 256 CA2d 95, 120-21 [63 CR 854] [jury must be instructed to unanimously agree upon at least one false statement as predicate to perjury conviction].)
Moreover, the failure to require unanimity as to the predicate acts to criminal liability may implicate the Due Process Clause of the U.S. Constitution. (See Eric S. Miller, Compound/Complex Criminal Statutes And The Constitution: Demanding Unanimity As To Predicate Acts, 104 Yale L.J. 2277 (1995); see also U.S. v. Edmonds (3rd Cir. 1996) 88 F3d 810, 819-20.) (See also FORECITE F 17.01 n15).
5. Unanimity as to the Means of Violating the Statute
(See generally FORECITE F 17.01 et seq and F 17.01 n9 and F 17.01 n13.)
6. Conclusion
The proposed modifications of the CJ stalking instruction are required by the federal constitutional principles discussed above. Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
Moreover, any ambiguity in the statute must be interpreted in favor of the defendant. (United States v. Bass (71) 404 US 336, 348 [30 LEd2d 488; 92 SCt 515].)
