Return to CALJIC Part 9-12 – Contents
F 9.16.1 n1 Stalking (PC 646.9(b)).
1. Definition Expanded.
Effective 1/1/94, the definition of stalking per PC 646.9 was expanded to require that a person act with intent to place another person in reasonable fear for his or her safety or that of his or her immediate family. The term “immediate family” was defined by the amendment and the term “credible threat” was redefined.
F 9.16.1 n2 Constitutionality Of Stalking Statute (PC 646.9(a)).
See FORECITE F 16.480 n1. [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 (96) 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 (71) 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 (96) 47 CA4th 253, 259-60 [54 CR2d 650], held that PC 646.9 is not unconstitutionally vague. In the UNPUBLISHED portion of People v. Sotomayor (96) 47 CA4th 382 [54 CR2d 871] 96 DAR 8453 at 8456, 96 CDOS 5254, the court held that the term “annoys” as used in PC 646.9 is not unconstitutionally vague. [A copy of the unpublished portion of this opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-210.] [See FORECITE BIBLIO F 9.16.1, F 9.16.2, F 16.480.]
People v. Halgren (97) 52 CA4th 1223 [61 CR2d 176] 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 (97) 52 CA4th 287 [60 CR2d 624] 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 [91 CR2d 851] [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 [91 CR2d 851] 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.
F 9.16.1 n3 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 (95) 37 CA4th 1230, 1242-43 [44 CR2d 328], 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 ….”
F 9.16.1 n4 Harassment May Be Committed In A Single Course Of Conduct.
SUBSEQUENT HISTORY: In the July 1998 Pocket Part, the CALJIC Committee modified CJ 9.16.1, Element 1, to comport with FORECITE’s analysis based on People v. McCray (97) 58 CA4th 159 [67 CR2d 872]. (See CALJIC History CJ 9.16.1.)
PC 646.9(a) applies to “any person who willfully, maliciously, and repeatedly follows or harasses another person …” [Emphasis added.] People v. McCray (97) 58 CA4th 159, 169, 170 [67 CR2d 872] 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 (94) 25 CA4th 391 930 [30 CR2d 422] but disagreed with its reasoning.
F 9.16.1 n5 Stalking: Victim Must Be Subjectively Aware Of Stalker’s Conduct But Fear Need Not Be Contemporaneous.
See People v. Norman (99) 75 CA4th 1234 [89 CR2d 806].
F 9.16.1 n6 Stalking: Victim’s Fear Is Alone Insufficient To Constitute Substantial Emotional Distress.
(See People v. Ewing (99) 76 CA4th 199, 211-12 [90 CR2d 177] [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 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”].)
F 9.16.1a
Stalking: Omission of “Substantial” Emotional Harm Element
(PC 646.9)
NOTE: Adoption of FORECITE Instruction By CALJIC.
In its original version of the instruction for PC 646.9 CJ failed to include the requirement of substantial emotional distress.
FORECITE proposed a modified instruction on this issue as follows:
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.
In the July, 1995 Pocket Part, CALJIC corrected its stalking instruction to comport with the FORECITE instruction and the statute, as it appears in the 6th Edition. (See CJ 9.16.1.)
F 9.16.1b
Stalking: Inapplicable To Constitutionally Protected Behavior
(PC 646.9(a))
*Add to definition of “harasses” in CJ 9.16.1:
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 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”.
Accordingly the jury should 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 16.480b re: Misdemeanor Stalking.]
F 9.16.1c
Stalking: Definition Of “Immediate Family”
*Add to CJ 9.16.1 the following:
For the purposes of this instruction, “immediately family” means any spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.
Points and Authorities
This is the statutory definition of “immediate family” which is not included in the CALJIC instruction.
F 9.16.1d
Stalking: Specification, Definition and Unanimity As To Predicate Acts
(PC 646.9)
*Add to CJ 9.16.1:
[1. The defendant willfully, maliciously, and repeatedly, on at least [two] [three] separate occasions, followed another person.];
To find this element, all twelve 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 twelve 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 n 13.)
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].)