SERIES 1300 CRIMINAL THREATS
A. THREATENING, STALKING, OR TERRORIZING
F 1301 Stalking (Case Law Discussing This Instruction)
TABLE OF CONTENTS
F 1301.1 Titles And Identification Of Parties
F 1301.1 Inst 1 Stalking—Title
F 1301.1 Inst 2 Identification Of Prosecution And Defendant
F 1301.2 Stalking—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1301.3 Language That Is Argumentative, Confusing, Etc.
F 1301.3 Inst 1 Deletion Of Argumentative Language
F 1301.3 Inst 2 Deletion Of Argumentative Language
F 1301.3 Inst 3 Deletion Of Argumentative Language
F 1301.4 Stalking—Burden Of Proof Issues
F 1301.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1301.5 Stalking—Elements And Definitions
F 1301.5 Inst 1 (a & b) Stalking: Separate Enumeration Of Combined Elements
F 1301.5 Inst 2 Incorporation Of Harassment Elements In Enumerated Elements Of The Charge
F 1301.5 Inst 3 Incorporation Of Credible Threat Elements In Enumerated Elements Of The Charge
F 1301.5 Inst 4 Credible Threats: Causation
F 1301.5 Inst 5 Willfully: Knowledge Requirement
F 1301.5 Inst 6 Stalking: Definition Of “Repeatedly” (PC 646.9)
F 1301.5 Inst 7 Stalking: Whether Conduct Is Constitutionally Protected Should Be A Discrete Element Of The Charge
F 1301.6 Stalking—Defense Theories [Reserved]
F 1301.7 Stalking—Preliminary Fact Issues [Reserved]
F 1301.8 Stalking—Unanimity/Duplicity/Multiplicity
F 1301.8 Inst 1 Stalking: Specification, Definition and Unanimity As To Predicate Acts (PC 646.9)
F 1301.9 Stalking—Lesser-Offense Issues [Reserved]
Return to Series 1300 Table of Contents.
F 1301.1 Titles And Identification Of Parties
F 1301.1 Inst 1 Stalking—Title
See generally, FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1301.1 Inst 2 Identification Of Prosecution And Defendant
See generally, FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1301.2 Stalking—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1301.3 Language That Is Argumentative, Confusing, Etc.
F 1301.3 Inst 1 Deletion Of Argumentative Language
*Delete CC 1301, paragraph 3, which provides:
A credible threat is one that causes the target of the threat to reasonably fear for his or her safety [or for the safety of his or her immediate family] and one that the maker of the threat appears to be able to carry out.
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 1301.3 Inst 2 Deletion Of Argumentative Language
*Delete CC 1301, paragraph 10, which provides:
[The People do not have to prove that a person who makes a threat intends to actually carry it out.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 1301.3 Inst 3 Deletion Of Argumentative Language
*Delete CC 1301, paragraph 11, which provides:
[Someone who makes a threat while in prison or jail may still be guilty of stalking.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 1301.4 Stalking—Burden Of Proof Issues
F 1301.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1301.5 Stalking—Elements And Definitions
F 1301.5 Inst 1 (a & b) Stalking: Separate Enumeration Of Combined Elements
Alternative a: [harassed theory]:
*Modify CC 1300, Element 1, as follows [added language is underlined; deleted language is stricken]::
1. The defendant willfully and maliciously harassed … another person _______________ <name of alleged victim>;
AND
2. The defendant did so willfully;
AND
3. The defendant did so maliciously;
AND
4. [RENUMBER REMAINING ELEMENTS]
Alternative b: [repeatedly followed theory]:
*Modify CC 1300, Element 1, as follows [added language is underlined; deleted language is stricken]:
1. The defendant … willfully, maliciously, and repeatedly followed another person _______________ <name of alleged victim>;
AND
2. The defendant did so willfully;
AND
3. The defendant did so maliciously;
AND
4. The defendant did so repeatedly;
AND
5. [RENUMBER REMAINING ELEMENTS]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Separate Enumeration Of Combined Elements—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 repeated following. Hence, the jury should be instructed in such a way as to differentiate between the two different means of violating the statute.
See FORECITE F 3500.2 Inst 1.
Requiring Prosecution To Elect Theory Of The Case—See FORECITE F 400.2 Inst 1.
Tailoring To Specific Alleged Victim—See FORECITE F 820.2 Inst 1.
Add AND After Every Element—See FORECITE F 400.4 Inst 1.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1301.5 Inst 2 Incorporation Of Harassment Elements In Enumerated Elements Of The Charge
*Add to CC 1301 as enumerated elements which prosecution must prove beyond a reasonable doubt:
1. The defendant committed [two or more of] the following acts:
a. __________________ [Specify acts alleged to constitute course of conduct];
b. __________________
c. __________________
AND
2. The defendant did so willfully;
AND
3. The defendant did so knowingly;
AND
4. The acts were directed at _______________ <name of alleged victim>;
AND
5. The acts seriously annoyed, alarmed, tormented or terrorized _______________ <name of alleged victim>;
AND
6. The acts served no legitimate purpose.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Incorporation Of Definitional Elements In The Enumerated Elements—The elements in the above instruction are taken from the definition of harassing as set fourth in CC 1301, paragraph 5. Because this definition is based on the statutory language, the elements of that definition should be specified as enumerated elements which the prosecution must prove beyond a reasonable doubt. (See generally Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068].)
[See also FORECITE F 417.5 Inst 2; PG II(A) [instruction based on statutory language].]
Tailor To Include Name Of Victim—See FORECITE F 820.2 Inst 1.
Add AND After Every Element—See FORECITE F 400.4 Inst 1.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1301.5 Inst 3 Incorporation Of Credible Threats Elements In Enumerated Elements Of The Charge
*Add to CC 1301 as enumerated elements which the prosecution must prove beyond a reasonable doubt:
3. The threat caused _______________ <name of alleged victim> to reasonably fear for (his/her) safety [or the safety of (his/her) immediate family]:
AND
4. Defendant appeared to be able to carry out the threat.
Points and Authorities
See FORECITE F 1301.5 Inst 2.
F 1301.5 Inst 4 Credible Threats: Causation
*Modify CC 1301 as follows:
[Add definition of causation. See e.g., FORECITE F 1501.5 Inst 2.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Causation Instructions—A credible threat must “cause” the alleged victim to fear for his or her safety or the safety of his or her immediate family. (See CALCRIM 1301, paragraph 3.) Thus, because causation may be a factual issue, clarifying instructions on causation should be given.
[See FORECITE F 1501.5 Inst 2.]
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1301.5 Inst 5 Willfully: Knowledge Requirement
See FORECITE F 820.5 Inst 1.
F 1301.5 Inst 6 Stalking: Definition Of “Repeatedly” (PC 646.9)
*Modify CC 1301, paragraph 5, sentence 2, as follows [added language is underlined; deleted language is stricken]:
A course of conduct means two three or more acts occurring over a period of time, however short, demonstrating a continuous purpose.
*Modify CC 1301, paragraph 9, to provide as follows [added language is underlined; deleted language is stricken]:
[Repeatedly means more than once recurring again and again.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—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 (1939) 306 US 451, 453 [83 LEd 888; 59 SCt 618]; People v. Soto (1985) 171 CA3d 1158, 1162-64; see also Kolender v. Lawson (1983) 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 (1991) 227 CA3d 692, 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, and emloys 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 9th 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.
How Many Acts Are Required?
A. “Repeatedly”
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.
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. [See also FORECITE F 16.480a; F 16.480 n1.]
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 (1986) 41 C3d 554, 560, PC 646.6 should be interpreted to require three or more separate acts of harassment.
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.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 16.480a.
F 1301.5 Inst 7 Stalking: Whether Conduct Is Constitutionally Protected Should Be A Discrete Element Of The Charge
*Modify CC 1301 to add Element 4 which was removed by the Spring 2010 CALCRIM Revisions:
4. The defendant’s conduct was not constitutionally protected conduct.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
CALCRIM Erroneously Deleted Element 4 In The Spring 2010 Revisions – CALCRIM does not cite any authority in support of the decision to remove Element 4 regarding constitutionally protected conduct. The statutory language expressly excludes “constitutionally protected activity” from the ambit of the statute. This should impose an elemental burden on the prosecution to prove beyond a reasonable doubt that the alleged criminal activity was not constitutionally protected. (See generally Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; People V. Figueroa (1986) 41 C3d 714.) Even if the question of constitutionally protected conduct is considered to be a defensive matter, the prosecution should still be obligated to disprove the defense beyond a reasonable doubt. (See FORECITE F 2764.2 Inst 1.)
The CALCRIM report states that the issue should be decided by the judge, not the jury. (Report, p. 5.) However, the fact that the element relates to a constitutional principle does not automatically make it a legal question which the judge decides instead of the jury. (See, e.g., CC 507 [jury decides whether Fourth Amendment issue as to probably cause]; CC 509 [same]; CC 1140-43 [jury decides First Amendment issue of obscenity]; CC 2655 [jury decides Fourth Amendment issue of probable cause to detain]; CC 2670 [probably cause to arrest].) As with these other situations, the question regarding constitutional activity should be a discrete, enumerated element of the crime which the jury must find, under appropriate instruction, before convicting the defendant. (See FORECITE F 3500.2 Inst 1.)
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1301.6 Stalking—Defense Theories [Reserved]
F 1301.7 Stalking—Preliminary Fact Issues [Reserved]
F 1301.8 Stalking—Unanimity/Duplicity/Multiplicity
F 1301.8 Inst 1 Stalking: Specification, Definition and Unanimity As To Predicate Acts (PC 646.9)
*Add to CC Element regarding commission of predicate acts:
To find this element, all twelve jurors must unanimously agree upon which [two] [three] separate acts the defendant committed.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
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 (1992) 8 CA4th 28, 35), 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 (1981) 116 CA3d 212, 214-220 [reversing sex assault conviction because instructions allowed jury to convict without agreement as to a particular assault]; People v. Deletto (1983) 147 CA3d 458, 472 [jury must agree that defendant committed the same act or acts]; People v. McNeill (1980) 112 CA3d 330, 335 [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 (1967) 256 CA2d 95, 120-21 [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.).
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 9.16.1d.
F 1301.9 Stalking—Lesser-Offense Issues [Reserved]