Stalking Instruction Upheld But Has Possible Problem
September 4th, 2015

The language of CC 1301 was upheld against several challenges in People v. Ibarra (2007) 156 Cal. App. 4th 1174, 1195-1197. In Ibarra, the Court of Appeal also rejected a request for a unanimity instruction noting that stalking always involves a continuous course of conduct over a period of time. (Id. at 1198.)

The Court of Appeal in People v. McPheeters (2013) 218 Cal. App. 4th 124, 131-141, refused to reverse a conviction based on several challenges to CC 1301. But, the appellate court indicated that there are possible problems with the instruction regarding knowledge that a person is victim’s immediate family member, and defendant’s intent that his comments to a third party be conveyed to the victim. (Ibid.)

McPheeters, 218 Cal. App. 4th at 134, described the defense position as follows:

“Defendant’s position is that the challenged instruction was not correct in law because the statute must be interpreted to require knowledge that a person is the victim’s immediate family member within the meaning of the [Penal Code] section 649.9. subdivision (1), before any statements or conduct towards that person can qualify as a credible threat to the victim. According to defendant, statements made to a person other than the victim constitute a credible threat within the meaning of [Penal Code] section 649.9, subdivision (g), only if the defendant knows that the person is an immediate family member of the victim. Absent such knowledge, defendant argues, an accused could not harbor the specific intent to place the victim in reasonable fear for the safety of that family member. Defendant contends this violates [Penal Code] section 20, which requires that “‘[i]n every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.’ (§ 20.) ” (McPheeters, 218 Cal. App. 4th at 134.)

However, the court did not resolve this contention.

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