Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF105178A
CANTIL-SAKAUYE, J.
A jury convicted defendant Keith Dovichi of stalking. (Pen. Code, § 646.9, subd. (a).) Imposition of sentence was suspended and defendant was placed on probation for five years, ordered to serve six months county jail, stayed upon the condition that he serve 200 hours of community service, to be completed within one year. He was awarded one day of custody credit and no days of conduct credit.
Hereafter, undesignated statutory references are to the Penal Code.
Defendant’s single day of presentence custody credit does not entitle him to any conduct credit. This case does not raise the issue of whether the recent amendment of section 4019 applies retroactively to this case.
On appeal, defendant contends (1) the evidence is not sufficient to support the verdict, (2) the trial court’s modification of CALCRIM No. 1301 contained an inaccurate and prejudicial statement of the law, (3) the court’s preinstruction that a witness’s prior felony conviction could be used in evaluating credibility was prejudicial because trial evidence showed that defendant’s only felony conviction had been expunged, and (4) his conviction violated his constitutional right against double jeopardy. We affirm the judgment.
FACTS
Prosecution Case-in-Chief
S.L. dated defendant from 2000 through 2005. For a while thereafter, they remained friends. In February 2007, she worked at a restaurant in Stockton. On Valentine’s Day, he sent her a large box containing flowers, a necklace, and a teddy bear. She deduced that he wanted to renew their romantic relationship, which she had no intention of doing. As a result, she informed him that they should break off all contact, because there was no chance of their reuniting and she did not wish to retain his friendship.
February 2007
Approximately a week after Valentine’s Day, defendant began sending S.L. letters and telephoning her repeatedly at home, at work, and on her cell phone. He would leave lengthy messages on her cell phone and, after hanging up, he would call again and leave more messages. On her home phone, he would say things such as, “I know you’re there, pick up the phone.” He left her five or six messages per day. She had to change her cell phone number as a result of the barrage of calls she received from him.
Because S.L. would not talk to defendant by telephone, he mailed letters to her house and hand-delivered them to her car and her workplace. In some letters, he told her that he wanted to retain her friendship. In others, he expressed his desire to resume their romantic relationship.
In one letter, defendant invited S.L. to dinner and asked to retain her friendship. In response, she telephoned him and declined both requests, expecting that the conversation would end all contact with him. Instead, his calls and letters continued to escalate.
In another letter, defendant wrote to S.L., “I can’t let you go. I just can’t. I wish I could.” This letter did not scare her, but it made her sad because it showed that he was still fixated upon her. Other letters were mailed to her house and were hand-delivered to her door, her car windshield, and her workplace. She tried to ignore him, but, when he started threatening her at work and telephoning her employer, she telephoned him and informed him, “There’s no chance. We are over. You need to move on.”
March 2007
In March 2007, defendant telephoned S.L. repeatedly at work, three to four times per day; and on her home and cell phones, 8 to 10 times per day. Unlike the home and cell phones, the work phone needed to be answered, so she could not avoid his calls. She would tell him to “[p]lease stop this, ” and she would hang up as soon as she recognized his voice. She also directed the 16 employees she supervised at the restaurant to have no contact with defendant when he telephoned.
April 2007
One day in April 2007, defendant posted 15 to 20 letters and posters for S.L. at her workplace and at neighboring businesses. The posters irritated her and made her worried because he had resorted to such extreme behavior. After listening to a message from defendant on her cell phone, S.L. realized that he had left the posters in retaliation for her having failed to return his call. She called the police and reported his behavior.
On April 12, 2007, defendant sent S.L. a letter in which he apologized for having posted the “flyers” and admitted that he had been out of line. He explained, “When all you do is hang up when you hear my voice. Well, I was crazy for a while and I couldn’t control it.” In the same letter, he said that he would visit on their upcoming anniversary. S.L. did not respond to this letter, and defendant continued to send her letters.
At one point, S.L. telephoned defendant after he had threatened to call her boss. During the call, she yelled at him to leave her alone, and eventually she hung up on him.
On April 24, defendant sent S.L. a letter expressing his anger at her having hung up on him. He wrote, in part, “I don’t bluff. When I say I will do something I Do it.... So I suggest you cool your ass down quit being so self centered and be very carefull [sic] what you wish for!!!! Because you might just get it. [¶] I can promise you one thing for sure, I do not loose [sic]. And you won’t like the outcome of pissing me off.”
At her house on April 30, 2007, S.L. received flowers from defendant. She threw them away and did not contact him. However, he continued to write her letters and to telephone her.
S.L. became afraid that defendant would hurt her. In one letter, he threatened: “I will do as stated if I don’t hear from you in 24 hours, I will turn the dogs of war loose, and believe me a phone call will be much easier on you. If you think what I have been doing is bad wait till the state FDA, code enforcement, building inspectors, and yes even brad get involved. Yes, I will do whatever it takes to have your job put in jeopardy or close that store down.” Defendant added that this would be only “a start.”
Brad was the owner of the restaurant where S.L. worked.
In an ensuing paragraph, defendant wrote, “BY THE WAY I AM NOT STOCKING [sic] YOU. A STOCKER [sic] IS OUT TO HARM YOU. I would never hurt you but I will harm your livllyhood [sic] and ability to earn that income your [sic] so use [sic] to having.”
May 2007
By May 2007, S.L. was feeling scared for her personal safety. She explained, “Everywhere I turned, he was there. I was afraid to walk to my car. Come to work. I got to check and make sure, you know, it was safe to just get out of my car so I wouldn’t have a confrontation or retaliation. I was just very, very paranoid.”
Although defendant had not specifically threatened to kill or harm S.L., she noted that his letters were “getting worse and worse.” She did not know how far he would go, or what he might do to her coworkers, friends, or family, including her sisters and nephews who resided with her. She became afraid to go to the grocery store or to leave her home’s windows open.
On two occasions, defendant arrived unannounced at her workplace and confronted her in her office. The first time he entered through the back door and found her sitting at her desk. She immediately telephoned the police and began speaking to an operator. When he saw that she was conversing with the operator, he left. Approximately a week later, he entered through the front door and walked to her office at the back of the building. She warned him, “I’m going to call the police, ” and he responded, “I’m not doing anything wrong.” Then he left. Following these incidents, defendant continued to come to the restaurant. He would inform the employees that he was a paying customer and that they had to serve him.
Toward the end of May 2007, defendant confronted S.L. at her home. At approximately 5:30 p.m., she drove home, parked, and got out of her car. He drove up in front of her, and she quickly reentered her car. He stood in front of her car, placed his hands on the car and remarked, “Where do you think you’re going to go? I just want to talk with you.” She backed up her car, drove around him and entered her driveway, believing that she could get into her house before he reached her. He reentered his car and parked behind her car in the driveway, so she could not back up. She locked herself in her car. He walked up to her window and told her, “I just want to talk to you. That’s all we have to do is talk. Roll down the window.” She told him, “You need to leave. You’re scaring me. I’m calling the police.” He said a few “choice words” to her and then left. Even after this confrontation, the letters and telephone calls from defendant did not stop, even though in many letters he would claim, “This is the last one, I swear.”
S.L. finally obtained a restraining order against defendant. She was aware that he had moved closer to her residence and now lived only five or six blocks away. This made her nervous and paranoid, and she believed he was watching her every move.
Defense
On May 18, 2007, Stockton Police Officer Richard Buckley served upon defendant an emergency protective order directing him to stay a certain distance away from S.L., and to have no contact with her. Earlier that same day, Buckley had met with S.L. He could tell from her tone of voice that she was scared of defendant.
Defendant offered three character witnesses who had known him for one, 20, and 28 years. They described him as “mellow, ” “easy going, ” “even keeled, ” “never... angry, ” and “[t]he most normal guy I have known.”
Defendant testified on his own behalf. He denied ever intending to place S.L. in fear for her safety. He acknowledged having been persistent in seeking an explanation for why she had abruptly terminated their friendship.
DISCUSSION
I
Defendant contends his stalking conviction is not supported by sufficient evidence. Specifically, he claims the evidence that he intended to place S.L. in reasonable fear for her safety “is contradictory, constitutionally suspect and totally unreliable.” We are not persuaded.
“On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶] While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the jury. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)
Section 646.9 provides in part: “(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison. [¶] (b) Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years.”
The term “harasses” means “engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.” (§ 646.9, subd. (e).) A “credible threat” means “a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat.” (§ 646.9, subd. (g).)
Before considering the evidence of defendant’s intent to make a credible threat, we briefly consider his argument that there was no evidence of a direct or implied threat. The point has no merit.
Defendant’s letters claimed at various points that he would not act in “any hatefull [sic] hurting ways, ” and that he “would never hurt” S.L. However, these assurances were intermixed with warnings to “be very careful” what she wishes for, that she would not “like the outcome of pissing [him] off, ” that he would get her in trouble at her job, and that he would “turn the dogs of war loose.” The letters made her afraid to walk to or from her car, not knowing whether she would be safe from a confrontation or retaliation. She feared for her safety because defendant’s letters were “getting worse and worse, ” and she did not “know how far he was going to go.” Even if there was no evidence of an express threat to hurt or kill, there was abundant evidence of an implied threat. (People v. Boyer, supra, 38 Cal.4th at pp. 479-480.)
The remaining issue is whether there was substantial evidence that defendant intended to issue such a threat. Although the evidence on this point was conflicting, the jury could reasonably deduce that defendant intended S.L. to understand his comments as threatening her personal safety as well as her continued employment. (People v. Boyer, supra, 38 Cal.4th at pp. 479-480.) Defendant’s writings on the point was facially inconsistent: they threatened to “turn the dogs of war loose” “on” her, but they also claimed that he “would never hurt” her physically and would only harm her livelihood. Because building inspectors, code enforcers, employers, and food and drug authorities are not commonly understood to be “dogs of war, ” and because defendant claimed that he would interact with those entities “only as a start, ” it is reasonable to perceive the defendant’s choice of the term “dogs of war” was a threat of physical violence. Jurors, in turn, could deduce that defendant intended his facially inconsistent writings to be understood in that manner. Moreover, defendant’s intent to issue a threat was combined by his increasingly menacing behavior toward S.L. which included his attempts to confront her at work and his blocking her movements in her own driveway. His stalking conviction is supported by substantial evidence.
II
Defendant contends the trial court’s modification of CALCRIM No. 1301 contained an inaccurate and prejudicial statement of the law. He claims the modification allowed the jury to convict him of stalking so long as S.L. subjectively perceived his behavior to be a threat, even if no reasonable person would have agreed. We conclude any error was not prejudicial.
Background
As noted, section 646.9, subdivision (e) defines the word “harasses” as “engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.” (Italics added.)
The prosecutor requested a Special Jury Instruction No. 1 that provided, “The phrase ‘serves no legitimate purpose’ should not be considered from the view of the Defendant, but should be considered from the view of the alleged victim or that of a reasonable person.” In support of this instruction, the prosecutor provided the court a copy of People v. Tran (1996) 47 Cal.App.4th 253 (Tran) from the Sixth Appellate District.
The trial court granted the request in part, omitting the language regarding “the view of the Defendant.” Defense counsel inquired whether the court had “considered and rejected” the alternative of instructing simply that the phrase “served no legitimate purpose” “should be considered from the view of a reasonable person.” The court responded that it had chosen to follow the language of Tran, rather than substituting the trial court’s own language.
Thus, the modified version of CALCRIM No. 1301, as given by the court, provided in relevant part: “Harassing means engaging in a knowing and willful course of conduct directed at a specific person that seriously annoys, alarms, torments, or terrorizes the person and that serves no legitimate purpose. The phrase serves no legitimate purpose should be considered from the view of the alleged victim or that of a reasonable person.”
In summation, the prosecutor argued: “Legitimate purpose. He doesn’t get to set up his own version of what a legitimate purpose is. That’s not the law. That he wanted answers, that he thought he was entitled to answers, that he thought he was deserving of them doesn’t matter. Legally you’re not entitled to them. Maybe on a relationship basis, people can say, she should have told him something. In law it doesn’t matter. She didn’t have to tell him anything and that’s his problem. He doesn’t get to set up his own definition of what a legitimate purpose is. That’s just the way the law is. [¶] It’s to be considered from the view of the victim or a reasonable person, whether reasonable people--or whether [S.L.] thought what he was doing was legitimate.”
Analysis
Defendant contends the trial court modified CALCRIM No. 1301 at the prosecutor’s request and “over defense counsel’s objection.” The Attorney General counters that defendant forfeited his contention “by failing to object to CALCRIM No. 1301 during the conference on jury instructions.” The Attorney General relies in part on People v. Valdez (2004) 32 Cal.4th 73, which found forfeiture where the defendant had “fail[ed] to either object to the proposed instruction or request that the omitted language be given to the jury.” (Id. at p. 113, italics added.) Here, however, defense counsel expressly inquired whether the court had considered and rejected the “omitted language” (ibid.) that the phrase in question “should be considered from the view of a reasonable person.” This inquiry served the same purpose as a formal “request” for the omitted language and defeats the claim of forfeiture.
The defendant in Tran, supra, 47 Cal.App.4th 253, suggested “that the phrase ‘serves no legitimate purpose’ has no definite meaning and thus allows the jurors to impose their own moral judgment on his actions, which he may have believed had a legitimate purpose, i.e., to convince [the victim] to leave her husband and pursue a romantic relationship with him. However, he lifts the phrase entirely out of context and attempts to focus on his view of his activities rather than the view of the victim or a reasonable person. The statute prohibits following or harassing a person and making a credible threat with intent to place the person in reasonable fear of personal or family safety. Harassing is willful conduct that seriously alarms, annoys, torments or terrorizes the person and reasonably causes substantial emotional distress. Defendant cannot genuinely question that his acts of threatening [the victim] with a knife or hammer and chasing her husband and baby while wielding a long knife are prohibited, even if he somehow hopes the acts will persuade [the victim] to leave her husband.” (Id. at p. 260, italics added.)
The facts of Tran did not tender the issue whether a reasonable person might have viewed the defendant’s behavior as having some legitimate purpose even though his victim subjectively did not do so. Tran nowhere suggests that jurors have the option of viewing the “legitimate purpose” issue from either the perspective of a reasonable person, or that of the victim, regardless of whether her perspective is reasonable. To the extent the trial court’s modification of CALJIC No. 1301 allowed the jury to indulge this false dichotomy, it was error.
This error could have been prejudicial only if a reasonable person, unlike victim S.L., could have viewed defendant’s behavior as serving some legitimate purpose. His appellate briefing identifies no such purpose, and none appears from the evidence. On this record, the instructional error could not have contributed to the verdict and was harmless by any standard. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)
III
Defendant contends the trial court erred reversibly by preinstructing the jury that a witness’s prior felony conviction could be used in evaluating the witness’s credibility. (CALCRIM No. 105.) He claims this preinstruction, which was omitted from the oral and written instructions at the close of evidence, was prejudicial because his testimony acknowledging his prior felony conviction and his explanation that it had been expunged--which meant that it was dismissed and off his record--was not sufficient to “unring” the “bell” of the preinstruction. We are not convinced.
The instruction stated in relevant part: “In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of the testimony. [¶] Among the factors that you may consider are: [¶]... [¶] Has the witness been convicted of a felony?”
Defendant’s prior conviction was introduced only through his own testimony. He explained that it had been his plan to get the conviction expunged so he could obtain a better job and be able to support S.L.
“‘“‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’” [Citations.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 963-964.)
Defendant’s claim that “nothing was done to unring” the bell is based on the particular preinstruction and overlooks the entire charge of the court. At the close of evidence, the jury was instructed with CALCRIM No. 200, “Duties of Judge and Jury, ” which told the jury in relevant part: “Some of these instruction [sic] may not apply depending on your findings about the facts of the case. [¶] Do not assume that just because I gave a particular instruction that I am suggesting anything about the facts. [¶] After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” The jury also received a modified version of CALCRIM No. 105 that did not refer to prior felony convictions.
We assume that jurors are intelligent persons who are capable of understanding and correlating all jury instructions that are given. (People v. Yovanov (1999) 69 Cal.App.4th 392, 407; People v. Mills (1991) 1 Cal.App.4th 898, 918; People v. Kegler (1987) 197 Cal.App.3d 72, 80.) This includes correlating the unmodified version of CALCRIM No. 105, which was given as a preinstruction at the beginning of the case, with the modified version of that instruction and with CALCRIM No. 200, both of which were given following the close of evidence.
We thus presume the jury was capable of correlating the instruction that it could “consider” whether a witness has “been convicted of a felony” with the instructions that “[s]ome of these instruction [sic] may not apply, ” and that it must “follow the instructions that do apply to the facts as you find them.”
Defendant does not contend the jury somehow failed to find the undisputed fact that his prior felony conviction had been expunged, which meant that it had been dismissed and was off his record. Nor does he claim that any reasonable juror could have thought the preinstruction on “considering” a witness’s prior felony conviction somehow applied to one that was off the record.
We thus presume that the jury found that the preinstruction did “not apply” to defendant’s prior conviction in light of the undisputed fact of its expungement. Defendant’s claim that the jury “was left with an uncorrected view that [it] could discount [his] testimony” disregards settled principles of appellate review of jury instructions and has no merit.
IV
Defendant contends his stalking conviction violates his constitutional right against double jeopardy. Specifically, he claims that since all of his conduct was alleged to have taken place before the civil emergency protective order and restraining order were issued in May 2007, the present prosecution (commenced in July 2007) violated his constitutional rights. The claim has no merit.
Code of Civil Procedure section 527.6 authorizes “[a] person who has suffered harassment” to obtain a temporary restraining order and an injunction prohibiting harassment. (Code Civ. Proc., § 527.6, subd. (a).)
The double jeopardy clause of the Fifth Amendment prohibits a person from being prosecuted twice for the same offense or any included offense. The test is whether each offense contains an element the other does not. (People v. Kelley (1997) 52 Cal.App.4th 568, 576.) Defendant has been prosecuted for one offense once, not twice; the double jeopardy clause does not apply.
Defendant has not cited, and we have not found, any authority for the proposition that a person is placed in jeopardy for purposes of the Double Jeopardy Clause upon the mere issuance of the civil restraining order or injunction, as opposed to a criminal adjudication of its willful disobedience. Defendant argues that the May 2007 proceeding “carried criminal sanctions, ” but he fails to identify any such sanction other than section 273.6 which could apply if defendant violated the terms of the restraining order. There is no contention that defendant has suffered any such criminal sanction under this last provision. His claim of having previously been placed in jeopardy has no merit.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., ROBIE, J.