Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF023202 Michele D. Levine, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Gary W. Schons, Assistant Attorneys General, and Collette Cavalier and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Iamthebeast Sssotlohiefmjn appeals from his conviction of planting or cultivating marijuana (Health & Saf. Code, § 11378, count 3), misdemeanor annoyance by means of an electronic communications device (Pen. Code, § 653m, subd. (a), count 4), and misdemeanor criminal threats (Pen. Code, § 422, count 1). Defendant contends: (1) the evidence was insufficient to establish the elements of a violation of Penal Code section 653m, subd. (a), because that statute requires that defendant direct his communication to a particular person, and his conduct was merely a general internet posting; and (2) the trial court had a sua sponte duty to define the term “obscene” as used in Penal Code section 653m because the term has a technical meaning in the context of that statute. We agree with defendant’s first contention and will therefore reverse his conviction of count 4. We therefore need not reach his second contention.
The parties stipulated that defendant legally changed his name in 1988 from Edmond Frank MacGillivray, Jr., to “I Am the Beast Sssotlohiefmjn.” His new surname stands for “Six six six of the Lord of Hosts in Edmond Frank M[a]cGillivray, Jr., now.”
Defendant has also filed a petition for writ of habeas corpus with this appeal, which is disposed of by a separate order.
All further statutory references are to the Penal Code unless otherwise specified.
II. FACTS AND PROCEDURAL BACKGROUND
Defendant was a student at Mt. San Jacinto Community College (the college) in Hemet between 1991 and 1993 and between 2004 and 2007. He had accumulated 62 units and was one unit shy of graduating. He told his counselor at the college, Michael Rose, that he had been diagnosed with paranoid schizophrenia while in the Navy.
On April 28, 2007, defendant sent Rose an e-mail at the college counseling office. Defendant stated his history class had been “gathering up gifts to give a student who is in the U.S. Army along with a card they wish to have the students of the class sign to wish him luck in his being deployed to Iraq to fight Al Qaeda and Iraq insurgents....” Defendant stated he was upset because “[i]t is not known to but a very few, that I am the actual[] leader of Al Qaeda and others the USA labels as terrorists.” Defendant stated he needed to “slay” Americans and “other people in this world” through his divinity, the God he served, as a means of keeping himself from being tormented with his own desire to “kill them with [his] own flesh.” He stated that his prayers had resulted in the deaths of several people, including students at Virginia Tech University. He concluded with a request that he be allowed to “set up a recruitment station on campus to recruit assassins for the job of killing Bush and fighting the evil american government.”
Rose did not feel threatened by the e-mail, but rather considered it one of defendant’s typical schizophrenic rants. However, following college protocol, he forwarded the e-mail to Roger Schultz, the college’s vice president of student services. The next day, defendant sent Rose another e-mail to apologize and explain that the previous e-mail had been sent accidentally when his computer was hacked.
Schultz applied for a temporary restraining order on behalf of the college against defendant. However, the trial court denied the request. The college then conducted a disciplinary hearing. The hearing officer, Dr. Kraft, recommended that defendant be expelled, and the college expelled defendant. Defendant never returned to the campus.
On October 5, 2007, Corporal Mark Medina of the college police department received a telephone call from a woman in Florida directing him to the ABC News Web site. Medina went to the site and found a news story concerning Duke University lacrosse players who had been falsely accused of rape. Several people had posted responses. A person who signed himself as “666BEAST666” had written, “Good. I know my school, Mt. San Jacinto College in CA has violated my rights with police and others to the point I am considering a killing spree to make my case known, I figure if I off a bunch of preschoolers I may be heard and others might be spared this torment these people cause.” The college had preschool facilities at its Hemet and Menifee campuses.
Corporal Medina contacted the college district’s Chief of Police, Kevin Segawa. Chief Segawa contacted ABC News and learned that it was defendant who had posted the comment on the station’s Web site. The college police department locked down and established protective perimeters around the preschool facilities. In addition, the site supervisor at the Menifee preschool facility locked the doors, drew the shades, and telephoned the parents of all the children to offer them the option of picking up their children early. Fifteen to 20 parents did so. One of those parents, Sheila N., arranged to have her four-year-old child picked up immediately. She first learned of the circumstances prompting the lockdown from a newspaper article the following day.
Chief Sagawa contacted Schultz, who was then out of state. Schultz became anxious and feared he would be a target. He also arranged to have the college police provide an escort for Dr. Kraft, who had chaired the expulsion hearing.
Chief Segawa contacted defendant, who admitted posting the comment. Defendant said he thought all the time about killing children for the shock value because children were part of the evil society that persecuted him. He further stated it was not against the laws just to think about killing someone.
Chief Segawa arrested defendant. In a search of defendant’s house pursuant to a search warrant, Chief Segawa discovered marijuana plants and unsprouted seeds along with smoking paraphernalia. Chief Segawa also found hundreds of scraps of paper containing handwritten notes, mostly containing nonsensical ranting. Some notes referred to explosives and chemicals, but Chief Segawa found no evidence of either in defendant’s house. One of the notes stated, “I am such to rise up and call forth the public to bomb you, yes. The school for childcare with them there is next to the police station that will be targeted by the Al-Qaeda I summon on Web. The administration building and such could also be a target.”
Chief Segawa seized defendant’s computer, and a forensic investigator examined it. The investigator found references to Web pages concerning the manufacture of explosives. The computer also revealed October 5, 2007, access to the ABC News story about the Duke University lacrosse students’ lawsuit against the district attorney who had prosecuted them.
Defendant testified in his own behalf. He stated he suffers from bipolar schizoaffective disease, and he received services through the Disabled Students Program Services at the college. He stated his therapist had told him to write down his bad thoughts.
Defendant testified he had sent the April, 28, 2007, e-mail to Rose by mistake after becoming upset about an incident in his history class. The professor had been lecturing on Sherman’s march to the sea and the atrocities of war, and a student had commented that the United States should be doing that in Iraq. The student was a soldier, who would soon be returning to Iraq, and the class signed a card to him, but defendant did not want to sign the card.
Defendant testified he had become depressed after being expelled from college so close to graduating. He testified he had begun smoking marijuana to combat his depression at the oral recommendation of his doctor at the Veterans Administration, and he had had five pots of young marijuana plants at his home.
Defendant testified that a person had commented in response to the ABC News story that the lacrosse students should not be allowed to sue the university. Defendant posted his comment to the Web site because he disagreed, and he was simply trying to provoke a discussion at the Web site and to vent his feelings. He did not intend his message to be conveyed to anyone at the college or to cause any fear.
Following trial, the jury found defendant guilty of counts 3 and 4, and acquitted him of count 2 (interfering with a school official’s duties by means of a threat (§ 71). The jury could not reach a verdict on count 1, and the trial court declared a mistrial as to that count. Later, defendant pleaded guilty to count 1 as a misdemeanor. The trial court suspended imposition of sentence for five years and placed defendant on felony probation on count 3 on the condition he serve one year in county jail. The trial court imposed concurrent one-year terms on counts 1 and 4.
III. DISCUSSION
Sufficiency of the Evidence
Defendant contends the evidence was insufficient to support his conviction of a violation of section 653m, subdivision (a) in count 4. Defendant contends that a violation of that statute required that defendant direct his communication to a particular person, and his conduct was merely a general internet posting. The People argue that by posting an obscene comment on the ABC News Web site for others to read, defendant contacted another and violated section 653m, subdivision (a).
A. Standard of Review
“‘When reviewing a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] ‘[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.’ [Citation.]” (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290, fn. omitted.) However, the construction of a statute is purely a question of law and is therefore subject to de novo review on appeal. (People v. Mgebrov (2008) 166 Cal.App.4th 579, 587.)
B. Analysis
Section 653m, subdivision (a) provides, “Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.” A computer is an electronic communication device within the meaning of the statute. (§ 653m, subd. (g).) In addition, the statute adopts the federal definition of “electronic communication.” (§ 653m, subd. (g).) Under the federal definition, an “electronic communication” is defined in general as “any transfer of signs, signals, writings, images, sounds, data, or intelligence or any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system....” (18 U.S.C. § 2510.)
The trial court instructed the jury with the prosecutor’s special instruction, which essentially incorporated the language of the first sentence of section 653m, subdivision (a). The instruction did not specify a particular victim. The court further instructed the jury, in response to a jury inquiry, that count 4 related to the ABC News posting of October 5, 2007. During her argument, the prosecutor did not refer to any particular victim. Rather, the prosecutor’s entire argument to the jury as to count 4 was as follows: “The last count, contact by electronic communication device with intent to annoy is essentially that you go on—in this case, it’s a computer. You go on a computer, and you address to someone obscene language or threat to inflict injury to the person or property. In this case, it’s really obscene language, talking about a killing spree and offing preschoolers. An offense is committed at the time that the information is sent on the computer and includes—electronic communication device includes a computer.” Defense counsel did not specifically focus his argument on count 4.
The People argue that defendant “was addressing his comment to, and intended to contact, other people,” and that he “was actually successful in contacting another,” i.e., the woman in Florida who read defendant’s message and called the college to warn them, following which the college read the message and took steps in response. However, the statute states elements in the conjunctive: It requires both that the defendant make contact with another person by means of an electronic communication and that the defendant “address[] to or about the other person” obscene language or a threat to injure ‘the person addressed or any member of his or her family ....” (§ 653m, subd. (a), italics added.) The People do not argue, nor can they on the basis of the record before us, that the woman in Florida was the person to whom or about whom the obscene language or threat was addressed. We therefore conclude the evidence was insufficient to establish a violation of section 653m.
We do not mean to minimize the gravity of defendant’s conduct or the genuine distress and disturbance it undoubtedly caused. Nor will defendant’s conduct go unpunished. Notably, defendant entered a plea of guilty to count 1, a misdemeanor violation of section 422. That charge was based on the same conduct that gave rise to count 4, and defendant does not challenge his conviction of that offense. Nonetheless, it is a fundamental principle of due process that the offense of which a defendant is convicted corresponds to the defendant’s actual conduct. (See, e.g., People v. Tapia (2005) 129 Cal.App.4th 1153, 1166.) Section 653m, subdivision (a), by its own terms, simply is not elastic enough to cover defendant’s specific actions.
Because we conclude the evidence did not establish a violation of section 653m, subdivision (a), we need not address defendant’s contention of instructional error with respect to the same count.
IV. DISPOSITION
Defendant’s conviction of a violation of section 653m, subdivision (a) is reversed. In all other respects, the judgment is affirmed.
We concur: GAUT,J., KING J.