Opinion
H045195
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. CARY ANDREW CRITTENDEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1642778)
A jury found appellant Cary Andrew Crittenden guilty of stalking a deputy sheriff, electronically distributing the deputy sheriff's personal identifying information, and publishing the residential address of another deputy sheriff to obstruct justice. The trial court sentenced Crittenden to three years in prison for the felony stalking conviction and six-month terms in the county jail for the other two convictions.
On appeal, Crittenden claims the evidence was insufficient to support the stalking conviction. In addition, he contends the trial court erred in several ways when instructing the jurors on stalking. Finally, he claims, based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court violated his constitutional rights by imposing restitution fines, fees, and assessments without assessing his ability to pay the ordered amounts.
In a supplemental opening brief, Crittenden claims the $150 restitution fine imposed on one of his misdemeanor convictions was unauthorized, and his defense counsel was ineffective for failing to object to it.
For the reasons explained below, we modify the judgment to strike the $150 restitution fine and affirm the judgment as modified.
Crittenden, representing himself, has filed a petition for writ of habeas corpus (H046743). This court ordered that the petition would be considered with this appeal, and we have disposed of it by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural Background
On August 15, 2016, the Santa Clara County District Attorney filed an information charging Crittenden with one count of stalking (Pen. Code, § 646.9, subd. (a) ; count 1), two counts of misdemeanor electronic distribution of personal identifying information (§ 653.2, subd. (a); counts 2 & 4) and two counts of misdemeanor disseminating the address or telephone number of a public safety officer to obstruct justice (§ 146e, subd. (a), counts 3 & 5). The district attorney alleged the crimes in counts 1, 2, and 3 were committed against Santa Clara County Deputy Sheriff David Carroll on or about December 11, 2015, and the crimes in counts 4 and 5 were committed against Santa Clara County Deputy Sheriff Reyna Andalon on or about August 21, 2015.
Unspecified statutory references are to the Penal Code.
In October 2016, the district attorney presented the case to a jury. On October 27, 2016, the jury found Crittenden guilty of counts 1, 2, and 5, not guilty of count 4, and could not reach a verdict on count 3, resulting in a mistrial on that count.
Although it does not appear that the trial court dismissed count 3 on the record, the minute order for the sentencing hearing indicates a dismissal of that count.
On September 8, 2017, the trial court sentenced Crittenden to the aggravated term of three years in state prison on count 1 (with 601 days of presentence credit for time served), six months in county jail on count 2 (concurrent to count 1), and six months in county jail on count 5 (consecutive to count 1). The trial court also imposed various fines, fees, and assessments on each count.
B. The Evidence Presented at Trial
1. The Prosecution Evidence
a. Counts 1-3
In 2013, Deputy Sheriff David Carroll was assigned to investigate Crittenden for e-mails he sent to a superior court judge. The judge had presided over eviction proceedings concerning Crittenden's friend Heidi Yauman. Carroll called Crittenden about the e-mails. Crittenden said he was lobbying to have the eviction overturned and felt it was unlawful. Carroll told Crittenden that the judge found the e-mails to be harassing and he should stop sending them. Carroll completed his investigation without taking additional action against Crittenden.
Carroll later investigated Crittenden for disseminating on the Internet photographs, the home address, and the phone number of Aleksandra Ridgeway, a Santa Clara County deputy sheriff, and Robert Ridgeway, her husband and former reserve police officer (collectively, the Ridgeways). Carroll learned through investigation that Robert Ridgeway had installed a surveillance camera system at Yauman's apartment complex. Carroll also learned that Crittenden had worked with others, including the person who administered a website called "uglyjudge.com," to disseminate the information about the Ridgeways. Carroll's investigation culminated in misdemeanor charges against Crittenden for electronic harassment under section 653.2, subdivision (a). In September 2014, Crittenden pleaded no contest to the charges and was placed on probation. Several months later, Carroll arrested Crittenden for violating his probation by posting harassing material on Facebook about the Ridgeways.
Crittenden had included information about the Ridgeways in what Carroll and the parties at trial called "web banners." The web banners were digital graphics that contained images and text.
Carroll testified that "uglyjudge.com" was operated by Robert Gettinger. Gettinger claimed to be a former police officer dedicated to exposing government corruption. Gettinger posted graphics, photos, and articles about police officers, lawyers, and judges whom Gettinger believed were corrupt.
Evidence regarding Crittenden's prior offenses was admitted under Evidence Code section 1101, subdivision (b).
Crittenden complained to the county sheriff's internal affairs division that Carroll lied about him in police reports. Crittenden also began sending e-mails to various people about Carroll and eventually posted information about him on the Internet. On March 6, 2015, Crittenden sent an e-mail with the subject "False Statements by Detective David Carroll" to an internal affairs lieutenant and several other people. In the e-mail, Crittenden mentioned the city in which Carroll lived and that Carroll had displayed a political campaign sign on his lawn in 2014. Most of the people included on the e-mail were affiliated with various Santa Clara County agencies, but Carroll did not know who was associated with a certain Gmail address included on the e-mail. Although Crittenden did not send this e-mail to Carroll, Carroll was aware that Crittenden had made a complaint to internal affairs and the e-mail was shared with Carroll. Carroll was concerned about the dissemination of his personal information and wondered how Crittenden knew about the campaign sign and location of his home.
Carroll voluntarily recused himself from any further investigation of Crittenden because of the Internet posts.
All dates are in 2015 unless otherwise indicated.
In another short e-mail to the internal affairs lieutenant on March 18, Crittenden said Carroll was "subject to prosecution" under federal civil rights law and a lien might be placed on his property. Although Crittenden did not send this e-mail to Carroll, Carroll was alerted about the e-mail and viewed it around the time it was sent. The e-mail included Carroll's home address, which was concerning to Carroll. Crittenden sent a copy of this e-mail to an attorney with the Santa Clara County Counsel's office who was assigned to the sheriff's office and a blind copy ("BCC") to a person at the county's social services agency.
The next day, March 19, Crittenden sent an e-mail with two attached web banners that included Carroll's photograph. The e-mail asserted Carroll fabricated evidence and a was a "Disgraced sheriff detective scrambl[ing] to create illusion of continuity to fake court records." Crittenden addressed this e-mail to Joseph Camp, whom Carroll did not know, and sent a copy of it to an e-mail address associated with Gettinger at "uglyjudge.com" and to two other people unknown to Carroll. In the e-mail, Crittenden said that if anyone criticized the judge who evicted Yauman, the judge would send "Carroll out to stalk, harass and threaten the whistleblowers, terrorize the victims and their families and frame them." Crittenden wrote further: "While bringing the heat down on [the judge], it is critical to also put pressure on others in his inner circle." Carroll testified that these web banners appeared in his search results when he searched for his name on the Internet. Carroll felt harassed by the web banners. Carroll believed they publicly tarnished his reputation and potentially jeopardized his future employment opportunities. They also were "unnerving" to him because they might provoke someone to seek him out and attempt to harm him.
On May 8, Crittenden sent an e-mail to Gettinger at "uglyjudge.com," copying on the e-mail two e-mail addresses that Carroll did not recognize. Crittenden attached to the e-mail a Facebook photograph of Carroll and his sister. This image of Carroll was used in the two web banners that were attached to Crittenden's March 19 e-mail.
On June 5, Crittenden sent an e-mail to a Gmail address asking the otherwise unidentified recipient to share an attached web banner on Facebook. The web banner alleged a "child abuse cover up" in Santa Clara County, included Carroll's picture, and noted his "history of false reports and fabricating evidence" and "target[ing] whistle blowers." (Capitalization omitted.)
On July 8, Crittenden sent an e-mail to a friend of his named Joy Birnie and copied it to Carroll's work e-mail address. Carroll did not know Birnie. The e-mail began, "Detective David Carroll is not a spirit filled Christian." This e-mail caused Carroll concern because nothing posted on the Internet mentioned his faith, and he did not know how Crittenden learned about it. The e-mail also referred to Carroll's house, truck, and dog in the context of suing Carroll in federal court and "tak[ing] everything from him." Carroll had no idea how Crittenden knew that he owned a truck or a dog. This information furthered Carroll's fear. Carroll pondered whether Crittenden or someone else might have been observing his home or talking to someone who knew him to obtain this information. The e-mail concluded, "Detective David Carroll is a vicious brutal and VIOLENT criminal & Heidi is fortunate she was not killed by him. He would have thought nothing of it." Carroll testified that he had never met or interacted with Heidi Yauman, though he did see her in court. Carroll said the e-mail caused him to feel scared, "on edge," and unnerved.
On July 23, Crittenden sent an e-mail to Gettinger at "uglyjudge.com" and copied it to a person who promotes herself as an Internet reporter at large. The e-mail included a web banner that depicted Crittenden, Carroll, and another detective, Samy Tarazi, and alleged that "police file false reports to frame innocent man." (Capitalization omitted.)
On December 11, Crittenden e-mailed Carroll twice at his sheriff's department e-mail address and included several other people on those and other e-mails he sent that day. In the first e-mail Crittenden sent to Carroll that day at 1:24 p.m., Crittenden included Carroll as a copied recipient. Crittenden addressed this e-mail to an employee of Santa Clara County's social services agency. In addition to copying Carroll on the e-mail, Crittenden copied Detective Tarazi, a public defender, the prosecutor in this case, a person associated with the Santa Clara County Superior Court, the "CustodyOpCommission," and a person apparently associated with an organization called Momentum for Mental Health In the e-mail, Crittenden listed Yauman's home address in San Jose, but said he did not wish to disclose his current address and wrote "If I am arrested for defending [Yauman's rights], I will not plead." He also said, "Come arrest me anytime. It will go to [the] Supreme Court & I promise that federal legislation will be named for [Yauman]." (Capitalization and underlining omitted.)
The December 11 e-mails were admitted into evidence as People's exhibit No. 9. Carroll did not testify about his receipt of the first of the two e-mails sent to him that day. Based on People's exhibit No. 9, it appears that Crittenden resent the first e-mail to Carroll with the second e-mail.
In the second e-mail, which Crittenden sent directly to Carroll at 7:47 PM on December 11 (second e-mail), Crittenden accused Carroll of filing false police reports that included Crittenden's name and social security number. Crittenden attached to this second e-mail some prior e-mails he had sent to various people that day, several web banners, and multiple weblinks to ADT home security system user and installation manuals. Crittenden wrote to Carroll, "I retain my [F]irst [A]mendment right to publish your name anyway, shape or form that I please. [¶] It is YOU, NOT I THAT WILL LIVE THE BURDEN [sic] OF YOUR ACTIONS, and since you committed identity theft, I need to be able to point the finger at you so that everyone understands that these records are yours / not mine. [¶] Like my [social security number], you do not have the right to ADT security trademark. [¶] Any legal issues regarding ADT are with them."
One web banner Crittenden sent to Carroll twice on December 11 (and to others in e-mails that day) included Carroll's home address and a map of Carroll's neighborhood with a red arrow pointing to Carroll's home. This web banner said that Carroll "believes that he retains the unalienable right to create a fake court record using my real name, photo and S.S.N. using fake address, fake events and circumstances . . . I therefore have [the] unalienable First Amendment right to publish his real name and real address: [redacted address] [arrow pointing to a map] The public has the right to know that a criminal lives here who commits identity theft." (Capitalization omitted.) Another web banner Crittenden sent to Carroll twice on December 11 (and to others in e-mails that day) included the ADT logo and said, "Download user manu[a]l to Detective David Carroll's home security alarm system." (Capitalization omitted.)
We refer to this web banner as the "ADT web banner."
Carroll testified that the recipients of the second e-mail included Gettinger, an attorney involved in the Yauman eviction case, a person who claimed to have been a judge and currently blogged on the Internet about government and law enforcement corruption, a person who appeared to be an attorney, the purported Internet reporter at large, and a person for whom Carroll could not find any information. Carroll considered Crittenden's e-mail and web banners to be "an invitation to go to [his] house and break in" and "a direct and intentional act to instill fear in [him]."
The second e-mail and web banners Crittenden sent on December 11 placed Carroll and his family in fear for their safety and "altered the course of [his] family's life. Especially over the next week." Because of the e-mail, Carroll contacted his local police department and asked if officers could periodically drive by his home. Carroll and his wife also started keeping the curtains in their home shut. Carroll's wife kept the alarm system on all day and did not allow their children to play in their yard. The night after he received the e-mail, Carroll heard his dog barking around 3:00 a.m. Later that morning, Carroll armed himself and did "a tactical walk around [his] house to make sure everything was okay." About a week later, Carroll saw a person in front of his house sitting in a car and talking on a phone. Carroll called the police about this suspicious vehicle and then armed himself and observed the person. It turned out that the person was just delivering food that Carroll's wife had ordered.
In addition, Crittenden sent another e-mail at 2:24 p.m. on December 11 that included the 1:24 p.m. e-mail and the web banner listing Carroll's home address and depicting his home on a map (but not the ADT web banner). Crittenden directed this e-mail to several people with government and news media e-mail addresses and a few other persons.
On cross-examination, Carroll testified that he had never seen Crittenden in his neighborhood. During and after his investigation of Crittenden, Carroll did not have any reason to believe Crittenden had any weapons. In addition, Carroll did not have any knowledge of Crittenden having committed acts of violence.
b. Counts 4-5
Deputy Sheriff Reyna Andalon was assigned to the sheriff's office risk assessment unit and investigated an e-mail Crittenden sent on August 21 to, among others, a superior court judge at her personal e-mail address. Andalon determined that there were no threats in this e-mail but forwarded it to Detective Tarazi, who had been investigating Crittenden. Later than night, Crittenden sent an e-mail to Andalon's work e-mail account. Crittenden copied it to four e-mail addresses.
In the e-mail, Crittenden "advised" Andalon that she was "subject to prosecution" under federal civil rights law and said, "I am legally entitled to collect for damages and I may therefore place a lien against your home at [Andalon's home address]. [¶] You are at risk of losing your home and forfeiting all your assets to me. [¶] . . . [¶] If you deprive me of my rights, I will deprive you of your home, and I will prevail in Federal Court." (Capitalization omitted.) Crittenden included recipients on this e-mail whom Andalon did not know. This scared Andalon because the e-mail contained her home address. Andalon upgraded her home security system and requested a criminal protective order after she received Crittenden's e-mail. Andalon believed that Crittenden was trying to get her to stop doing her job by publishing her home address and threatening to go after her home.
2. The Defense Evidence
Crittenden was the sole defense witness. Crittenden admitted sending the e-mails introduced by the prosecution. He also acknowledged creating some of the web banners about Carroll—including the one depicting Carroll's home address and the map—and providing information and material (including photographs) to Gettinger for other web banners. However, Crittenden said that he "[a]bsolutely" did not send the e-mails with the intent to cause Carroll or Andalon to fear for their safety or the safety of their families.
The trial court admitted two photographs as defense exhibits during the prosecution's case. Defense exhibit A depicted Carroll's home with Christmas lights strung on it. Defense exhibit B depicted Carroll's home, his truck, and an ADT home security sign in his front yard.
Crittenden testified that he expressed "anger and frustration" in his e-mails because Carroll had falsified reports and other documents by including his name, social security number, and driver's license number, and he had not been able to redress his grievance about Carroll's acts of fraud. Because Crittenden was not able to counter Carroll's fraud or "effectively bring about [his] side of the story," he "put [his] version of the story on the net to where it's burned on the internet." Crittenden believed he "was pretty much blown off" when he communicated his grievances about Carroll to supervisors and internal affairs "did a terrible job" investigating his complaint. Crittenden acknowledged sending information about his grievances to the news media but said he was not satisfied with the "mainstream" media's response (as compared to the response of some "non-mainstream" media that covered the situation). Crittenden denied that he tried to obstruct justice when he disseminated Carroll's home address because, by that time, he believed Carroll was no longer investigating him.
Crittenden knew Carroll was a Christian through a friend from church who also knew Carroll. Crittenden said he did not specifically search for Carroll's home address, but he could not remember how he obtained it and noted "it was out there in the internet." He knew that Carroll owned a truck from a Google Earth picture and social media. He learned that Carroll had a dog through the Facebook page of Carroll's wife, which was linked to their dog's own Facebook page. Crittenden said he happened to learn about the campaign sign in Carroll's yard because someone had mentioned it on the Internet in regard to Carroll's support for the candidate. Crittenden obtained a photograph of Carroll from Carroll's sister's Facebook account, although Crittenden could not recall how he found her Facebook page.
Other than Crittenden's statement, there was no evidence about whether Carroll's home address was publicly available on the internet. Carroll, however, testified that he took steps to ensure that his home address was not public knowledge. He said he kept his address private with the Department of Motor Vehicles and did not list his address on websites.
Regarding the second December 11 e-mail to Carroll, Crittenden said it was still in draft form when it was sent accidentally after his computer crashed. At the time, Crittenden was frustrated that there were "restraints put on [his] First Amendment rights but no restraints put on Detective Carroll and his reports." Crittenden was "trying to make a point to him." Crittenden admitted "it was stupid the way [he] did it" and he regretted it. Crittenden included Carroll's home address in the e-mail "to show the extremity of what [Carroll] was doing." Crittenden felt he "basically had to say something extreme to show -- to demonstrate what [Carroll] was doing was extreme."
Crittenden testified that he did not intend to cause Carroll fear, but he could "see how looking back at it in retrospect, how it could have that effect." Crittenden identified the people to whom he had sent the second December 11 e-mail and said he did not intend for any of them to harm Carroll. Crittenden said he was "being sarcastic" when he included the information about Carroll's home security system but was "trying to make a point" that the law "should be equal" and "apply to everybody." Crittenden learned that Carroll had an ADT security system from a Google Earth picture. Crittenden said he had never been in the vicinity of Carroll's house.
Crittenden described an occasion when he believed a certain Facebook correspondent who identified himself as "Steven Hall" was trying to entice him to violence. Crittenden reported the person to the authorities. At some point Crittenden learned the person was actually Carroll using a pseudonym.
Carroll testified that, as part of his investigation of the Ridgeway matter, he created an undercover Facebook account and had "a very lengthy conversation with Mr. Crittenden."
Regarding his e-mail to Deputy Sheriff Andalon, Crittenden felt Andalon was trying to report him and helping to fabricate a probation violation by forwarding his initial e-mail to Detective Tarazi. Crittenden said he was "simply reporting misconduct" in his initial e-mail and he could not figure out why that e-mail was sent to the sheriff's department—the very people he was complaining about. Crittenden included Andalon's home address in his e-mail to her "to show that [he] was serious about following through with" his threat to sue her and to cause her to have "respect for her duties." Crittenden said that, after learning that Andalon had forwarded his initial e-mail, he searched for her name online and found her home address. He denied trying to prevent Andalon from investigating him or charging him with a crime.
II. DISCUSSION
Crittenden's claims of error relate to his conviction for felony stalking and the restitution fines, fees, and assessments imposed at his sentencing. Crittenden contends that the evidence was insufficient to support the conviction on count 1, stalking under section 646.9, subdivision (a). He claims further that the trial court erred by permitting the jurors to consider his constitutionally protected activity, refusing to provide the jurors an instruction concerning Carroll's fears about third parties, and giving a legally incorrect answer to a jury question posed during deliberations. Regarding the fines, fees, and assessments, he asserts his constitutional rights were violated because the trial court failed to assess his ability to pay the amounts ordered. He further contends the $150 restitution fine on count 5 was unauthorized and his defense counsel should have objected to it.
A. Sufficiency of the Evidence for Count 1
Crittenden contends that his conviction for stalking rested on "protected speech aimed at public redress of his grievances about perceived official misconduct." He maintains that, "[w]ithout consideration of the protected speech, the evidence is insufficient to establish that [he] stalked Carroll." He argues specifically that "[a] repeated course of harassment and credible threats were not established by the prosecution when 'the communication[s] and the surrounding circumstances are considered together.' " He urges this court to independently review the trial record to ensure that his free speech rights were not infringed by the jury's determination that his actions constituted stalking.
The Attorney General counters that "[u]nder any standard of review, sufficient evidence supports [Crittenden's] conviction for stalking. His conviction did not infringe his First Amendment rights." The Attorney General does not agree that this court should engage in independent review of Crittenden's conviction for stalking but contends we need not decide the appropriate standard of review because the proof at trial satisfied the elements of section 646.9 whether reviewed independently or for substantial evidence.
1. Legal Principles
a. Elements of Section 646.9
As applicable to the prosecution against Crittenden, section 646.9 provides in relevant part: "Any person who . . . 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." (§ 646.9, subd. (a).) To convict Crittenden of stalking Carroll, the prosecution had to prove beyond a reasonable doubt that Crittenden (1) harassed Carroll and (2) made a credible threat (3) with the intent to place Carroll in reasonable fear for his safety or the safety of his immediate family. (See People v. Ewing (1999) 76 Cal.App.4th 199, 210; see also People v. Carron (1995) 37 Cal.App.4th 1230, 1238.)
Section 646.9 also criminalizes the willful, malicious, and repeated following of another person, but the prosecution did not argue this theory of liability against Crittenden.
Under section 646.9, a person " 'harasses' " when he or she "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).) The statute defines " 'course of conduct' " as "two or more acts occurring over a period of time, however short, evidencing a continuity of purpose." (§ 646.9, subd. (f).) 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. The present incarceration of a person making the threat shall not be a bar to prosecution under this section." (§ 646.9, subd. (g).)
Both the definitions of " 'course of conduct' " and " 'credible threat' " in section 646.9 expressly exclude "[c]onstitutionally protected activity." (§ 646.9, subds. (f), (g).) Crittenden's challenge to the sufficiency of the evidence rests on his contention that there was insufficient evidence of conduct that was not constitutionally protected to support his conviction.
b. Standard of Review
Ordinarily, " '[w]hen considering 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.' " (People v. Powell (2018) 5 Cal.5th 921, 944; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) A reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "[A]n appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding." (People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
Crittenden acknowledges the substantial evidence standard of review and urges us to independently review the evidence because he raises "a plausible First Amendment defense." As support for his argument, Crittenden relies on In re George T. (2003) 33 Cal.4th 620, 632 (George T.), a case reviewing a conviction for making criminal threats under section 422.
Section 422, subdivision (a), states: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment."
In George T., our Supreme Court concluded that "a reviewing court should make an independent examination of the record in a section 422 case when a defendant raises a plausible First Amendment defense to ensure that a speaker's free speech rights have not been infringed by a trier of fact's determination that the communication at issue constitutes a criminal threat." (George T., supra, 33 Cal.4th. at p. 632.) "[U]nder independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. Accordingly, [appellate courts] defer to the [trier of fact's] credibility determinations, but will ' " 'make an independent examination of the whole record' " ' [citation], including a review of the constitutionally relevant facts ' "de novo, independently of any previous determinations by the [trier of fact]" ' [citations] to determine whether [the accused's communication] was a criminal threat entitled to no First Amendment protection." (Id. at p. 634.)
The California Supreme Court explained that "[i]ndependent review is not the equivalent of de novo review 'in which a reviewing court makes an original appraisal of all the evidence to decide whether or not it believes' the outcome should have been different." (George T., supra, 33 Cal.4th. at p. 634.) Moreover, "credibility determinations are not subject to independent review, nor are findings of fact that are not relevant to the First Amendment issue." (Ibid.) Under this standard, findings that do not pertain to the nature of the speech at issue, such as the intent element of the crime, are reviewed only for substantial evidence. (People v. Lopez (2015) 240 Cal.App.4th 436, 447 (Lopez).)
The Attorney General contends that independent review is not necessary for a stalking conviction. Citing People v. Borrelli (2000) 77 Cal.App.4th 703, 716-717, the Attorney General argues that section 646.9 is different than section 422, because section 646.9 " 'does not regulate the content of speech insomuch as the manner in which the communication is made.' " The Attorney General asserts that, because "a stalking conviction is always dependent on a course of conduct rather than a single expressive statement, the danger that First Amendment rights may be impinged by a stalking prosecution is minimal compared to a criminal threats prosecution."
Under the facts of this case, we believe Crittenden has the better argument. The evidence supporting the stalking conviction against Crittenden consisted solely of Crittenden's speech in the form of web banners and his e-mails to Carroll and others. The proof Crittenden challenges as insufficient unquestionably occurred in a "First Amendment context" (see George T., supra, 33 Cal.4th at p. 632) in which Crittenden asserts he was lawfully speaking against governmental overreach. Therefore, we will conduct an independent review of the trial record under the standard articulated in George T.
2. Analysis
Crittenden claims the evidence was insufficient in that "[t]he jury was unfairly permitted to consider [his] emails as evidence of repeated harassment, when the speech was mostly protected because it concerned [his] internal affairs claim and civil and criminal cases and association with the 'Markham Plaza Tenants Association.' " Crittenden contends further that, "[e]ven though [he] may have been incorrect, misguided, or even offensive, the bulk of his speech was not a basis for punishment in the absence of repeated conduct without reference to protected speech, any explicit reference to violence, or some implicit incitement of such violence." He argues that "none of [his] communications were sufficiently specific, or directed to [the e-mail recipients] in such a manner, 'as to convey a gravity of purpose and imminent prospect of execution' " of a threat to Carroll.
We are not persuaded that the evidence of stalking is insufficient to uphold Crittenden's conviction.
a. Harassment
Regarding the element of harassment, the prosecutor had the burden to prove that Crittenden knowingly and willfully committed two or more acts that evidenced a continuity of purpose (i.e., a course of conduct), were directed at Carroll, seriously alarmed, annoyed, tormented, or terrorized him, and served no legitimate purpose. (§ 646.9, subds. (a), (e), (f).) Further, "[c]onstitutionally protected activity is not included within the meaning of 'course of conduct.' " (§ 646.9, subd. (f).)
Crittenden argues that "the prosecution's case rested upon a series of emails that Carroll found harassing" and "[t]he jury was unfairly permitted to consider [his] emails as evidence of repeated harassment, when the speech was mostly protected." After providing "examples" of allegedly protected speech, Crittenden asserts that his "protestations about official wrongdoing was [sic] not repeated harassment, but rather, protected speech made over the course of a year."
We disagree. Over a period of nine months, Crittenden sent multiple e-mails containing personal information about Carroll to various people, some of whom were unknown to Carroll. Crittenden began this conduct in March 2015 by sending an e-mail to an internal affairs lieutenant and other people that mentioned Carroll's hometown. After sending six more e-mails about Carroll to various people (and including Carroll on one of those e-mails) and posting web banners on the Internet, Crittenden sent the December 11 e-mails. As we explain below, Crittenden's acts on December 11 alone satisfy the harassment element of stalking.
We note that the date of the stalking offense charged in count 1 of the information is "[o]n or about December 11, 2015." When instructing the jurors at the close of evidence, the trial court read count 1 of the information and instructed that "[t]he People are not required to prove that the crime took place exactly on that day, but it happened reasonably close to [December 11, 2015]." The prosecutor argued to the jury that the harassment here included Crittenden's posts about Carroll on the Internet prior to December 11. Referring to Crittenden's sending the second e-mail on December 11, 2015, the prosecutor said the "[h]arassment turned into a threat" and that e-mail "changed things." Crittenden did not object at trial to the prosecutor's argument and reference to the pre-December 11 acts or to the trial court's instructions. Although we are not precluded from examining the evidence from March through December 11, as explained further below, we conclude the evidence of Crittenden's acts on December 11 is sufficient to support the conviction for stalking.
On December 11, Crittenden sent two e-mails to Carroll. In the first e-mail, sent at 1:24 p.m., Crittenden copied Carroll, including the web banner depicting Carroll's home address and a map of his neighborhood and the ADT web banner. The former banner also referenced Carroll's alleged creation of "a fake court record" and said the public had a "right to know" where "a criminal lives [] who commits identity theft." (Capitalization omitted.) The ADT web banner invited viewers to download an ADT manual to "Detective David Carroll's home security alarm system." (Capitalization omitted.)
We note that no witness at trial testified specifically about the first e-mail Crittenden sent on December 11. However, the e-mail was included in People's exhibit No. 9, which contained all of the December 11 e-mails sent by Crittenden. This exhibit was admitted into evidence. During the final instructions after closing arguments, the trial court told the jurors that the exhibits would be provided for their deliberations and the jurors can "use them as [they] see fit." We therefore infer that the jury received all admitted exhibits, including exhibit No. 9.
In the second e-mail, sent to Carroll directly at 7:47 p.m., Crittenden included the two web banners again and said Carroll would "live [with] the burden of [his] actions." (Capitalization omitted.) Crittenden also provided weblinks for ADT manuals in his e-mail. Crittenden included Gettinger at "uglyjudge.com," among others, on the second e-mail he sent to Carroll.
Carroll testified about the concern and fear he had for his safety and that of his family as a result of Crittenden's e-mails and web banners. Regarding the second e-mail on December 11, Carroll testified he was concerned that Crittenden or someone who saw what Crittenden was disseminating might attempt to do him harm. Carroll said that he had found some of Crittenden's other web banners when he searched the Internet. Carroll specifically described to the jury his and his family's fearful reactions after he received Crittenden's e-mail and web banners on December 11. Crittenden himself acknowledged "how [his December 11 e-mail] could have th[e] effect" of causing Carroll fear.
Based on the evidence of Crittenden's two December 11 e-mails, the jurors could have reasonably concluded that Crittenden willfully engaged in two acts directed at Carroll that seriously alarmed and annoyed him. Crittenden's actions on December 11 displayed a continuity of purpose to cause Carroll concern and fear by making him aware that his home address and home security information were known and would be disseminated to others. (See People v. Uecker (2009) 172 Cal.App.4th 583, 594 (Uecker).) Although Carroll did not testify about the first e-mail Crittenden sent to him on December 11, the jury could reasonably have inferred from Carroll's testimony about the second e-mail that the first one also seriously alarmed and annoyed him because both e-mails included the same web banners listing Carroll's home address and inviting people to download information about Carroll's home security system. Carroll testified about the fear generated by the two web banners themselves, in addition to the content of the second e-mail. Carroll said the web banners "implie[d] harm further" and "absolutely serve[d] as an invitation to break into [his] house." Thus, the evidence was sufficient to prove that Crittenden's act of copying Carroll on the first e-mail and including the web banners in that e-mail harassed Carroll in a manner similar to the second e-mail.
Further, the jury also could have reasonably found that Crittenden's acts served no legitimate purpose. When determining whether Crittenden's purpose for including Carroll's home address and home security information in the web banners sent with his e-mails could be considered "legitimate," the issue is considered from "the view of the victim or a reasonable person," not Crittenden. (People v. Tran (1996) 47 Cal.App.4th 253, 260.) Crittenden's stated desire to seek redress for his grievances about Carroll cannot be reasonably viewed as being served or furthered by his inclusion of Carroll's home address and security system information with his e-mails. This information bears no relationship to the alleged official misconduct that Crittenden claimed Carroll had committed. Crittenden certainly could have fully aired his complaint to government officials and otherwise expressed his views about Carroll to others without mentioning where Carroll lived or inviting people to download a manual to Carroll's home security system.
In addition, exercising our independent review under George T., we are not persuaded that the evidence of Crittenden's acts on December 11 comprises "[c]onstitutionally protected activity" that cannot be "included within the meaning of 'course of conduct.' " (§ 646.9, subd. (f).)
"The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech." (Virginia v. Black (2003) 538 U.S. 343, 358 (Black).) The protections afforded by the First Amendment, however, "are not absolute," and the United States Supreme Court has "long recognized that the government may regulate certain categories of expression consistent with the Constitution." (Ibid.) The categories include incitement, obscenity, defamation, speech integral to criminal conduct, fighting words, child pornography, fraud, true threats, and speech presenting grave and imminent danger. (United States v. Alvarez (2012) 567 U.S. 709, 717-718 (plur. opn. of Kennedy, J.) (Alvarez).)
" 'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. [Citations.] The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats 'protect[s] individuals from the fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people 'from the possibility that the threatened violence will occur.' " (Black, supra, 538 U.S. at pp. 359-360.) "When a reasonable person would foresee that the context and import of the words will cause the listener to believe he or she will be subjected to physical violence, the threat falls outside First Amendment protection." (In re M.S. (1995) 10 Cal.4th 698, 710 (M.S.); see also id. at p. 714 ["Violence and threats of violence . . . play no part in the 'marketplace of ideas.' As such, they are punishable because of the state's interest in protecting individuals from the fear of violence, the disruption fear engenders and the possibility the threatened violence will occur."].)
Further, the state "may constitutionally criminalize speech which threatens to take the life of or to inflict bodily harm upon a government official in view of the state's valid and overwhelming interest in protecting the safety of its public officials and permitting them to perform duties without interference from threats of physical violence." (People v. Gudger (1994) 29 Cal.App.4th 310, 316-317; see also Watts v. United States (1969) 394 U.S. 705, 707 (Watts).)
The California Supreme Court has emphasized that whether ambiguous speech is a true threat—and thus falls outside the category of protected speech—often depends on context. "When the words are vague, context takes on added significance [] care must be taken not to diminish the requirements that the communicator have the specific intent to convey a threat and that the threat be of such a nature as to convey a gravity of purpose and immediate prospect of the threat's execution." (George T., supra, 33 Cal.4th at p. 637.) A history of animosity between the communicator and the recipient can provide evidence of such a specific intent. (Ibid.) The evidence here showed that Crittenden had collected and distributed Carroll's personal information through e-mails and web banners over several months. Crittenden had previously sought to have the web banners he created (or in which he assisted in the creation) posted on the Internet, including on "uglyjudge.com" and Facebook, to garner publicity and create pressure on Carroll. Crittenden's earlier web banners combined Carroll's photograph with allegations that he falsified documents and fabricated evidence. This evidence provides context for a reasonable conclusion by any juror that Crittenden's actions on December 11 amounted to a true threat.
Moreover, the threat need not contain "overt suggestions of violent intent" to constitute a "credible threat" that falls outside of constitutionally protected activity. (Lopez, supra, 240 Cal.App.4th at p. 453; see also Black, supra, 538 U.S. at p. 360 [cross burnings fit within true threats].) As detailed above, Crittenden's December 11 e-mails included web banners listing Carroll's home address and inviting people to download information about his home security system. In addition, the second e-mail said Carroll would live with the burden of his actions, provided weblinks for ADT manuals, and included Gettinger and others as recipients. Crittenden's statements, moreover, were unlike the "political hyperbole" (Watts, supra, 394 U.S. at p. 708 ) or expressions of "jest or frustration" that are protected by the First Amendment. (People v. Lowery (2011) 52 Cal.4th 419, 427 (Lowery) [construing section 140(a) as applying only to true threats].) Rather, Crittenden's actions can reasonably be viewed as engendering fear that Carroll or his family will be subjected to harm. (See People v. Halgren (1996) 52 Cal.App.4th 1223, 1231-1232 (Halgren) [in the context of a series of phone calls, the First Amendment did not protect defendant's statements to victim that "she would be sorry she had been rude to him," "she would pay for being rude to him," and he was going to " 'fix her' " or " 'fix this.' "]; see also In re Ernesto H. (2004) 125 Cal.App.4th 298, 303-304, 313 [minor's statement " ' "Yell at me again and see what happens," ' " along with his step toward the victim and threatening stance was a true threat].)
"In Watts, a young man attending a political rally in Washington, D.C., during the time of the Vietnam War, informed a group of attendees that he had just received his draft notice to report for induction and declared he would not go. 'If they ever make me carry a rifle,' he stated further, 'the first man I want to get in my sights is L.B.J.' His listeners laughed. [Citation.] In reversing Watts's conviction for threatening the life of the president, the United States Supreme Court considered the context and expressly conditional nature of the statement, as well as the listeners' reaction. The high court concluded the statement, rather than a threat, was merely a ' "very crude offensive method of stating . . . political opposition." ' " (M.S., supra, 10 Cal.4th at p. 711.)
Crittenden's actions with regard to the two e-mails he sent to Carroll on December 11 amount to a true threat because "a reasonable person would understand the allegedly threatening statements—when considered in their context and surrounding circumstances—'to communicate a serious expression of an intent to commit an act of unlawful violence.' " (Lowery, supra, 52 Cal.4th at p. 422.) For these reasons we conclude that the prosecutor presented sufficient evidence to establish the harassment element of stalking.
Because we conclude that Crittenden's acts on December 11 amount to a harassing course of conduct and unprotected true threats, we do not address whether the evidence regarding Crittenden's allegedly harassing actions prior to December 11 may include constitutionally protected activity.
b. Credible Threat and Reasonable Fear
We turn next to the credible threat element of stalking. As noted above, a "credible threat" under section 646.9 is not limited to explicit threats of violence. (See Lopez, supra, 240 Cal.App.4th at p. 449; see also Uecker, supra, 172 Cal.App.4th at p. 596.) Rather, the credible threat element may be implied from "a pattern of conduct or a combination . . . of statements and conduct." (§ 646.9, subd. (g).) "[I]n determining whether a threat occurred, the entire factual context, including the surrounding events and the reaction of the listeners, must be considered." (People v. Falck (1997) 52 Cal.App.4th 287, 298; see also People v. McPheeters (2013) 218 Cal.App.4th 124, 138 (McPheeters).) Moreover, when the defendant's acts are undertaken with the intent to place the target in reasonable fear for his or her safety and with the apparent ability to carry out the threat so as to cause the target to reasonably fear for their safety (§ 646.9, subd. (g)), "[s]uch threats 'pose a danger to society and thus are unprotected by the First Amendment.' " (Lopez, at p. 453, quoting Falck, at pp. 296-297.)
As discussed above, when Carroll received Crittenden's e-mails and web banners on December 11, he knew that Crittenden's prior dissemination of his photograph and personal information was done in a way to maximize the dispersal and exposure of the information. The web banners sent with the December 11 e-mails reiterated that Crittenden knew Carroll's home address. Further, Crittenden implied that Carroll's security system could be figured out and defeated. Based on these facts, it is proper to conclude that Carroll reasonably feared Crittenden might travel to his home and commit an act that would harm him or his family in retaliation for the wrong Crittenden perceived he had committed. In sum, Crittenden's actions on December 11 caused Carroll to reasonably fear that he or his family would be subjected to physical violence by Crittenden, notwithstanding the lack of an explicit threat of violence in those e-mails and web banners. (See Lopez, supra, 240 Cal.App.4th at p. 453 [defendant's conduct "reveal[ed] an obsession that a reasonable person would understand as threatening"; id. at p. 454 [and had "an ominous tone"].)
In addition, the evidence provided a substantial basis for the jurors to conclude that Crittenden acted with an intent to put Carroll in fear and with the apparent ability to carry out the threat. On December 11, Crittenden listed Carroll's home address, pinpointed Carroll's home on a map, and encouraged people to download information about Carroll's home security system. Although there was no evidence that Crittenden had been violent in the past, it was reasonable for the jury to deduce that Crittenden was free to move about the community and could make his way to Carroll's house and expose Carroll to harm. Despite Crittenden's testimony that he did not intend to cause Carroll to fear for his safety or that of his family, the jurors could reasonably have rejected his testimony and concluded from the evidence that Crittenden intended the result he actually caused. (See Lopez, supra, 240 Cal.App.4th at p. 454.)
Crittenden's actions on December 11, when viewed objectively, would cause a reasonable person to fear for his or her safety or the safety of their family. Accordingly, we are satisfied that Crittenden's conduct and communication amount to a credible threat that falls outside First Amendment protection.
For these reasons, Crittenden's conviction for stalking is supported by substantial evidence and, based on our independent review of the evidence, does not infringe Crittenden's First Amendment rights.
B. Jury Instructions on Stalking
Crittenden asserts the trial court erred when it instructed the jurors regarding stalking by permitting them to consider constitutionally protected speech, declining Crittenden's proposed instruction on Carroll's generalized fears about third-parties, and telling the jurors, in response to a jury question, that Carroll's generalized fear of third-parties was sufficient to find Crittenden guilty if Crittenden "had the apparent ability, or simply encouraged someone else, to cause harm."
1. Background
After the evidence had been presented, Crittenden requested that the stalking instruction (CALCRIM No. 1301) include the following language: " 'The person is not guilty of stalking if his conduct is constitutionally protected activity. Speech that is directed at exposing law enforcement corruption [] is constitutionally protected.' " The trial court declined to provide this instruction. The trial court said the determination of whether Crittenden's speech is constitutionally protected is one for the court, not the jury. The trial court stated further that the language was misleading and would confuse the jury.
A bracketed portion of CALCRIM No. 1301 states: "A person is not guilty of stalking if (his/her) conduct is constitutionally protected activity. __________ <Describe type of activity; see Bench Notes below> is constitutionally protected activity." The Bench Notes state: "If there is substantial evidence that any of the defendant's conduct was constitutionally protected, instruct on the type of constitutionally protected activity involved. (See the optional bracketed paragraph regarding constitutionally protected activity.) Examples of constitutionally protected activity include speech, protest, and assembly. (See Civ. Code, § 1708.7(f) [civil stalking statute].)"
Regarding the credible threat element of stalking, Crittenden requested the jurors be instructed "that the jury has to find that it was [Crittenden] who made the threat, and that the threat cannot consist of generalized fear about third parties and what they may or may not do." The prosecutor responded that the stalking statute was not "limited to threats where the defendant says he is going to be the one to hurt the victim." The prosecutor acknowledged that this case involved "an implied threat" and "so it's a little bit less clear where those lines are, but there's absolutely no case law that's limiting the threat to one where the defendant is going to personally do it." The prosecutor continued, "So it's not that he has to personally go to the home, but rather that he can get somebody else to go to his home or he can personally go to the home."
The trial court declined Crittenden's requested pinpoint instruction, finding it confusing and misleading. The trial court explained that a "big part of harassment is sending both the e-mails and also the web banners to third parties, and the course of conduct is two or more acts over a period of time, however short, demonstrating a continuous purpose. And even though not all the e-mails or all the web banners came in, because I limited that based upon the Defense request, the jury may find that that was sufficient continuous purpose and course of conduct. And so I think that given your instruction, the way it is currently drafted would be very misleading and confusing to the jury; so I'm going to decline to give it."
The trial court instructed the jury on stalking with a modified version of CALCRIM No. 1301—leaving out the language regarding "willfully, maliciously, and repeatedly follow[ing]" another person (as there was no evidence Crittenden had ever physically followed Carroll) but otherwise using the language of the pattern instruction.
Regarding the statutory requirement that the threat be " 'one that the maker of the threat appears to be able to carry out' " (§ 646.9, subd. (g)), the prosecutor argued to the jury that "all that means is that something that it seems like the person could do." The prosecutor provided some examples to illustrate her point. She described scenarios in which Crittenden both was personally able to carry out the threat and able to have someone else carry out the threat.
When explaining that the People did not have to prove that Crittenden actually carried out or even intended to carry out his threat, the prosecutor argued further, "So it doesn't matter whether or not Mr. Crittenden was actually planning to go to Dave Carroll's home or to send someone to Dave Carroll's home. What matters is that he meant to place him in fear by making the threat. Furthermore, the defendant does not have to actually carry out the threat nor does anyone else have to carry it out. And that's an important distinction. If Mr. Crittenden had actually gone to Dave Carroll's home or someone had gone at his direction, this would be a very different case, and there would be much more serious charges." The prosecutor said, "The focus here is fear: Was David Carroll in fear for his safety or his family's safety and was that fear reasonable, given all of the circumstances."
The prosecutor also drew the jury's attention to the specific threat underlying the stalking charge, focusing on the second e-mail from December 11. The prosecutor pointed out that the e-mail was sent to Carroll, disclosed his home address and security system information, and was copied to Gettinger at "uglyjudge.com," "a person who has disseminated information like this for Crittenden in the past."
Defense counsel argued that the evidence did not prove that Crittenden acted without a legitimate purpose or made a credible threat when he included Carroll's home address and home security information in the December 11 e-mail.
The jury began deliberations late on October 25, 2016. In the late afternoon of October 26, 2016, the jury asked the following questions in a jury note: "Re: CALCRIM 1301. In determining credible threat, does the 'maker' of the threat have to appear to be able to carry it out himself? Or can it include the maker of the threat inciting a 3rd party to carry it out?"
On the following morning, October 27, 2016, the parties and the trial court discussed the jury's questions. Crittenden argued that the answer to the first question had already been provided to the jury in CALCRIM No. 1301, because it said a credible threat is one that "the maker of the threat appears to be able to carry out." As for the second question, Crittenden argued that the answer "should be no" based on CALCRIM No. 1301 and because a credible threat as defined by the statute cannot be "read [] to allow the threat to be one that can be acted out by a third party."
The trial court agreed with Crittenden as to the first question. On the second question, the trial court found that, based on its analysis of the evidence and law (including cases interpreting section 422), "not only can [the threat] include [the] ability of Mr. Crittenden to carry it out, but also, it can also include the ability of third parties to carry it out, because Mr. Crittenden was the initiator of the threat." The trial court noted that Crittenden was selective about the recipients of his e-mails and "a big part of [Crittenden's] threat included . . . the combination of working with the administrator of uglyjudge.com, it also included the residential address . . . of this complaining witness."
The trial court provided the following answer to the jury, in writing: "The maker of the threat must appear to be able to carry it out. However, the credible threat can also include encouraging a 3rd party to carry it out." The jury returned its verdicts on the stalking and misdemeanor counts later that day.
2. Legal Principles
"In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.) That obligation includes instructing on all elements of a charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311, overruled on another ground in People v. Merritt (2017) 2 Cal.5th 819, 831.)
Regarding defenses, a "trial court is required to give a requested instruction on a defense only if substantial evidence supports the defense." (People v. Panah (2005) 35 Cal.4th 395, 484; see also People v. Salas (2006) 37 Cal.4th 967, 982 (Salas) [trial court has a sua sponte duty to instruct on an affirmative defense that is not inconsistent with the defendant's theory of the case if there is substantial evidence to support the defense].) Moreover, "a criminal defendant is entitled to pinpoint instructions that relate particular facts to an element of the charged offense and highlight or explain a theory of the defense if the instructions are supported by substantial evidence." (People v. Nelson (2016) 1 Cal.5th 513, 542.) However, a court should not give a requested instruction "if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence." (People v. Moon (2005) 37 Cal.4th 1, 30 (Moon).)
Regarding the standard for our review of Crittenden's claim of error, Crittenden contends generally that instructional error claims are reviewed de novo, citing People v. Guiuan (1998) 18 Cal.4th 558, 569; People v. Waidla (2000) 22 Cal.4th 690, 733; and People v. Johnson (2010) 180 Cal.App.4th 702, 707. The Attorney General does not address the relevant standard of review. Although the California Supreme Court has stated "the independent or de novo standard of review is applicable in assessing whether instructions correctly state the law" (People v. Posey (2004) 32 Cal.4th 193, 218), it recently applied abuse of discretion review to a claim challenging the denial of a pinpoint instruction. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 497.) As the Attorney General does not argue for abuse of discretion review, we will independently review Crittenden's entire claim of instructional error.
3. Analysis
a. Exclusion of Constitutionally Protected Activity
We begin by addressing the trial court's denial of Crittenden's request at the close of evidence for an instruction that a person " 'is not guilty of stalking if his conduct is constitutionally protected activity' " and " '[s]peech that is directed at exposing law enforcement corruption [] is constitutionally protected.' "
Crittenden argues that, without this language, "the jury was erroneously permitted to consider an abundance of protected speech as somehow evincing [Crittenden's] repeated efforts to stalk Carroll." He asserts that "[m]ost of the allegations of misconduct" in the three e-mails he sent to Carroll between July and December 2015 "were protected speech because they concerned appellant's efforts to obtain public redress of his grievances without violence." He claims further that the constitutionality of his speech was central to his defense and "[w]ithout instruction on the First Amendment, appellant could not fully present his defense, pursue his theory of the case, or fully inform the jury of the elements of the charge." Regarding prejudice, Crittenden argues that the error here concerns an element of the offense and the Attorney General must convince this court, beyond a reasonable doubt, that the failure to instruct did not contribute to the verdict.
The Attorney General counters, citing McPheeters, supra, 218 Cal.App.4th at p. 141, that because Crittenden's "course of conduct and implied threats were not protected by the First Amendment, it necessarily follows that the court did not err in declining to give the instruction requested by [Crittenden]." He argues further that the question whether certain conduct is constitutionally protected is "predominantly a question of law" for the court. He notes that no case holds that the specific instruction requested by Crittenden should be given to the jury. Further, the Attorney General maintains the stated exclusions of constitutionally protected activity in subdivisions (f) and (g) of section 646.9 do not add to or subtract from the "elements the jury must find under the statute." The Attorney General also asserts that the requested language was an incorrect statement of the law and confusing because the jurors were required to consider the entire context of Crittenden's conduct and statements and Crittenden could not "immunize himself" from prosecution by including in his communications "some expression of complaint about law enforcement." Finally, the Attorney General argues that, because there was sufficient evidence for Crittenden's conviction under independent review, "no additional prejudice analysis is needed or appropriate for the asserted failure to instruct on constitutionally protected activity."
We agree with the Attorney General that the trial court correctly declined to give the instruction proposed by Crittenden. The second sentence of Crittenden's proposed instruction (i.e., that speech "directed at exposing law enforcement corruption" is constitutionally protected) was incorrect and potentially confusing and misleading because it was too broad in scope. Under that instruction, the jurors could have reasonably concluded that speech falling within the recognized categories of expression that the state may regulate (see Alvarez, supra, 567 U.S. at pp. 717-718) could not be used to find Crittenden guilty of stalking. As relevant here, such a conclusion would have incorrectly precluded consideration of a true threat included within speech that Crittenden expressed with the design to expose corruption.
McPheeters is instructive. In that case, the Court of Appeal rejected defendant's argument that the trial court erred by not instructing the jury that defendant was not guilty of stalking if his conduct was a constitutionally protected activity. (McPheeters, supra, 218 Cal.App.4th at p. 141.) The instructional issue related to defendant's statements to a police officer about shooting the victim. The Court of Appeal found that defendant's statements were "speech beyond the pale of the First Amendment." (Ibid.) In another part of its opinion, the court also found that a credible threat against the victim could be implied from defendant's entire course of conduct rather than merely his statements to the police officer. (Id. at p. 139.)
Although Crittenden's proposed instruction was flawed and properly denied, the question remains whether, given the evidence, the trial court had a sua sponte duty to appropriately instruct on the exclusion of constitutionally protected activity. While it is clear that subdivisions (f) and (g) of section 646.9 exclude constitutionally protected activity from the reach of the statute, neither Crittenden nor the Attorney General cites a case that addresses whether such an exclusion is an element of the offense or an affirmative defense. Our independent research has not yielded any case discussing the question.
"When a statute first defines an offense in unconditional terms and then specifies an exception to its applicability, the exception is generally an affirmative defense to be raised and proved by the defendant." (People v. Lam (2004) 122 Cal.App.4th 1297, 1301.) Applying this general principle of statutory construction, we conclude the exclusion of constitutionally protected activity is a defense rather than an element of section 646.9.
We are not persuaded by the Attorney General's argument that Crittenden's principal defense—that his activities were constitutionally protected—was a question solely for the trial court in light of the facts here. Other jurisdictions have held that such questions may be matters for the jury. (See State v. Lessin (1993) 67 Ohio St.3d 487, 494 [620 N.E.2d 72, 78 ["hold[ing] that when a criminal offense charged arises from conduct that encompasses both a constitutionally protected act and an act that is not constitutionally protected, failure of the trial court to instruct the jury that it may not consider evidence of the constitutionally protected act as proof of the defendant's guilt is reversible error"]; see also United States v. Viefhaus (10th Cir. 1999) 168 F.3d 392, 397 [whether a defendant's statement is a true threat or protected speech is a question for the jury; if there is no question that defendant's speech is protected, the court may dismiss the charge as a matter of law].)
Much of Crittenden's conduct arguably involved expression about a public official on a matter of public concern, which " 'is "at the heart of the First Amendment's protection." ' " (See Snyder v. Phelps (2011) 562 U.S. 443, 451-453; see also Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 297 & fn. 7.) This circumstance separates Crittenden's case from one like McPheeters, where defendant, after being placed under arrest, cursed at a police officer, told the officer "he was 'just as fucked up as the justice system,' " said he intended to return to the victim's home upon release from jail, and twice said nothing could be done if he shot the victim. (McPheeters, supra, 218 Cal.App.4th at pp. 130-131.) Unlike the "[d]efendant's offhanded comment" about the justice system in McPheeters (id. at p. 141), Crittenden's conduct included several complaints to various public officials and news media about Carroll's alleged professional misconduct. We do not suggest that the trial court in a stalking case must instruct the jury on the exclusion of constitutionally protected activity any time a defendant asserts his or her conduct is protected. But given the nature and extent of the evidence supporting Crittenden's defense that his actions were constitutionally protected activity, we decide that the jury should have been specifically instructed on it.
Although we conclude that the trial court should have instructed the jury on Crittenden's defense that his activity was constitutionally protected, we conclude that its failure to do so was harmless beyond a reasonable doubt. (See People v. Aledamat (2019) 8 Cal.5th 1, 9 [discussing applicability of the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)]; cf. People v. Watt (2014) 229 Cal.App.4th 1215, 1219 [collecting cases noting that Watson applies to failure to instruct on a lesser included offense, mistake of fact, and self-defense].)
The California Supreme Court has not yet determined the test of prejudice for failure to instruct on an affirmative defense: the test of Chapman, supra, 386 U.S. at p. 24, which applies to federal constitutional error; or the test of People v. Watson (1956) 46 Cal.2d 818 (Watson), which applies to state law error. (Salas, supra, 37 Cal.4th at p. 984.)
The record here demonstrates that the People satisfied the elements of section 646.9 even when excluding consideration of evidence that might have been constitutionally protected speech directed at exposing law enforcement corruption. As described above, Crittenden's e-mails to Carroll and others on December 11 (the date of the charged crime) included the web banners with Carroll's home address and home security information. Crittenden's actions on that date amount to a harassing course of conduct, a credible threat, and true threats that are not subject to constitutional protection.
The evidence also supports the conclusion that Crittenden sent those e-mails with the intent to place Carroll in reasonable fear for his safety or the safety of his family and with the apparent ability to carry out the threat so as to cause Carroll to reasonably fear. Although Carroll testified extensively about Crittenden's pre-December 11 conduct, it was the dissemination of Carroll's home address and home security information contained in the December 11 e-mails that had a significant impact on him. For Carroll, Crittenden's actions with regard to the December 11 e-mail were "the straw that broke the camel's back," because they went beyond including "more of the same rhetoric which [Carroll] already received" from Crittenden. Moreover, although the prosecutor discussed Crittenden's conduct prior to December 11 and argued about the "[h]arassment turn[ing] into a threat," Crittenden's conduct on December 11 was a more prominent feature of her closing argument.
Furthermore, defense counsel argued to the jury that the People could not prove the harassment element of stalking beyond a reasonable doubt because Crittenden engaged in this behavior with the legitimate purpose of trying "to draw attention to what he saw as the misconduct of David Carroll and other entities within the government." Thus, Crittenden was able to present his defense to the jury, even though the jury was not specifically instructed on it. That the jurors found Crittenden guilty based on the evidence and in light of counsel's arguments demonstrates that they rejected the notion that Crittenden's conduct was protected speech that could not serve as a basis for finding him guilty.
On this record, we are convinced beyond a reasonable doubt that the failure to instruct about constitutionally protected activity did not contribute to the verdict. Crittenden would have been convicted of stalking even if the jury had been told that certain speech is constitutionally protected and Crittenden could not be found guilty if his conduct is constitutionally protected activity.
We turn next to Crittenden's two arguments concerning section 646.9's requirement that the threat be "made with the apparent ability to carry out the threat so as to cause" the target to reasonably fear for his safety or that of his family.
b. Apparent Ability to Cause the Target to Reasonably Fear
Crittenden asked the trial court to instruct that the credible threat element could not be satisfied with proof "of generalized fear about third parties and what they may or may not do." Based on this request, Crittenden argues on appeal that "the jury should have been informed that Carroll had to reasonably fear [the] third-parties [included on Crittenden's e-mails], and that they or [Crittenden] must have had the apparent ability to carry out the threats through those persons." He points out that the evidence only showed that the web banner listing Carroll's home address and depicting his home on a map was attached to e-mails Crittenden sent, and there was no evidence that Carroll's address was actually posted on the World Wide Web.
Citing George T., supra, 33 Cal.4th at p. 637, Crittenden claims that, by failing to instruct the jury as requested, "the trial court 'diminish[ed] the requirements that the communicator have the specific intent to convey a threat and that the threat be of such a nature as to convey a gravity of purpose and immediate prospect of the threat's execution.' " This failure left the jury "incorrectly informed on the 'principles of law relevant to the issues raised by the evidence' " and amounts to a constitutional violation through "misinstruction on the elements of the offense and the defense's theory of the case."
We are not persuaded that the instruction given was defective under the circumstances of this case or that the trial court erred by refusing Crittenden's pinpoint instruction as misleading and confusing. The definition of a credible threat in CALCRIM No. 1301 has been upheld as a correct statement of the law. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1196.) We discern no reason to depart from that conclusion. The language in CALCRIM No. 1301 explaining that a credible threat is " 'one that the maker of the threat appears to be able to carry out' "—along with the other language in the instruction—properly describes that element of section 646.9. (Ibid.; see also Halgren, supra, 52 Cal.App.4th at pp. 1228-1231 [rejecting a void-for-vagueness challenge to the definition of "credible threat"].) On its face, the language informed the jury about the requisite intent to place the target in reasonable fear and the apparent ability to carry out the threat so as to cause the target to reasonably fear for safety. (See Ibarra, at p. 1196 ["the crime focuses not on the definition of the conduct but on the perpetrator's 'intent to place the victim in reasonable fear' "].) CALCRIM No. 1301 as given sufficiently informed the jurors that they had to find Crittenden himself had an apparent ability to carry out the threat and cause reasonable fear. Accordingly, the instruction fully and fairly provided the general principles of law that were relevant and necessary for the jury's understanding of the case.
Regarding the potential for the target to reasonably fear the threat based on involvement of potential third parties, neither Crittenden nor the Attorney General cite any case that directly interprets section 646.9's requirement of an "apparent ability to carry out the threat" under those circumstances. When interpreting a statute, "our 'fundamental task . . . is to determine the Legislature's intent so as to effectuate the law's purpose. [Citation.]' [Citation.] 'Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning.' " (People v. Ruiz (2018) 4 Cal.5th 1100, 1105.) Moreover, "[u]nder general rules of statutory construction, we may consider the judicial interpretation of similar words used in another statute dealing with analogous subject matter." (Estate of Maron (1986) 183 Cal.App.3d 707, 713; see also Williams v. Superior Court (1993) 5 Cal.4th 337, 352.)
Although apparently no published decision has considered this question in the context of section 646.9, there is precedent interpreting similar "apparent ability" language in other statutes. In M.S., supra, 10 Cal.4th 698, the California Supreme Court construed section 422.6, a "hate crime" statute that includes an apparent ability element. "Under section 422.6, for a conviction based on speech alone, the prosecution must prove the speech itself threatened violence and the defendant had the 'apparent ability' to carry out the threat." (Id. at p. 714.) In upholding the statute against a First Amendment challenge, the Supreme Court concluded: "[W]hether section 422.6 is violated in a given case should not depend on the robustness or susceptibility of the victim. We therefore construe the phrase 'apparent ability' objectively, as implying the threat must be one that would reasonably tend to induce fear in the victim." (Id. at p. 715.)
The Supreme Court further concluded that section 422.6 "is not unconstitutional for lacking a requirement of immediacy or imminence." (M.S., supra, 10 Cal.4th at p. 714.) The Court explained: "As long as the threat reasonably appears to be a serious expression of intention to inflict bodily harm [citation], and its circumstances are such that there is a reasonable tendency to produce in the victim a fear the threat will be carried out [citation], the fact the threat may be contingent on some future event (e.g., 'If you don't move out of the neighborhood by Sunday, I'll kill you') does not cloak it in constitutional protection." (Ibid.)
We note that the California Supreme Court subsequently upheld another statute, section 140, subdivision (a), which prohibits "willfully threatening violence against a crime witness or victim, against a First Amendment challenge grounded on the lack of any apparent ability or immediacy requirement in the statute. (Lowery, supra, 52 Cal.4th at p. 428.) The Court explained: "Nothing the high court said [in Black, supra, 538 U.S. 343] suggests that speech threatening bodily harm is entitled to First Amendment protection, and thus is immune from criminal prosecution, absent proof that the speaker intended to inflict the threatened harm immediately, or had the apparent ability to do so." (Lowery, at p. 428.)
Furthermore, two cases cited by the Attorney General, People v. Avila (2013) 212 Cal.App.4th 819, 826-827 (Avila) and People v. Gudger (1994) 29 Cal.App.4th 310, 322, footnote 6—discuss the "apparent ability" element in section 76. The Attorney General relies on these cases to argue that that an apparent ability "does not mean present ability, or actual ability, or even personal ability to carry out the threat."
Section 76, subdivision (a), provides: "Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, or the staff, immediate family, or immediate family of the staff of any elected public official . . ., with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense." Subdivision (c)(1) of section 76 states further: " 'Apparent ability to carry out that threat' includes the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date." Subdivision (c)(5) of section 76 provides: " 'Threat' means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and 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 immediate family."
In Avila, the court considered whether an incarcerated prisoner who did not have a stated release date could nevertheless have the apparent ability to carry out a threat. The court reasoned that an apparent ability "could [] exist because the incarcerated person is known to have an accomplice acting on his or her behalf." (Avila, supra, 212 Cal.App.4th at p. 828.) The court explained, "where the defendant, though incarcerated, retains the apparent ability to make good on his or her threats by . . . persuading an accomplice to do the dirty work," liability can be established under section 76. (Ibid.; see also People v. Mendoza (1997) 59 Cal.App.4th 1333, 1341 (Mendoza) [holding under section 422 that "[a] rational juror could reasonably find a threat to bring a person to the attention of a criminal street gang as someone who has 'ratted' on a fellow gang member presents a serious danger of death or great bodily injury"].)
In our view, based on the language of section 646.9 and the cases interpreting similar statutes, the apparent ability element can be satisfied with evidence demonstrating that the maker of the threat appeared to have the ability to carry out the threat he made and cause reasonable fear, either through potential action by himself or through action by others. Nevertheless, a " 'credible threat' " within the meaning of section 646.9 also requires the prosecution to prove that the perpetrator's actions caused the "target of the threat to reasonably fear for his or her safety." (§ 646.9, subd. (g).) We must therefore determine whether the trial court erred by refusing to instruct the jury, using the language requested by Crittenden, more specifically about its consideration of reasonable fear based on the potential for third-party action, rather than solely on potential actions taken by Crittenden.
We note, in addition, that section 646.9, subdivision (g), says a threat-maker's "present incarceration" "shall not be a bar to prosecution under this section." (§ 646.9, subd. (g).) This subdivision further reinforces our conclusion that the apparent ability element can be satisfied through the potential actions of others.
To answer this question we focus on the language Crittenden actually requested. (See Moon, supra, 37 Cal.4th at pp. 30-32.) We agree with the trial court that instructing the jurors that "the [credible] threat cannot consist of generalized fear about third parties and what they may or may not do" could have confused or misled the jurors. As we have explained, the apparent ability component of the credible threat element is broader than Crittenden's language suggests, in that it is an objective standard tied to whether the threat "would reasonably tend to induce fear in the victim." (M.S., supra, 10 Cal.4th at p. 715; see also id. at pp. 715-716 ["Both 'apparent ability to carry out a threat' and 'having a reasonable tendency to induce fear in a victim' are essentially two aspects of the same idea."].) Under the statute, the potential for third-party involvement related to the threat-maker's ability to carry out the threat can be a source of the target's reasonable fear for her or his safety.
Crittenden's proposed instruction, through its language instructing that a conviction could not be based on "generalized fear," would have conflicted with this standard and incorrectly narrowed the jury's consideration of Carroll's fear about third parties and what they might do as a result of Crittenden's conduct. In essence, the proposed language would have told the jurors that a threat-maker's seeming ability to carry out a threat by involving others in execution of the threatened conduct could not fulfill the "reasonable fear" element of section 646.9. For the reasons we have explained, we do not agree that this is an accurate statement of the law. A trial court can refuse a proffered instruction that incorrectly states the law. (People v. Peoples (2016) 62 Cal.4th 718, 768.) Here, the trial court correctly concluded that Crittenden's pinpoint instruction was misleading and confusing and properly declined to give it.
We also are not persuaded by Crittenden's argument that the trial court erred when it answered the jury's question about CALCRIM No. 1301 during deliberations. Crittenden maintains that "the import of the jury's question was the reasonableness of the threat posed by third-parties as perceived by Carroll." He asserts the trial court "incorrectly framed" the issue as whether a third party could carry out the threat and further erred by instructing that a credible threat can include "encouraging" a third party to carry it out. Crittenden claims that "[i]n the absence of express threats or violence, the incomplete answer to the jury's question relieved the prosecution of its burden to prove that any threat posed by [Crittenden] via third-parties was credible."
Recall, the jury asked: "Re: CALCRIM 1301. In determining credible threat, does the 'maker' of the threat have to appear to be able to carry it out himself? Or can it include the maker of the threat inciting a 3rd party to carry it out?"
The trial court answered: "The maker of the threat must appear to be able to carry it out. However, the credible threat can also include encouraging a 3rd party to carry it out."
We conclude that the trial court did not err when it answered the jury's question. The trial court appropriately reiterated the relevant language in CALCRIM No. 1301 about the requirement that Crittenden, as the maker of the threat, had to have made it with the apparent ability to carry it out. (§ 646.9, subds. (a), (g).) As for the second sentence of the trial court's answer, the language accords with a correct interpretation of the statute. As explained above, the maker's apparent ability to carry out a threat so as to cause reasonable fear can rest on the possibility that a third party would be persuaded to act on the threat. (See Avila, supra, 212 Cal.App.4th at p. 828; Mendoza, supra, 59 Cal.App.4th at p. 1341.) Further, that the trial court used the word "encouraging," as compared to "inciting"—which the jury used in its question—does not amount to error here. In this context, encouraging and inciting are synonymous. (Black's Law Dict. (10th ed. 2014) p. 644, col. 1 [encourage means "to incite to action"].)
For these reasons, defense counsel's argument that a credible threat cannot be "read [] to allow the threat to be one that can be acted out by a third party" was flawed, and his recommended "no" answer to the second part of the jury's question was incorrect. Moreover, defense counsel did not ask for any additional instruction in response to the question. So, to the extent Crittenden now argues that the trial court's answer was incomplete and should have included further instruction, that argument is forfeited. (See People v. Davis (2009) 46 Cal.4th 539, 616-617.)
C. Fines, Fees, and Assessments
Relying on Dueñas, supra, 30 Cal.App.5th 1157, Crittenden asks us to remand this case for a hearing on his ability to pay the restitution fines, fees, and assessments imposed by the trial court. He asserts that a hearing is required under due process principles and the fines, fees, and assessments were "excessively cruel, punitive measures in light of his indigence." He acknowledges that his defense counsel did not object at his sentencing on these grounds, but argues that he did not forfeit this claim because the trial court made a legal error and any objection would have been futile.
The Attorney General responds that the restitution fine imposed here is not unconstitutionally excessive, and neither the restitution fine nor the fees and assessments were imposed in violation of due process. The Attorney General specifically argues that the imposition of the minimum restitution fine without consideration of an ability to pay survives rational basis review. Further, the Attorney General asserts that, although due process requires an ability-to-pay hearing, upon request before imposition of nonpunitive fees and assessments, the lack of a hearing is harmless here because there is nothing in the record to indicate that Crittenden did not have the present ability to pay the relatively small amount imposed.
At Crittenden's sentencing, the trial court imposed the following fines, fees, and assessments: on count 1, a restitution fine of $300 (§ 1202.4, subd. (b)), a $300 parole revocation restitution fine (which was suspended) (§ 1202.45), a court operations assessment of $40 (§ 1465.8), a criminal conviction assessment of $30 (Gov. Code, § 70373), and a criminal justice administration fee of $129.75 (Gov. Code, §§ 29550, 29550.1, 29550.2); on count 2, a court operations assessment of $40 (§ 1465.8) and a criminal conviction assessment of $30 (Gov. Code, § 70373); and on count 5, a restitution fine of $150 plus 10 percent administrative fee (§ 1202.4), a court operations assessment of $40 (§ 1465.8), and a criminal conviction assessment fee of $30 (Gov. Code, § 70373). We note that, although the trial court imposed the $150 restitution fine on count 5 when it orally pronounced judgment on September 8, 2017, neither the sentencing minute order nor the abstract of judgment reflects its imposition.
We first address the propriety of the $150 restitution fine imposed pursuant to section 1202.4 on count 5. The Attorney General maintains that the trial court erred by including separate restitution fines on counts 1 and 5 and recommends that we strike the $150 restitution fine. Crittenden joins this argument in his reply brief and in a supplemental opening brief. We agree with the parties that the trial court should not have imposed the restitution fine on count 5. (See People v. Sencion (2012) 211 Cal.App.4th 480, 483.) Accordingly, we modify the oral pronouncement of judgment to strike the $150 restitution plus 10 percent administrative fee imposed by the trial court on count 5.
Because we reach the merits of this issue, we need not address Crittenden's alternative claim that his defense counsel was constitutionally ineffective for failing to object to the restitution fine on count 5.
Turning to Crittenden's argument that a hearing on his ability to pay the fines, fees, and assessments is required, we assume arguendo that Crittenden's failure to object on this ground does not forfeit his appellate claim. Nevertheless, we reject Crittenden's request for a hearing to assess his ability to pay.
Panels of this court and other Courts of Appeal have reached differing conclusions on whether Dueñas was correctly decided, and the issue is pending before the California Supreme Court. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844 ; People v. Hicks (2019) 40 Cal.App.5th 320, 325-329, review granted Nov. 26, 2019, S258946.) For the reasons set out in opinions by other panels of this court, we conclude that Dueñas was wrongly decided. (See, e.g., People v. Adams (2020) 44 Cal.App.5th 828, 831-832; People v. Petri (2020) 45 Cal.App.5th 82, 92.) Further, we reject Crittenden's cursory argument that the restitution fine, fees, and assessments are excessive under the Eighth Amendment. Crittenden has not demonstrated that the aggregate amount imposed (approximately $640) is grossly disproportionate to his level of culpability and the harm he caused, even assuming the validity of his assertion of indigency. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1058; People v. Aviles (2019) 39 Cal.App.5th 1055, 1072.)
The Supreme Court granted review of Kopp limited to the following issues: "(1) Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding defendant's inability to pay?"
III. DISPOSITION
The oral pronouncement of judgment is modified to strike the $150 restitution plus the 10 percent administrative fee imposed on count 5. As modified, the judgment is affirmed.
/s/_________
Danner, J.
WE CONCUR:
/s/_________
Elia, Acting P.J.
/s/_________
Grover, J.