Opinion
F040583
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. CHARLES MAHLER, Defendant and Appellant.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, R. Todd Marshall and Netania E. Melamed Moore, Deputy Attorneys General, for Plaintiff and Respondent.
Before Dibiaso, Acting P.J., Buckley, J. and Cornell, J.
Charles Mahler appeals his convictions of making criminal threats and stalking and the imposition of an overbroad condition of probation. We will reverse and remand his conviction of making criminal threats, and will modify the condition of probation. We will affirm his conviction of stalking.
PROCEDURAL SUMMARY
On January 9, 2002, Mahler was charged in a three-count information with making criminal threats, in felony violation of Penal Code section 422 (count 1); stalking, in felony violation of section 646.9, subdivision (a) (count 2); and misdemeanor vandalism, in violation of section 594, subdivision (a) (count 3).
All further statutory references are to the Penal Code unless otherwise indicated.
On April 11, 2002, a jury found Mahler guilty of making criminal threats and of stalking. On May 9, 2002, imposition of sentence was suspended and Mahler was admitted to three years felony probation, conditioned upon spending 365 days in custody, with time credits of 226 days. Various other terms and conditions of probation also were imposed, including that Mahler not associate with persons who use or possess drugs or narcotics.
Count 3 was dismissed pursuant to a stipulation between the parties.
FACTUAL SUMMARY
Mahler worked at Cal-Tec Construction breaking glass and cleaning up the warehouse. Mahler, at one point, also was a telemarketer working in the telemarketing office located inside of Cal-Tecs warehouse.
The victim, Rita Tucker, began working as a telemarketer for Cal-Tec in October of 2000. Tuckers work hours were from 4:00 p.m. until 7:30 or 8:00 p.m., four days per week. Telemarketing was conducted from a separate office located inside the warehouse.
A few months after Tucker began working at Cal-Tec, Mahler began speaking to her, either in the telemarketing office or in the warehouse where she would take her break. Mahler would tell her he liked the way she looked, he liked her outfit, or that she smelled good. Mahler also told her she looked like Madonna or reminded him of Elizabeth Taylor. When Mahler would speak to her, he would "get real close," to within a foot of her, and Tucker would take a few steps back. Tucker noticed that he smelled as if he had not showered for days and had a strong odor of alcohol on his breath.
These types of comments by Mahler went on for several months. Tucker reported Mahlers comments to the owner of the company, Ted Williams, and to the telemarketing managers, Mike Ryan and Dan Novak. Novak was the manager before Ryan.
Five or six months prior to December 10, 2001, however, the content of Mahlers comments to her changed. In August of 2001, while Tucker was in the warehouse, Mahler told her that if she were not married he would rape her. Tucker felt "really terrified. Humiliated. Embarrassed." On yet another occasion, Mahler said "he wanted to lick [her] pussy." On still yet another occasion, Mahler again said he wanted to rape her.
Whenever Mahler would make these statements to her, she would tell her coworkers and the manager what Mahler had said. At one point, she told the owner as well because she was "really scared." On cross-examination Tucker testified Mahler, on at least two occasions, said she "smelled like tuna." These comments made Tucker feel really uncomfortable and she would back away from Mahler in fear.
In the summer of 2001, and after Tucker had voiced complaints about Mahler, she came to work and found him working as a telemarketer in the cubicle next to hers. Mahler had a handwritten sign up in his cubicle that read "for a good time, see Rita on stage in Vegas." Another sign, which appeared to have been authored by Mahler, was by the coffee maker in the telemarketing office. Tucker told Novak about the signs and witnessed him take down the sign from next to the coffee maker. Novak, however, did not remove the sign from Mahlers cubicle.
On occasion Mahler would enter her cubicle and give her "gifts," which appeared to be something he had retrieved from the trash. She would accept his gifts, thanking him and then throwing them away after he left her cubicle.
On November 20, 2001, while Tucker was training another woman, Mahler entered her cubicle. Tucker was standing facing the entry to the cubicle with her back to her desk. Mahler entered her cubicle, stood right in front of her, and then, without physically touching her, bent down putting his head between her legs. Mahler mumbled something Tucker could not understand. "And ... when he brought his head back up, he had drool coming down either side of his mouth." Tucker screamed for help and Dwayne Cunningham and another male employee came to her aid. Cunningham physically had to remove Mahler from her cubicle. Tucker was very upset and cried after Mahler was removed and immediately reported this incident. There were at least five other occasions where Mahler had to be removed physically from her cubicle.
Sometime prior to November 20, 2001, as Tucker was walking into work, Mahler rushed up to her saying, "All day long Ive been breaking glass and thinking of your fucking face." Tucker, who was scared and upset, ran into the telemarketing office and told Ryan what had just happened. Ryan went out and told Mahler he had to leave for the day. Each time Tucker would complain about Mahlers conduct, Mahler would be told to leave "for the day" or for a "couple hours" or "until [he] sobered up a little bit."
On December 10, 2001, Tucker came into work around 3:30 p.m. As she entered the warehouse through the roll-up door, she heard Mahlers voice saying "you got me in trouble again." Tucker looked over and saw Mahler at his desk, which was next to the roll-up door. Tucker continued walking toward the door to the telemarketing office, telling Mahler to leave her alone and not speak to her. Mahler got up from his desk and began walking around in a circle with a crazed look on his face; Mahler, who was enraged, was saying, "Im going to kill you, you fucking bitch." "Then he started circling and it was like nothing Ive ever seen before. Ive never seen a human being besides on TV act, you know, like they werent in their right mind and he was just going in circles, just going in circles."
Tucker became alarmed at Mahlers conduct and began walking backward toward the telemarketing office door. Mahler continued walking in circles saying, "Im going to kill you, you stupid fucking Mexican bitch." Mahler stopped walking in circles and began moving toward Tucker.
By that time Tucker had reached the door to the telemarketing office, opening the door with her back to the door. Tucker backed into the office and yelled for Oscar Garza to help her. Garza got in between Tucker and Mahler. Mahler was still moving toward Tucker, repeating that he was going to kill her and raising his balled fist up in the air. To Garza, it looked as though Mahler was going to attack her. Garza heard Mahler yelling he was going to kill her. Tucker was terrified and feared Mahler was going to kill her. Mahler began pushing on Garza, and Garza started pushing back against Mahler. Garza kept telling Mahler to leave. The pushing match between Garza and Mahler lasted for "a couple minutes" with Mahler "focusing on [Tucker] like he wanted to get her."
Garza believed that had he not been there, Mahler would have harmed Tucker. Garza did not recall that Tucker was saying anything to, or yelling at, Mahler during this time. Nor could he ever recall seeing Tucker attempt to provoke Mahler. Garza described Tucker as looking "very scared, frightened" when she called his name. Tucker called Ryan and the police from inside the telemarketing office, telling Ryan that "Chucks nutting it again." "Hes going crazy and hes come at me." "Hes going to kill me and Im scared to death. Im scared for my life." Ryan told her he would be right there.
Garza recalled that in the past he had overheard Mahler say something to Tucker "about going to bed. Im not sure exactly. But Id like to take you to bed or something like that. In that way." Garza confirmed he was aware of a "couple of times" Mahler had been told to leave Tuckers presence. He recalled that prior to the incident on December 10, 2001, Mahler, who was drunk, approached Tucker in the telemarketing office and he overheard her say "leave me alone because Im working and you [are not] supposed to be in here." Garza knew that Mahler had been told to stay out of the telemarketing office.
On December 10, 2001, Cunningham, the current canvass manager for Cal-Tec, heard yelling from the warehouse while he was in the bathroom of the telemarketing office. Cunningham approached the door of the telemarketing office and heard Tucker yelling at Mahler through the partially opened door, "I11 kill you, motherfucker." Mahler responded, "Fuck you, bitch."
Shortly after Cunningham arrived at the door, Mahler went out into the warehouse. While Cunningham was speaking with Garza and Tucker, he heard a "big bang," and looked through the door out into the warehouse and saw that the microwave from Mahlers desk was on the floor. Cunningham testified that Tuckers demeanor was aggressive and she did not appear to be afraid of Mahler: "I mean it was like two dogs at each other at the door."
When the police arrived, Cunningham testified that Tucker was yelling for the police to arrest Mahler and was cursing at him. Cunningham felt that Tucker had been provoking Mahler. When asked if he remembered telling the police that he believed Mahler would have assaulted Tucker, Cunningham could not remember but did not believe the incident had "escalated that far." Similarly, Cunningham did not remember telling the police that he believed that had Mahler ever caught Tucker alone in the building he would have raped or assaulted her.
Ryan, the telemarketing manager, had worked for Cal-Tec approximately seven or eight months, beginning in August of 2001. In approximately December of 2000, Ryan began running his own business from Cal-Tecs telemarketing office. Ryan described Mahler and Tucker as friends. He saw them talking to each other constantly while working or when she took cigarette breaks in the warehouse. He had not heard any complaints from Tucker while he was working out of the telemarketing office. Tucker did complain about Mahler four or five times, saying he was bothering her "or something like that," but this was in the "last few months" before December 10, 2001, and when Ryan was the manager.
When Tucker would complain it was to say Mahler was bothering her and saying weird things neither she nor Ryan could understand. Ryan said the only thing he knew was that Mahler had said she looked like Madonna. He never observed any physical contact between Mahler and Tucker. When he asked Tucker if she wanted him to get rid of Mahler, approximately one month before December 10, 2001, she said no. It was at this point the owner told Mahler not to be at Cal-Tec when Tucker came to work because they were always getting into arguments and she was frequently complaining about him bothering her. Tucker was supposed to arrive at work at 3:30 p.m.; Mahler was supposed to be gone by that time. This had been the procedure for approximately two months prior to December 10, 2001.
Ryan was on his lunch break when Tucker called him on December 10, 2001. According to Ryan, her call came around 3:00 p.m., which was prior to the time she was supposed to be there. Ryan told her he would be right there. When she called him, Tucker told him that Mahler had "said obscenities liked the `F word or something like [that] to her, from what I understood." Tucker did not tell him she was afraid. When he arrived, Tucker was in the warehouse by the telemarketing office and was "very angry," was not crying and was not hiding behind anyone.
When Ryan arrived, Mahler was at the neighboring business, Jet Mold. Ryan went inside the warehouse and spoke with Tucker, Garza and Cunningham. Ryan was tired of "baby-sitting these people" and wanted the matter resolved so he could just get back to work and so "we could get to producing." Ryan called the owner and told him what had happened. The owner told Ryan to fire Mahler.
Mahler returned to the warehouse and Ryan told him he was fired. Mahler became angry, picked up the microwave from his desk, threw it and stormed out of warehouse, walking down the street. During this time, according to Ryan, Tucker handed him her "little knife," but he could not recall whether he had told the officers that Tucker had a knife. Tucker was shouting at Mahler and did not appear to be in fear.
Approximately 15 or 20 minutes later, Mahler returned and retrieved some things from his desk. Mahler walked out of the warehouse and the owner of Jet Mold and one of his employees told Mahler to stay there as the police were coming. When Mahler continued walking away, they physically detained Mahler until the police arrived. Tucker was yelling for them to "`kick his ass ... things of that nature." Again, she did not appear to be afraid of Mahler. Ryan testified that her demeanor changed dramatically once the officers arrived: "She went from being very — very in your face, very dominant to being very fearful and like, you know, just changed 100 percent from an aggressor to a victim basically."
Ryan testified that Tucker had never said anything to him about Mahler making a statement that if she were not married he would rape her. Tucker, according to Ryan, complained about others at work besides Mahler: "Oh, she was just really — she didnt like people to tell her what to do. She wrote her own ticket kind of thing." None of the other telemarketers had complained to Ryan about Mahler. Ryan, who had no ownership interest in Cal-Tec, acknowledged he was aware that Tucker had instituted a lawsuit against Cal-Tec and that Cal-Tecs attorney was sitting in the audience. In Ryans opinion, Mahler had been in jail for "three months for no reason."
When Fresno Police Officer Michael Neveu arrived at Cal-Tec around 4:40 p.m. on December 10, 2001, two other officers were already on the scene and were taking Mahler into custody. Since Neveu was the primary unit dispatched to the scene, he assumed the duties of investigating officer. Upon entering the warehouse, Neveu noted there was a pile of debris around the desk just inside the warehouse, including a damaged microwave. Neveu interviewed Tucker, Garza, Cunningham and Ryan at Cal-Tec. Mahler was later interviewed at the police substation.
Neveu described Tucker as being obviously upset, crying and very nervous. She appeared to be barely holding it together. She was very distracted by anybody walking into the bay or anybody moving around in the bay. It was very difficult to interview her because she kept being distracted by everybody that was walking in or moving around. Neveu took her into the telemarketing office to try and calm her down. During his interview, Neveu repeatedly had to calm her down and assure her she was safe. Tucker did calm down somewhat once they moved into the telemarketing office. When anyone would enter the telemarketing office through the closed door, however, "she would jump and her eyes would get really wide and she obviously was having what I would characterize as a fear reaction."
Neveu indicated that Cunningham had told him he heard Mahler shouting at Tucker "`fuck you, you bitch. I11 kill you." Mr. Cunnigham told him he heard this when he approached the door to the telemarketing office and that Garza was physically keeping Mahler from coming through the door. Cunningham believed that had Garza not kept Mahler away from Tucker, he would have assaulted Tucker.
Cunningham also corroborated Tuckers version of the event on November 20, 2001, and indicated that he physically had to remove Mahler from Tuckers cubicle. Cunningham also told him that he had overheard Mahler saying to Tucker he wanted to rape her, and that he believed if Mahler ever caught her alone he might rape or assault her. Neveu disputed Cunninghams testimony that he had overheard Tucker yelling, "I11 kill you" at Mahler, indicating Cunningham had never told him that during their interview.
Neveus testimony concerning his interview with Ryan contradicted some of Ryans testimony. In the interview Ryan acknowledged that Tucker and others had reported Mahlers confrontations with Tucker. Ryan told Neveu others had told him that Mahler had left notes around the office. The "notes had described something about being Madonna or Elizabeth Taylor and she should be a showgirl in Las Vegas, et cetera."
According to Neveu, Ryan did not tell him that he had not understood what Mahler had been saying to Tucker: "He told me that they had told him that Mahler had said the other things that Tucker and Garza testified to, that he had been told by them that Mahler had made comments like he wanted to rape her or that if she wasnt married, hed rape her. And that he was also told that that day Mahler had threatened to kill her and he wanted to press charges against Mahler himself." Similarly, Ryan told Neveu that while he had not personally witnessed any incidents where Mahler had been physically restrained, he had been told about them after they had occurred.
Ryan wanted to press charges for vandalism for Mahlers destruction of the microwave.
Neveu was never advised by any of the witnesses, including Ryan, that Tucker had been armed with a knife. Had he been so advised, he would have seized it as possible evidence in the case.
Tucker, called in the defense case, admitted she had a knife on her person that day but denied handing it to anyone.
Mahler was interviewed after waiving his Miranda rights. Mahler seemed intoxicated, but not to the point where he was unable to understand the rights he was relinquishing. Mahler had been working at Cal-Tec for approximately a year and a half. He knew Tucker from her employment there. Mahler said that she did not like him and admitted to giving her gifts but could not remember what they were. Mahler thought she looked like Madonna or Elizabeth Taylor. Mahler admitted he had been told by the owner to stay away from Tucker.
Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
Mahler denied the incident of November 20, 2001, but told Neveu "she was a lady and that [he] should just go on whatever she said." Mahler remembered Tucker being upset on November 20, 2001, but he did not know why and that he had been "kicked out for the day."
Mahler admitted he had gotten angry with Tucker on December 10, 2001, because she had come in early and "`she might have looked at me strangely." Mahler denied raising a balled fist up in the air, but said he might have "gotten scared" and put his hands up in the air. Mahler said he might have called Tucker a Mexican bitch "cause Ive been surrounded by Mexicans for weeks." Mahler indicated that people with dark hair and women with brown hair who talk to him and who do not know his name upset him.
When their interview began, Mahler was very angry and upset: "He was at times raging when he would describe to me what had happened or his anger towards the victim." Later, Mahler told Neveu that if Tucker were not married he would date her because she was cute. By this time Mahlers demeanor had changed dramatically, going "from being very angry and raging to smiling and conversational, congenial."
Mahler admitted he had a drinking problem and loses control when he has been drinking. Mahler said that on December 10, 2001, he had drunk a half-pint to a pint of root beer schnapps just before lunchtime.
DISCUSSION
Mahler contends the trial court erred by not instructing the jury on the lesser included offenses of attempted criminal threats and attempted stalking. He also claims that the "non association" condition of probation is overbroad.
1. Instructions on Lesser Included Offenses
Obligation of the trial court
A trial court is required to instruct the jury sua sponte upon lesser included offenses where the evidence presented at trial raises a question as to whether all of the elements of the greater offense were present. If there is no evidence that the offense was anything less than that charged, there is no duty to instruct on a lesser included charge. This duty, assuming it exists, extends to those situations where the defendant either fails to request the instruction or expressly objects to the trial court instructing on a lesser included offense. (People v. Breverman (1998) 19 Cal.4th 142, 154-155, 960 P.2d 1094.)
The obligation to instruct the jury sua sponte is imposed upon the trial court to ensure that the jury is presented with the proper options in determining the level of culpability a particular defendant is responsible for, based upon the evidence presented at trial. Just as a defendant is not entitled to be convicted of a lesser crime in the absence of evidence to support such a conviction, the prosecution is not entitled to a conviction for a greater offense than that shown to have been committed by the evidence.
We examine the entire record to determine whether there was substantial evidence, which, if believed by a reasonable jury, could lead them to conclude that the lesser, rather than the greater, crime had been committed.
"As our prior decisions explain, the existence of `any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration by the jury. [Citations.] `Substantial evidence in this context is `"evidence from which a jury composed of reasonable [persons] could ... conclude[]" that the lesser offense, but not the greater, was committed. [Citations.]
"In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. [Citations.] Moreover, as we have noted, the sua sponte duty to instruct on lesser included offenses, unlike the duty to instruct on mere defenses, arises even against the defendants wishes, and regardless of the trial theories or tactics the defendant has actually pursued. Hence, substantial evidence to support instructions on a lesser included offense may exist even in the face of inconsistencies presented by the defense itself." (People v. Breverman, supra, 19 Cal.4th at pp. 162-163, fn. omitted.)
Criminal Threats
Section 422, criminal threats, is defined by five separate elements. To prove a violation of section 422, the prosecution had to establish that (1) Mahler "`willfully threatened to commit a crime which will result in death or great bodily injury to another person"; (2) Mahler made the threat "`with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out"; (3) the threat (which may be "`made verbally, in writing, or by means of an electronic communication device") was "`on its face and under the circumstances in which it [was] made, ... 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"; (4) the threat actually caused the person threatened "`to be in sustained fear for his or her own safety or for his or her immediate familys safety"; and (5) the threatened persons fear was "`reasonable" under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228, quoting Pen. Code, § 422.) People v. Toledo, supra, 26 Cal.4th 221 concluded there was an offense under California law of attempted criminal threats. (Id. at p. 226.) The Supreme Court provided examples of what would constitute the crime of attempted criminal threats, which could include evidence that a defendants written threat was intercepted prior to its delivery to the intended victim where the intended victim does not understand the oral threat or, as Maher argues here, the threat does not actually cause the victim to be in sustained fear for his or her safety. (Id. at p. 231.)
Section 422 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 familys safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."
CALJIC No. 9.94 (1999 rev.) (6th ed. 1996) given in Mahlers case, and as pertinent to our discussion, combines elements four and five: "The threatening statement caused the other person reasonably to be in sustained fear for her own safety." (Italics added.)
Mahlers dispute centers upon the fourth and fifth elements identified in People v. Toledo, supra, 26 Cal.4th 227-228, "causing that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety." ( § 422)
The victim testified that on December 10, 2001, Mahler said he was going to kill her, which is unquestionably a crime that might result in death or great bodily injury. The evidence of Mahlers intent can be inferred from his conduct and the surrounding circumstances, which included the raising of his fist and advancing toward the victim while stating he was going to kill her. The testimony clearly indicated that the threat communicated directly to the victim was unequivocal, unconditional and immediate. Tuckers testimony, and that of Garza, was evidence that Tucker was in sustained fear of her own safety. Under the circumstances, which include the prior interaction between Mahler and his victim, Tuckers fear that Mahler would actually cause harm to her person was reasonable.
Mahler contends, however, there was substantial evidence that Tuckers fear of him was feigned and thus a jury, given the alternative of convicting him of the lesser included offense of attempted criminal threats, reasonably could have convicted him of that offense. In support of his argument, Mahler points to the jurys questions to the trial court during its deliberations as to the term "sustained" and to testimony from Ryan and Cunningham regarding their personal observations of the victim. Here both Ryan and Cunningham, based upon their personal observations, testified Tucker did not appear to them to be in fear of Mahler.
Ryan testified that when he arrived at Cal-Tec, Tucker was not crying and was not hiding behind anyone but was very angry. Once the police arrived, however, her demeanor changed. "She went from being very — very in your face, very dominant to being very fearful and like, you know, just changed 100 percent from an aggressor to a victim basically."
Cunningham, who had been in the bathroom, heard yelling and went to see what was going on. He saw Tucker and Mahler yelling at each other. As he approached the door leading from the telemarketing office into the warehouse, he heard Tucker yelling, "` Ill kill you, motherfucker." Mahler responded, "`Fuck you, bitch." "She was aggressive. She wasnt afraid. I mean it was like two dogs at each other at the door." Cunningham believed Tucker was trying to provoke Mahler. Cunningham testified that after the incident Tucker said, "`I would stab him, but I was afraid Id get AIDS."
We conclude that the testimony of Ryan and Cunningham provides substantial evidence from which a jury reasonably could find that Tucker did not experience sustained fear. Thus, it was error for the trial court not to give the instruction on the lesser included offense of attempted criminal threat.
Now we must determine whether the error was harmless or the judgment of conviction must be reversed. We make this determination by applying the test announced in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243. (People v. Breverman, supra, 19 Cal.4th at p. 165.) This requires a review of the case to determine whether a miscarriage of justice occurred because of the error. "That a `miscarriage of justice should be declared only when the court, `after an examination of the entire cause, including the evidence, is of the `opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson, supra, at p. 836.) Additionally, any "error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." (People v. Koontz (2002) 27 Cal.4th 1041, 1085-1086 [harmless error in failing to instruct jury on manslaughter and unreasonable self-defense where jury found killing occurred during commission of robbery and in furtherance of that robbery].)
To resolve the issue, Mahler points to the jurys request for further definition of the term "sustained" as used in the instruction for criminal threats. The trial court, after discussing the request with counsel, informed the jury: " For the purposes of the term `sustained in Penal Code Section 422, specifically Element 5, `sustained means a period of time that extends beyond what is momentary, fleeting, or transitory." The trial court extracted this definition from the case of People v. Allen (1995) 33 Cal.App.4th 1149 at page 1156. The jury returned to its deliberations, eventually adjourning for the day.
Current CALJIC No. 9.94 (7th ed. 2003) contains this same definition.
The following morning, the jury sent a second request to the trial court:
"2. Please define `maliciously[.] [P] 3. What do I say to you, Your Honor, if we are `hung on one of the counts?! We only have guilty [and] not guilty verdicts. [P] 4. Please define `momentary, `fleeting, [and] `transitory as they apply to this case."
After discussing the requests with counsel, the trial court brought the jury into the courtroom. The trial court advised the jury that "maliciously" was defined in CALJIC No. 1.22 as meaning a "wish to vex, annoy, or injure another person or an intent to do a wrongful act." The foreperson indicated they had overlooked this instruction and that with the instruction and the trial courts rereading of that definition, the jurys question had been answered. The trial court next addressed the jurys request for definitions of "momentary," "fleeting" and "transitory," again relying upon People v. Allen, supra, 33 Cal.App.4th 1149 and Websters Ninth New Collegiate Dictionary, and provided the following response:
"[THE COURT]: Now those are words of ordinary meaning or ordinary meanings to be used in their commonly accepted senses. For further assistance, the word `momentary also means transitory, having a very brief life. The word `fleeting has a meaning of passing swiftly. `Transitory is of brief duration — of brief duration or temporary. So as I just stated to you, fleeting and momentary are basically synonyms. Very close to each other in any event. [P] Does that help at all?
"THE JURORS: Yes."
Next, the trial court addressed the question regarding what the jury was to do if it were hung. Without inquiring as to whether the division was for or against a guilty verdict, the trial court ascertained the jury was split 10 to 2. The trial court polled each individual juror as to whether they felt it was reasonably probable further deliberations would allow them to reach a unanimous verdict. The foreperson stated: "I believe the definitions you just gave me will help. I dont think were done." With the exception of one juror, who stated they were "not certain yet" and maybe they could reach a unanimous verdict, the remaining jurors indicated further deliberations would be fruitful. The trial court agreed and returned the jury to the jury room to continue its deliberations.
Just before noon, the jury advised the trial court it had reached verdicts. The jury recessed and returned at 1:30 p.m. for formal announcement of its verdicts. Both Mahler and the prosecution declined the trial courts invitation to have the jury polled.
The People argue that "if appellant was not guilty of criminally threatening Tucker because she did not sustain the requisite fear, then he was not guilty of the charged crime of criminal threats. The jury had the power to acquit him as charged." It is for just this precise reason, however, that a trial court must instruct sua sponte on a lesser included offense to avoid the all or nothing verdict, and further to provide the jury with an alternative to outright acquittal where they reasonably conclude the lesser rather than the greater offense actually was committed.
"The rules purpose is not simply to guarantee some plausible third choice between conviction of the charged offense or acquittal, but to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence." (People v. Breverman, supra, 19 Cal.4th at p. 161)
In light of the jurys requests for additional instructions on sustained fear, plus its rhetorical question about what would happen if it were hung on a charge, we must conclude that the failure to instruct on the lesser included offense of attempted criminal threats was not a harmless error. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Stalking
Mahler argues that, by parity of reasoning, a similar conclusion should be reached with respect to the crime of stalking. The People also rely upon their argument against such an instruction for the criminal threats charge. We agree with the Peoples conclusion, albeit for a much different reason.
We also agree with Mahlers interpretation of the holding of People v. Toledo, supra, 26 Cal.4th 221 and conclude that there does exist in this state the crime of attempted stalking. In similar fashion to the crime of attempted criminal threats, attempted stalking occurs where the victim was not reasonably in fear for their safety, or their immediate familys safety, or where the victim did not suffer substantial emotional distress as a result of the credible threat made by the defendant. (See People v. Toledo, supra, 26 Cal.4th at pp. 230-231; People v. Ewing (1999) 76 Cal.App.4th 199 [reversing stalking conviction due to insufficient evidence victim suffered substantial emotional distress].) Mahlers conviction here was predicated upon the prohibited conduct of harassment, as opposed to the prohibited repeated following conduct of the stalking statute.
First, we reject that portion of Mahlers argument that relies upon language from People v. Carron (1995) 37 Cal.App.4th 1230 at page 1238. He insists that Tucker reasonably must have been in fear of great bodily injury or death. While this at one time was a requisite finding, the statute was amended in 1993 removing the language from former subdivisions (a) and (e), relating to the "credible threat," which required the threat be against the life of, or a threat to cause great bodily injury to, a person. (See Stats. 1992, ch. 627, § 1, pp. 2771-2772; Stats. 1993, ch. 581, § 1, pp. 2876-2877.) The statute applicable to Mahlers charged conduct requires the "credible threat" be only to the safety of the person or the persons immediate family. (See Stats. 2000, ch. 669, § 1.)
Section 646.9 is defined by three separate elements. In order to convict Mahler, the prosecution had to prove he (1) willfully, maliciously, and repeatedly followed or harassed another person; (2) made a credible threat; and (3) intended to place that person in reasonable fear of their safety, or the safety of that persons immediate family. (CALJIC No. 9.16.1 (1999 rev.) (6th ed. 1995).) In addition, the evidence must show that the victim actually suffered substantial emotional distress ( § 646.9, subd. (e)), and that the credible threat caused the victim reasonably to be in fear of their safety. ( § 646.9, subd. (g).)
Section 646.9, as enacted at the time of Mahlers offense, and in pertinent part, stated:
"(a) Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year or by a fine of not more than one thousand dollars ($ 1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.
[P] ... [P]
"(e) For the purposes of this section, `harasses means 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. This course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.
"(f) For the purposes of this section, `course of conduct means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of `course of conduct.
"(g) For the purposes of this section, `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."
In People v. Ewing, supra, 76 Cal.App.4th 199, the Fourth District reversed the defendants conviction for stalking due to insufficiency of the evidence that the victim had actually suffered substantial emotional distress. The victim testified she feared the defendant and was afraid for the safety of herself and her children. The victims testimony as to her fear, however, was limited to the date she contacted police, and there was no testimony indicating she feared the defendant prior to that date. Further, the victims boyfriend testified the victim suffered sleepless nights and had joined a support group for battered women.
The appellate court concluded that this evidence was insufficient to show that the victim actually suffered substantial emotional distress, as there was no evidence of the severity, nature or extent of her emotional distress. (People v. Ewing, supra, 76 Cal.App.4th at pp. 211-212.) The Ewing court stated, "we can safely assume that the phrase [substantial emotional distress] means something more than everyday mental distress or upset. In other words, the phrase `substantial emotional distress entails a serious invasion of the victims mental tranquility." (Id. at p. 210.) The court went on to discuss the analogous tort concept of severe emotional distress, while recognizing the adjectives "severe" and "substantial" were not synonymous. (Ibid.)
Ewings conclusion as to the definition of substantial emotional distress, as used in the stalking statute, was derived from the case of Schild v. Rubin (1991) 232 Cal. App. 3d 755, 283 Cal. Rptr. 533, which involved the issuance of an injunction under Civil Code section 527.6. Civil Code section 527.6, subdivision (b), uses language identical to that of section 646.9, in so far as defining harassment, including the requirement the harassment caused the victim to suffer substantial emotional distress. "Where a statute is framed in language of an earlier enactment on the same or an analogous subject, and that enactment has been judicially construed, the Legislature is presumed to have adopted that construction. [Citations.]" (People v. Harrison (1989) 48 Cal.3d 321, 329, 256 Cal. Rptr. 401, 768 P.2d 1078.)
The court in Schild v. Rubin, supra, 232 Cal. App. 3d 755 concluded that substantial emotional distress can be equated with the tort concept of severe emotional distress, stating:
"However, in the analogous context of the tort of intentional infliction of emotional distress, the similar phrase `severe emotional distress means highly unpleasant mental suffering or anguish `from socially unacceptable conduct [citation], which entails such intense, enduring and nontrivial emotional distress that `no reasonable [person] in a civilized society should be expected to endure it. [Citations.]" (Schild v. Rubin, supra, 232 Cal. App. 3d at pp. 762-763; accord, People v. Ewing, supra, 76 Cal.App.4th at p. 211, italics added.)
These authorities cause us to disagree with Mahlers argument that there was substantial evidence as to whether Tucker actually suffered substantial emotional distress or reasonably feared for her safety as a result of Mahlers conduct. In contrast to Ryans and Cunninghams testimony of their observations of the events of December 10, 2001, their testimony with respect to the conduct of Mahler prior to that date was not as substantial.
Ryan acknowledged Tucker had complained at least four or five times about Mahler bothering her and had said she did not want him around her. Similarly, Ryan testified that her complaints concerned statements made by Mahler, some of which were unintelligible. He did acknowledge at least one reference to her similarity to Madonna. He testified he had not been told that Mahler had made any statement to Tucker about raping her if she were not married. He also denied that Tucker had ever told him about any signs that might have been posted by Mahler. It must be remembered, however, that during that period of time, Ryan was not a Cal-Tec employee and was only operating his own business from within the telemarketing office.
Cunningham testified that verbal confrontations between Mahler and Tucker were a "constant type thing." He had not seen any of these confrontations inside the telemarketing office. He acknowledged that on November 20, 2001, the two were involved in a confrontation and the police were called out to the business. He could not recall, however, where it took place as he had not witnessed the actual confrontation. He did tell Mahler to leave, saying, "Rita Jo is going to call the police on you. You should just leave, Chuck." He denied ever having to intervene physically to remove Mahler from the telemarketing office or the warehouse. Similarly, Cunningham did not recall Mahler making any sexual comments or innuendoes to Tucker. Tucker never told him that Mahler was harassing her, nor had she mentioned any drawings being posted. Cunningham denied ever telling any officer that he believed that had Mahler ever found Tucker alone, he would have assaulted her or would have raped her.
While Neveus testimony contradicted that of both Ryan and Cunningham in many respects as to what they had told him during his investigation on December 10, 2001, Neveu testified that Cunningham had virtually corroborated Tuckers version of the incident of November 20, 2001, including that he had to remove Mahler physically from Tuckers cubicle in the telemarketing office. Neveu also testified that Cunningham had told him he had heard Mahler tell Tucker he "wanted to rape her."
While the prosecutor relied upon the events of December 10, 2001, as part of his theory of Mahlers guilt for stalking, there was substantial evidence of Mahlers conduct prior to that date which supports his conviction, even absent his threats made on December 10, 2001, to kill the victim.
The evidence showed that Mahler, over a period of several months, continually bothered and harassed Tucker. His comments to her that he wanted to rape her or that "All day long Ive been breaking glass and thinking of your fucking face," plus his conduct in entering her cubicle and simulating a sexual act, constituted a credible threat to her safety. As to each of these incidents, Tucker testified she was upset, scared, humiliated and embarrassed. Mahlers comments to her made her recoil in fear and made her very uncomfortable. Tuckers testimony as to her emotional state clearly established she actually suffered substantial emotional distress and reasonably feared for her safety. We conclude that the evidence clearly established Tucker actually suffered "`from socially unacceptable conduct [citation], which entails such intense, enduring and nontrivial emotional distress that `no reasonable [person] in a civilized society should be expected to endure it. [Citations.]" (Schild v. Rubin, supra, 232 Cal. App. 3d at pp. 762-763; accord, People v. Ewing, supra, 76 Cal.App.4th at p. 211, italics added.)
In contrast to the incident of December 10, 2001, there was scant, if any, evidence to dispute Tuckers reactions to these events. "The existence of any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration by the jury. [Citations.]" (People v. Breverman, supra, 19 Cal.4th at p. 162.) Under these facts, an instruction on the lesser included offense of attempted stalking was not required to be given sua sponte.
II. Non-association Condition of Probation Must Be Modified
Mahler contends, and the People concede, that the condition of probation imposed by the trial court requiring that Mahler "not ... associate with those who use or possess any dangerous drugs or narcotics" is unconstitutionally overbroad. Both parties agree the condition should be modified to prohibit Mahler from associating with those persons he knows to be in possession of, or using, any dangerous drugs or narcotics.
We agree and will order that the condition of probation be modified accordingly. (See People v. Lopez (1998) 66 Cal.App.4th 615, 628; People v. Garcia (1993) 19 Cal.App.4th 97, 102.)
DISPOSITION
The judgment of conviction on count 2, stalking, is affirmed. The judgment of conviction on count 1, criminal threats, is reversed and the matter is remanded to the trial court. The trial court shall dismiss count 1 within 30 days of remand if the People have not initiated proceedings to retry Mahler on that count. The trial court shall modify the pertinent condition of Mahlers probation to prohibiting his association with those persons he knows to be in possession of, or using, any dangerous drugs or narcotics.