Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F10593
RAYE, J.Defendant James O’Rourke was a pretty scary neighbor. Four people living on his street testified he often shined a high intensity beam flashlight into their windows, yelled and cursed at them, gave them the middle finger, displayed a gun, threatened them, ran through their yard, sprayed one with a hose, and vandalized their property. A jury convicted him of four counts of stalking -- one count for each victim. (Pen. Code, § 646.9, subd. (a).) On appeal, he contends the trial court committed reversible error by failing to give a unanimity instruction. (CALCRIM No. 3500.) We agree with the courts in the Second and Fourth Appellate Districts that a unanimity instruction is unnecessary where, as here, the stalking statute contemplates a continuing course of conduct. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292 (Jantz); People v. Zavala (2005) 130 Cal.App.4th 758, 768 (Zavala).) We affirm.
All further statutory references are to the Penal Code.
FACTS
We need not elaborate on the facts beyond those recited above. There is no dispute that defendant engaged in a series of acts targeted at four different neighbors, although he testified and gave a different interpretation of his actions. Because the question before us is legal, not factual, we accept the neighbors’ testimony that he harassed them over a period of time.
DISCUSSION
Section 646.9 provides, in pertinent part: “(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison. [¶] . . . [¶]
“(e) For the purposes of this section, ‘harasses’ means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.
“(f) For the purposes of this section, ‘course of conduct’ means two or more acts occurring 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.’”
It is true that “[w]here the jury receives evidence of more than one factual basis for a conviction, the prosecution must select one act to prove the offense, or the court must instruct the jury that it must unanimously agree on one particular act as the offense.” (Jantz, supra, 137 Cal.App.4th at p. 1292.) Defendant acknowledges that a unanimity instruction is not required, however, where the statutory offense contemplates a continuous course of conduct by a series of acts over a period of time. (People v. Diedrich (1982) 31 Cal.3d 263, 281-282; People v. Ewing (1977) 72 Cal.App.3d 714, 717 (Ewing).) But unlike the statute involved in Ewing, defendant asserts that the stalking statute defines harassment as “two or more acts occurring over a period of time.” Because the statute specifies that two or more acts constitute harassment, defendant argues the jurors must agree on those two acts. The continuing course of conduct exception to the unanimity instruction, in defendant’s view, does not apply because the statute requires the commission of two acts. We disagree.
The courts in both Jantz and Zavala rejected the argument that a unanimity instruction must be given sua sponte in a stalking case. As the court wrote in Zavala, “The statutory offense here is self-defined to require a course of conduct. (§ 646.9, subd. (e) [‘“harasses” means engages in a knowing and willful course of conduct’].) Because Zavala was charged with a ‘course of conduct’ offense occurring over a period of time, we conclude that the continuing course of conduct doctrine applies and, therefore, no unanimity instruction was required.” (Zavala, supra, 130 Cal.App.4th at p. 769.)
The fact that the stalking statute defines “harasses” to mean two or more acts does not mean the course of conduct exception does not apply. As the court in Zavala pointed out, the statute itself defines a violation as a “course of conduct.” There is no need for the jury to agree on whether the defendant committed individual acts as long as the net effect constitutes the statutory offense. (People v. Vargas (1988) 204 Cal.App.3d 1455, 1462-1464.) A course of conduct would always involve at least two acts. We see no reason to distinguish the stalking statute from any other statute proscribing not an individual act but “a course of conduct.” We reject defendant’s plea to upset the straightforward logic of Zavala and Jantz.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS , Acting P.J., NICHOLSON , J.