Opinion
A163972
09-26-2024
THE PEOPLE, Plaintiff and Respondent, v. OXANE TAUB, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 19-CR-010394
BROWN, P. J.
Defendant Oxane Taub appeals from misdemeanor and felony convictions stemming from her actions in relation to John Doe, a minor. Taub claims the judgment should be reversed because the trial court improperly denied her motion to represent herself under Faretta v. California (1975) 422 U.S. 806 (Faretta), and violated her rights to a timely preliminary examination under Penal Code section 859b and a speedy trial under section 1382. She additionally argues that her felony conviction for stalking (§ 646.9) and her misdemeanor conviction for annoying or molesting a child (§ 647.6) are invalid under Counterman v. Colorado (2023) 600 U.S. 66 (Counterman), and that there was insufficient evidence to convict her of numerous misdemeanor counts of violating a criminal protective order and a civil harassment restraining order. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
A comprehensive factual and procedural history is unnecessary for the disposition of this appeal. Additional relevant factual details will be discussed in later sections as necessary to address Taub's claims of error.
In 2019, the district attorney filed a complaint, a first amended complaint, and a second amended complaint against Taub alleging misdemeanor violations.
On December 19, 2019, the district attorney filed a third amended complaint adding felony counts. The district attorney filed a fourth amended complaint on February 10, 2020, and a fifth amended complaint on February 24, 2021. Taub waived formal arraignment and pleaded not guilty to the fifth amended complaint on March 19, 2021. Her preliminary hearing began on April 26, 2021.
On May 7, 2021, the district attorney filed an information charging Taub with four felonies and 17 misdemeanors. The felony counts were attempted child abduction (§ 278, count 1); stalking (§ 646.9, subd. (b), count 2); and attempting to dissuade a witness (§ 136.1, subd (a)(2), counts 20 &21). The misdemeanor counts were cruelty to a child (§ 273a, subd. (b), count 3); annoying or molesting a child (§ 647.6, subd. (a)(1), count 4); disobeying a domestic relations court order (§ 273.6, subd. (a), counts 5-8, 10, 12, 14, 16 &18); and disobeying a court order (§ 166, subd. (c)(1), counts 9, 11, 13, 15, 17 &19).
On May 10, 2021, Taub waived formal arraignment on the information and proceeded to a jury trial. The jury convicted Taub on twenty counts. Taub was ultimately sentenced to six years and six months in prison.
During trial, the court granted the district attorney's motion to dismiss count 3.
DISCUSSION
I. The Faretta Claim
A. Additional Background
From July 2019, when the district attorney filed the first misdemeanor complaint against Taub, until December 19, 2019, when the third amended complaint added felony counts, Taub vacillated between asking to proceed pro per, asking to be pro per for one day only, seeking appointment of counsel, and stating that she wanted to hire private counsel. The record suggests that the trial court granted Taub permission to represent herself for a single day in September 2019, although she subsequently made more than one pro per appearance.
Taub had private counsel for some time after the district attorney filed a fourth amended complaint in February 2020, but that attorney withdrew from representing Taub in July 2020. In July and August of 2020, Taub told the court that she was seeking private counsel, it was "humanly impossible" to do so while in custody, and she did not want a public defender.
On September 3, 2020, the court declared a doubt as to Taub's competency. The court minutes from that hearing also reflect that: (1) it was not clear to the court whether Taub would retain counsel or represent herself; (2) if Taub had been granted pro per status at some point in the past, that status was terminated; and (3) the court appointed the public defender.
On February 1, 2021, Taub was deemed competent and the court reinstated criminal proceedings. On February 4, 2021, Taub told the court that she had never asked for a Faretta request to be granted, and she sought to represent herself only while she sought private counsel. She said she would not represent herself because her case was too complicated and she did not go to law school. She also stated that she had the right to a speedy trial and counsel of her choice, and she objected to setting a preliminary hearing date because she did not have counsel.
On February 10, 2021, Taub insisted that she wanted to represent herself until she found private counsel. The court indicated that it would give Taub a Faretta waiver form and explained that, unless she signed the waiver, "then somebody would have to be appointed because the case can't keep going back and forth like this."
On February 23, 2021, Taub returned to court but had not signed the Faretta waiver; she stated that the waiver did not apply to her. For the record, the court summarized an email Taub had sent to the clerk, in which Taub said she would not give up her right to counsel for trial and had "no intention" of representing herself at trial. The court explained to Taub that she had created an impasse, the case had to move forward, and the court would appoint counsel. Taub stated her view that she could "appear pro per without giving up her constitutional rights to counsel" and asserted that she had the right to proceed pro per with motions to dismiss and for a bail reduction, to continue to look for counsel, and to retain her right to counsel. The court responded that Taub's position seemed to be that "unless you get released, you are essentially never going to move this case forward," and the court was appointing counsel to protect her right to representation and potential speedy trial rights because "[n]o one should stay in custody forever and ever."
The next day, Taub appeared and reiterated that she wanted to find counsel instead of representing herself because of the felony charges against her, however, being incarcerated made finding counsel difficult. Taub continued to insist that she had the right to proceed pro per, and asked to exercise that right "while looking for private counsel out of custody." The court appointed counsel and set a hearing for Taub's plea.
On March 4, 2021, Taub filed a motion to restore pro per status. Therein, she wrote that she refused to represent herself at trial, or sign a Faretta wavier, or give up her right to counsel. She wished to look for private counsel and represent herself while doing so.
On March 15, 2021, Taub filed an amended motion to restore pro per status. She again refused to represent herself at trial, give up her right to representation, or sign a Faretta waiver. She said, "I also refuse to be represented by public defenders and by court-appointed attorneys [b]ecause of their terrible reputation. I insist on exercising my constitutional rights to be represented by counsel of my choice," while "continu[ing] looking for private counsel," and proceeding pro per. At the hearing on her motion, Taub reiterated that she did not want to represent herself at trial because she was not qualified, and she refused to sign a Faretta waiver. The court denied her motion.
On April 6, 2021, Taub filed an amended motion to restore pro per status and a request for removal of her appointed attorney, along with a heavily modified Faretta waiver form.
On April 26, 2021, the date that Taub's case was assigned out for a preliminary hearing, attorney Christopher Dobbins made a general appearance as counsel for Taub. The record does not include a reporter's transcript of this general appearance, but the record does indicate that Dobbins was retained by Taub. Dobbins represented Taub at her preliminary hearing and thereafter.
On May 7, 2021, the district attorney filed the information, and Taub waived arraignment. Taub's case was assigned out for trial on June 29, 2021. The next day, the court heard motions in limine, denied Taub's motions to dismiss, and addressed trial scheduling. The court scheduled a jury panel for July 6, 2021, but later canceled the panel when Taub refused to come to court on July 2, 2021, after she had requested a hearing purportedly to discuss a plea bargain.
On July 6, 2021, the court denied as untimely Taub's peremptory challenge under Code of Civil Procedure section 170.6. The court indicated that a jury panel would be available the next day, and, after conferring with Taub, Taub's counsel said, "So Ms. Taub again reiterates her request to represent herself and she said she'll sign a Faretta waiver" (hereafter, the July 6 Faretta request).
The court replied, "Okay. I have read Ms. Taub's motion that she filed, and her request to represent herself has been denied on multiple occasions. I've read that motion and at this time I do not find her qualified or able to represent herself at this time. [¶] Part of my job is to save individuals from themselves. And if you were to represent yourself, I think that you would be doing yourself a great injustice because you have not gone to law school. Okay? And based on your actions in court, it is clear that you do not understand the legal system as an attorney would and I don't think that you can represent yourself. It's already been said that you don't understand the charges that have been alleged against you. [¶] So based on your own conduct here and the motion that you filed and refusing to come to court, I'm going to deny that Faretta request at this time."
B. Taub's Request Was Equivocal and Made To Delay
The Sixth Amendment to the United States Constitution, applicable to state criminal proceedings, gives a defendant two mutually exclusive rights - the right to self-representation and the right to be represented by counsel. (Faretta, supra, 422 U.S. 806; People v. Marshall (1997) 15 Cal.4th 1, 20.) The right to self-representation is waived unless the defendant makes an articulate and unequivocal demand to proceed pro per. (Faretta, at pp. 835-836; People v. Marshall, at pp. 20-21.)
Our Supreme Court has explained that an unequivocal demand is necessary given that "some assertions of the right of self-representation may be a vehicle for manipulation and abuse" (People v. Marshall, supra, 15 Cal.4th at p. 22) and the defendant's constitutional right to the effective assistance of counsel is at stake. (Id. at p. 23.) As "courts must draw every inference against supposing that the defendant wishes to waive the right to counsel," one of the trial court's tasks when confronted with a motion for self-representation is to determine whether the defendant truly desires to represent himself or herself. (Ibid.) "The court faced with a motion for selfrepresentation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about selfrepresentation may support the court's decision to deny the defendant's motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied." (Ibid.)
" 'In determining on appeal whether the defendant invoked the right to self-representation, we examine the entire record de novo.'" (People v. Stanley (2006) 39 Cal.4th 913, 932.)
The July 6 Faretta request was equivocal. Taub's counsel stated that Taub "again reiterates her request to represent herself and she said she'll sign a Faretta waiver." (Italics added.) At the July 6 hearing, the court noted that Taub's prior Faretta requests had been denied and said that it had read the motion Taub had filed. The motion filed closest in time to the July 6 oral Faretta request was Taub's April 2021 motion, wherein she refused to be represented by public defenders or court-appointed attorneys and insisted on "exercising [her] constitutional right to be represented by counsel of [her] choice" at trial. In that motion, Taub wrote that she was in the process of hiring a private attorney to represent her at trial, she could appear with or without counsel as a matter of right, and, until she secured counsel of her choice, she insisted that her pro per status be reinstated. Further, although counsel said that Taub would sign a Faretta waiver on July 6, Taub had heavily modified the Faretta waiver form she electronically signed and submitted with her April 2021 motion to indicate that she did not waive her right to representation at trial.
For example, under the "Constitutional Rights," "Right to Self-Representation," section, Taub's modified Faretta waiver states, "I understand that I have a right to act as my own attorney and may waive my right to the assistance of an attorney. I further understand that if I am permitted to represent myself during my pretrial proceedings while seeking private counsel of my choice, I will have to conduct my own defense without the assistance of an attorney during my pretrial proceedings." Under the "Charges and Consequences" section, Taub wrote, "I understand that this written request to act as my own attorney during my pretrial proceedings will be filed and become part of the court case file," and, "I am attaching my list of attorneys that I have been contacting to secure counsel of my own choice to represent me at my trial." Taub also deleted text, including: (1) the standard text indicating that she understood that, if she were permitted to represent herself, she would be required to conduct her own trial; (2) the standard advisement that the court may deny any of Taub's future requests for representation; and (3) the standard advisement that Taub was giving up claims of ineffective assistance of counsel on appeal.
Reviewing this record de novo and indulging "every reasonable inference against waiver of the right to counsel" (People v. Marshall, supra, 15 Cal.4th at p. 20), Taub did not make an unequivocal request showing that she "truly wishe[d] to give up the right to counsel and represent . . . herself" during trial. (Id. at pp. 25-26.) Her filings do not reflect an unambiguous desire to represent herself at trial, as Taub repeatedly stated she wanted to hire private counsel and deleted many standard advisements discussing waiver of the right to representation at trial. Furthermore, after felony charges were filed, Taub repeatedly told the court that she did not want to represent herself at trial because she was not qualified to do so.
The record also provides evidence that Taub's purpose was to delay and disrupt the proceedings. (See People v. Marshall, supra, 15 Cal.4th at pp. 23, 26.) Early in the case, Taub sought to represent herself, but only for one day. Shortly thereafter, she requested appointed counsel. As the trial court recognized, Taub subsequently created an impasse with her refusal to accept appointed counsel, her equivocal requests to proceed pro per, and her desire to find private counsel to represent her at trial, while at the same time maintaining that she could not do so in custody. This record supports the inference that Taub's position was that nothing would go forward while she was in custody, as the trial court aptly observed. After the court appointed counsel to move the case forward, Taub retained private counsel. Then, on the eve of trial, Taub reiterated her self-representation request, which was seemingly still premised on her position that she wanted private counsel whom she trusted and "who will sign my contract" (italics added) to try her case. This evidence supports the conclusion that Taub's July 6 statement was not unequivocal or premised upon a sincere desire to act as her own counsel for trial, but instead was made to delay and disrupt the orderly administration of justice.
The trial court correctly denied the July 6 Faretta request.
II. The Section 859b Claim
Section 859b specifies the timing of the scheduling of preliminary examinations in felony cases and the consequences associated with violating those time requirements. (People v. Figueroa (2017) 11 Cal.App.5th 665, 673 (Figueroa).) Generally, section 859b has three components. First, the defendant and the People have a right to a preliminary examination "at the earliest possible time," with the presumptive outside period (absent waiver or good cause for continuance) being within "10 court days of the date the defendant is arraigned or pleads, whichever occurs later." (§ 859b [2d par.].) Second, when the defendant is in custody and the preliminary hearing is set or continued beyond 10 court days after the arraignment, plea, or reinstatement of criminal proceedings under section 1367 et seq., "the magistrate shall dismiss the complaint" unless the defendant personally waives the 10-court-day requirement, or the People show good cause for a continuance beyond that period. (§ 859b [3d par.].) Third, as an outside time limit, regardless of whether the defendant is in custody, "[t]he magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 days from the date of the arraignment, plea, or reinstatement of criminal proceedings," absent defendant's personal waiver of this 60-day period. (§ 859b [6th par.].) This third component of the statute - the 60-day rule - is at issue here.
Taub contends that under section 859b, she had the right to a preliminary hearing within 60 days of her December 19, 2019, arraignment on the third amended complaint. She argues that the 16-month delay between her arraignment and her preliminary hearing violated section 859b and compels reversal of her conviction. The Attorney General counters that section 859b's 60-day time limit runs from the date of a defendant's arraignment or plea, whichever is later; Taub did not enter a plea on any felony complaint until March 19, 2021; and Taub's preliminary hearing, held 38 days after her plea, was timely. The Attorney General has the better of this debate.
As the parties acknowledge, Figueroa addressed the issue before us and held that section 859b's 60-day deadline runs from the date of a defendant's arraignment or plea, whichever is later. (Figueroa, supra, 11 Cal.App.5th at p. 681.) We agree with Figueroa.
In Figueroa, the court noted that section 859b uses disjunctive language to identify the three events that potentially trigger the 60-day deadline, but the statute does not specify how the 60-day deadline is determined if the three events occur at different times. (Figueroa, supra, 11 Cal.App.5th at pp. 676677.) Using the guidelines for statutory interpretation, the court then set forth several justifications for its holding that section 859b's 60-day deadline runs from the defendant's arraignment or his or her plea, whichever occurs later. (Id. at pp. 676-681.)
First, Figueroa observed that the statute provides that "both the defendant and the People are granted the right to have 'a preliminary examination at the earliest possible time,' which, absent both parties' waiver or good cause for a continuance, shall be 'within 10 court days of the date the defendant is arraigned or pleads, whichever occurs later.'" (Figueroa, supra, 11 Cal.App.5th at p. 677.) The court determined that this language setting the 10-day time limit was important because it showed that the Legislature understood that the arraignment and plea were two separate events. (Ibid.) Considering the 60-day limit in context then with the statutory framework, the court found it reasonable to infer the same language in the 60-day limit. (Ibid.)
Second, Figueroa reasoned that its interpretation made practical sense in the context of the three relevant events - the arraignment, plea, and preliminary examination. (Figueroa, supra, 11 Cal.App.5th at pp. 677-678.) The court observed that the entry of a not guilty plea sets in motion the requirement for a preliminary hearing, so "the entry of a not guilty plea must be viewed as the condition precedent to the holding of a preliminary examination." (Id. at p. 678.) And defendants can, and often do, postpone entry of a plea following their arraignment so that they have sufficient time to consult with counsel and assess the government's case. (Id. at pp. 677.)
Third, section 859b's legislative history demonstrated that "the Legislature was unconcerned with preplea delay, and sought to address delay in the setting of preliminary hearings for incarcerated defendants who contested the charges by pleading not guilty." (Figueroa, supra, 11 Cal.App.5th at pp. 678-679.) Specifically, when the Legislature first added a time requirement for holding the preliminary examination to section 859b in 1970, that time requirement began running at the date of the arraignment or plea, whichever occurred last. (Id at p. 678.)
Fourth, "reading section 859b as providing for the later-occurring event of arraignment or plea triggers the 60-day time period is consistent with policies found in other statutes implementing a defendant's speedy trial rights." (Figueroa, supra, 11 Cal.App.5th at p. 679.) Specifically, in 1987, the Legislature amended the time limits in section 1382, which require that a defendant be brought to trial within a certain time, to run from the date of the defendant's arraignment or plea," 'whichever occurs later'" (Figueroa, at p. 679; Stats. 1987, ch. 577, § 1), and this change was accomplished" 'to prevent a defendant from using portions of the speedy trial period while the case remained in a preplea posture.'" (Figueroa, at p. 679.) "Section 859b's language implementing the 60-day rule ensuring a defendant's right to a speedy preliminary examination - read in light of the 1987 amendment to section 1382 governing a defendant's speedy trial rights - should be construed as requiring a preliminary hearing within 60 days of the later of the defendant's arraignment or plea." (Figueroa, at p. 679.)
Finally, the Figueroa court reasoned that an interpretation where the 60-day time limit ran from the earlier of the defendant's plea or arraignment - the interpretation that Taub urges here - would have absurd consequences. "Considering section 859b as a whole, it would be unreasonable for the later-occurring arraignment or plea to constitute the triggering event under the presumptive 10-court-day rule, while having a different method of determining the triggering event under the 60-day rule. Were we not to harmonize these two parts of section 859b, the 60-day rule, if the defendant's plea occurred more than 60 days after arraignment, would be triggered and the time would elapse before the time under the presumptive 10-court-day rule even commenced." (Figueroa, supra, 11 Cal.App.5th at pp. 679-680.)
The Figueroa court's reasoning - particularly its reasoning regarding the need to interpret section 859b in context and to avoid absurd results, as well as its observations about the Legislature's lack of concern with preplea delay - is sound. We join Figueroa in holding that section 859b's 60-day time limit runs from the date of a defendant's arraignment or plea, whichever occurs later. (Figueroa, supra, 11 Cal.App.5th at p. 681.) Taub's preliminary hearing was therefore timely because it occurred 38 days after she entered her first plea on a felony complaint.
III. The Section 1382 Claim
A. Additional Background
On June 16, 2021, with a trial date then set for June 28, 2021, Taub filed a motion to dismiss on the grounds that (1) her federal constitutional right to a speedy trial was violated by a seven-month delay from February 2020 to September 2020, and (2) her state right to a speedy trial under section 1382 was violated because she was not brought to trial within 60 days of when her criminal case was reinstated after the conclusion of competency proceedings.
On June 30, 2021, the court denied Taub's motion to dismiss, heard motions in limine, and discussed trial scheduling. The court stated that it intended to schedule a jury panel for July 6, 2021, and jury selection would continue through the week of July 6. When the court inquired about scheduling issues the week thereafter (starting July 12), the prosecutor said she had a pre-planned vacation, and defense counsel said he had "a number of scheduling conflicts" because of three depositions that week. The court disclosed that it was scheduled to finish a jury trial starting July 19, and thereafter the judge had a pre-planned vacation for two weeks. Taub asked to be released on her own recognizance and the court denied the request. The court then summarized, "We are going to pick a jury within her speedy trial rights, . . . [a]nd then we will continue after that short delay. I am not going to interrupt anyone's vacation or your need to do your depositions. I still believe that we are providing her with a speedy trial." Trial was set to resume on August 9, 2021. Defense counsel did not object.
On July 2, 2021, the prosecutor and defense counsel appeared in court in relation to a potential plea bargain, but Taub refused to appear. Observing that defense counsel did not have authority to appear for Taub under section 977, the court said that it would not hear motions that day or call a jury for July 6, 2021, but it would continue the matter to July 6 and expected Taub to appear then. At that point, the prosecutor vocalized her concern that "if we don't have a stipulation that we are effectively in trial, for purposes of Ms. Taub maintaining her speedy trial rights . . . I'm concerned that we might not be able to take such a long break in between picking a jury and starting evidence," and she said she understood that Taub would not enter into a stipulation. The court responded, "Well, Ms. Taub's actions today contributed to the delays. All right? So we'll see on Tuesday. We will bring a jury in on Wednesday and we will swear a panel on Wednesday and we will start. But it's Ms. Taub's own actions in delaying this process."
Taub appeared on July 6, 2021, and jury selection occurred on July 7, 2021, and July 8, 2021. Jury selection resumed on August 9, 2021, and the presentation of evidence began on August 10, 2021.
B. Taub Forfeited Her Section 1382 Claim
Taub contends that the trial court violated her right to a speedy trial under section 1382 because, although jury selection began in a timely manner, she was not brought to trial within the meaning of section 1382 in the required timeframe given the break taken during jury selection. Taub, however, forfeited this claim by failing to properly pursue it below. (People v. Wilson (1963) 60 Cal.2d 139, 146-148 (Wilson).)
"The state and federal Constitutions both guarantee criminal defendants the right to a speedy trial (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1), and both guarantees operate in state criminal prosecutions ...." (People v. Martinez (2000) 22 Cal.4th 750, 754.) "The statutory speedy trial provisions, . . . sections 1381 to 1389.8, are 'supplementary to and a construction of' the state constitutional speedy trial guarantee." (Id. at p. 766.)
Under section 1382, unless good cause is shown, the court shall order a felony case dismissed when the "defendant is not brought to trial within 60 days of the defendant's arraignment on an indictment or information." (§ 1382, subd. (a)(2).) "[A]n accused is 'brought to trial' within the meaning of section 1382 when a case has been called for trial by a judge who is normally available and ready to try the case to conclusion. The court must have committed its resources to the trial, and the parties must be ready to proceed and a panel of prospective jurors must be summoned and sworn." (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 780, fn. omitted.)
The right to a speedy trial under section 1382 is "a privilege personal to the defendant which will be deemed to be waived if not asserted by him in timely fashion." (Wilson, supra, 60 Cal.2d at p. 148, italics omitted.) Accordingly, "[t]he right to a speedy trial . . . will be deemed waived unless the defendant both objects to the date set and thereafter files a timely motion to dismiss." (Id. at p. 146.) A motion to dismiss is required in addition to an objection because "even after such an objection 'There is no duty incumbent on the court to order dismissal under said section 1382 unless the defendant demands it.'" (Wilson, at p. 147.) Rather," 'a right to move for a dismissal is the sole right protected by section 1382.' It is not enough that the defendant has objected at the time the cause was set for trial beyond the statutory period: 'an appellant in such a case cannot make a successful claim of error by the trial court merely because the court has not heeded an objection to the setting of the case.'" (Wilson, at p. 147.)
Here, Taub moved to dismiss for an alleged violation of her federal constitutional right to a speedy trial and for violation of section 1382 based on the theory that her case was not sent to trial within 60 days from when criminal proceedings were reinstated. At no time, however, did she object that section 1382 had been violated because she was not brought to trial within 60 days of her arraignment on the information or move to dismiss based on such violation. On appeal, Taub seeks to excuse her failure to object or move to dismiss by invoking the general rule that a defendant is not required to make a futile objection. Wilson, however, specially states that an objection and a motion to dismiss serve different purposes and both are required. (Wilson, supra, 60 Cal.2d at pp. 146-148.) Even after a defendant has objected to a section 1382 violation, and even after that objection has been overruled, he or she must still also move to dismiss - and failure to do so is a forfeiture. (Id. at pp. 147148.) Thus, we read Wilson to require a motion to dismiss even if the trial court here indicated that it would reject any speedy trial objection.
Taub mentions the federal constitutional right to a speedy trial in her opening brief, but she forfeited any claim that her federal right was violated by failing to make such an argument with citations to pertinent authority and reasoned analysis. (People v. Clayburg (2012) 211 Cal.App.4th 86, 93 [failure to present "reasoned argument and analysis" forfeits issue on appeal].)
IV. First Amendment Claims
Taub raises First Amendment challenges to her convictions under sections 646.9, subdivision (b) (section 646.9(b)) and 647.6, subdivision (a)(1) (section 647.6(a)(1)). Because she bases these challenges on the Supreme Court's recent rejection of Colorado's stalking statute in Counterman, we start with a brief overview of that case.
In Counterman, the United States Supreme Court held that the First Amendment requires the prosecution to prove a mens rea of at least recklessness for any criminal offense based on true threats of violence. (Counterman, supra, 600 U.S. at p. 69.) To obtain a criminal conviction for such an offense, "the State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence." (Ibid.) The defendant in Counterman, however, "was prosecuted in accordance with an objective standard." (Id. p. 82.) Thereunder, the prosecutors "had to show only that a reasonable person would understand [the defendant's] statements as threats"; they were not required to demonstrate "any awareness on his part that the statements could be understood that way."(Ibid.) The lack of any subjective intent element violated the First Amendment. (Ibid.)
The Colorado statute at issue in Counterman made it a crime to" '[r]epeatedly . . . make[ ] any form of communication with another person' in 'a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.'" (Counterman, supra, 600 U.S. at p. 70.)
A. Section 646.9(b) (Count 2)
Citing Counterman, Taub argues that her stalking conviction must be vacated because section 646.9(b) is unconstitutional - both facially and as applied - allegedly because the statute does not require proof that Taub was subjectively aware that the statements she made to the victim were of a threatening nature. We disagree.
California's stalking statute is different than the statute at issue in Counterman. Under California law, "[a]ny 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 [their] safety[ ] or the safety of [their] immediate family is guilty of the crime of stalking." (§ 646.9, subd. (a), italics added.) Although Taub ignores the statute's intent element, for a threat to be credible there must be evidence that the defendant harbored "the intent to place the person that is the target of the threat in reasonable fear for [their] safety or the safety of [their] family." (Id., subd. (g) [defining "credible threat"].)
As the statutory definition makes clear, section 646.9 includes a subjective intent element. For her threat to be credible, Taub had to understand that her statements to the victim could be understood as threatening, and she had to intend that they place the victim in fear. (People v. Lopez (2015) 240 Cal.App.4th 436, 453-454.) Section 646.9(b) thus requires a higher mental state than the recklessness mandated by the First Amendment. (See Counterman, supra, 600 U.S. at pp. 78-79 [a person acts purposefully when he wants his words to be received as a threat, knowingly when he knows to a practical certainty that others will take his words as a threat, and recklessly when he "is aware 'that others could regard his statements as' threatening violence and 'delivers them anyway' "].) Furthermore, the trial court instructed the jurors on the requisite mental state pursuant to CALCRIM No. 1301, and the jurors found sufficient evidence of this mental state. Section 646.9 is not facially invalid, nor was it unconstitutionally applied in this case.
B. Section 647.6(a)(1) (Count 4)
Under section 647.6(a)(1), "Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment." Taub contends that this statute is facially unconstitutional under the overbreadth doctrine and is unconstitutional as applied in her case.
With respect to Taub's facial challenge, under the First Amendment overbreadth doctrine, a law "is facially invalid if it prohibits a substantial amount of protected speech." (United States v. Williams (2008) 553 U.S. 285, 292.) In the context of a free speech challenge, "a law may be invalidated as overbroad if a 'substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'" (United States v. Stevens (2010) 559 U.S. 460, 473.) The challenger bears the burden of establishing facial overbreadth. (People v. Navarro (2013) 212 Cal.App.4th 1336, 1350.)
Taub has forfeited her overbreadth challenge. The judgment here is presumed correct, and Taub must affirmatively demonstrate error. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) Taub hence bears the burden to support any claim of error with reasoned argument, analysis, and citation to pertinent legal authorities, and the failure to do so forfeits the issue on appeal. (People v. Clayburg, supra, 211 Cal.App.4th at p. 93 [failure to present "reasoned argument and analysis" forfeits issue on appeal].) In her briefing, Taub merely points out that section 647.6(a)(1) does not contain a subjective intent element, and she makes the conclusory assertion that the statute therefore "violates the First Amendment on its face, as it fails to require the subjective intent required for a statute regulating speech to pass constitutional muster." Taub has not presented any reasoned argument to support a claim that section 647.6(a)(1) - which is often used to prosecute conduct (People v. Kongs (1994) 30 Cal.App.4th 1741, 1750) - is facially unconstitutional because a substantial number of its applications are unconstitutional in relation to the statute's plainly legitimate sweep. (United States v. Stevens, supra, 559 U.S. at p. 473.)
For similar reasons, Taub has forfeited her as-applied constitutional challenge. As the appellant, Taub bears the burden of supporting her claims with necessary citations to the record. (Cal. Rules of Court, rules 8.204(a)(1)(C) &8.360(a); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245-1246 &fn. 14 [failure to present argument with necessary record references results in a forfeiture].) Taub's as-applied challenge turns on the factual premise that her conviction cannot stand under Counterman because she was convicted under section 647.6(a)(1) for communicating true threats. But Taub's sole record cite is to the prosecution's concession in closing argument that none of the charges in this case were based on Taub physically touching John Doe. Taub does not provide any record cites that show she was convicted under section 647.6(a)(1) for making true threats, and her failure to do so results in forfeiture. (Nwosu v. Uba, at p. 1246 [it is not our role to search the record for evidence supporting appellant's arguments].)
C. Jury Instructions
We quickly dispose of Taub's final claim related to Counterman - that the jury instructions for counts 2 and 4 omitted the requisite mental state element - for reasons similar to those previously discussed. Regarding count 2, the jury instruction included a sufficient mental state element - that the government had to prove "[t]he defendant made a credible threat with the intent to place the other person in reasonable fear for his safety or for the safety of his immediate family." For count 4, the jury was only required to find that "[t]he defendant's conduct was motivated by an unnatural or abnormal sexual interest in the child." Nonetheless, Taub forfeits any claim of error with respect to this instruction by failing to provide necessary record citations showing that she was prosecuted and/or convicted under section 647.6(a)(1) for communicating true threats of violence. (Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1245-1246 &fn. 14.)
V. Claimed Insufficiency of the Evidence
Taub's final argument is that the evidence is insufficient to support her convictions for three counts of violating a civil harassment restraining order (counts 7, 16, and 18) and two counts of violating a criminal protective order (counts 17 and 19) because she did not "contact" John Doe in contravention of those orders. She argues that, for these counts, she was convicted for writing messages that she posted on blogs she created, and these messages were not contacts because they were posted publicly and she did not send them directly to John Doe.
A. Additional Background
The information charged Taub with two counts of violating section 166, subdivision (c)(1), for willfully and knowingly violating a criminal protective order (counts 17 and 19), and three counts of violating section 273.6, subdivision (a), for knowingly and intentionally violating a civil harassment restraining order (counts 7, 16, and 18). The criminal protective order against Taub prohibited contact with John Doe. The civil harassment restraining order against Taub also prohibited contact, direct or indirect, with John Doe and his mother.
B. Analysis
Taub has forfeited her substantial evidence claims by failing to provide an adequate summary of the relevant facts, supported by necessary citations to the record. The California Rules of Court require that all appellate briefs must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rules 8.204(a)(1)(C), 8.360(a).) When making a substantial evidence challenge, the appellant must present all the material facts, not just the evidence supporting the appellant's position. (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246.) Failure to present a fair statement of the facts, accompanied by corresponding specific citations to the record, results in forfeiture of any substantial evidence argument. (Ibid.) It is not our role to search the record for evidence that supports an appellant's arguments. (Ibid.)
Here, Taub's only citation to the record in the section presenting her substantial evidence challenge in her opening brief is to brief portions of the prosecution's closing argument. She has thus failed to provide any citation to evidence in the record that supports her claim. Taub further fails to summarize or provide citations to the record regarding the prosecution's evidence surrounding the contacts at issue. Accordingly, her substantial evidence claims are forfeited. (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: STREETER, J. DOUGLAS, J. [*]
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.