People v. Malear CA1/1
A159659
| Cal. Ct. App. | Jul 23, 2021Background
- In August 2018 Malear allegedly choked and threw his then‑girlfriend (Doe); police were called and he was arrested two days later.
- While in jail on the morning after arrest he made two recorded phone calls to Doe about 42 minutes apart: the first asking her to "drop these charges," the second telling her not to go to court when called.
- Malear was tried on multiple counts; the jury convicted him of misdemeanor battery of a cohabitant, stalking with a prior, and two counts arising from the jail calls: count 4 (attempting to dissuade a witness under §136.1(a)(2)) and count 5 (dissuading a victim from prosecuting under §136.1(b)(2)).
- At sentencing the court imposed a total prison term of six years (three years for stalking plus a consecutive three‑year strike term); counts 4 and 5 received concurrent three‑year terms.
- On appeal Malear raised three claims: (1) §136.1(a)(2) is facially vague; (2) section 654 requires staying the sentence on count 4 because the two calls were a single act; and (3) the abstract of judgment lists incorrect assessment amounts and must be corrected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether §136.1(a)(2) is unconstitutionally vague | §136.1(a)(2) gives adequate notice; malice requirement and specific‑intent element are workable | Malear: malice definition is circular/substantively meaningless and "orderly" is too vague | Rejected. Statute is not vague; defendant’s conduct falls squarely within it and malice/specific‑intent mitigates vagueness |
| 2. Whether section 654 requires staying sentence on count 4 | The two calls were separate, divisible acts and the court implicitly found separate objectives | Malear: both calls were part of a single course of conduct with one objective so multiple punishments forbidden | Rejected. Substantial evidence supports divisibility (different statements/objectives and sufficient time to reflect) |
| 3. Whether abstract of judgment lists correct assessment amounts | People: abstract contains arithmetic errors and should be amended to match amounts imposed/stayed at sentencing | Malear: abstract lists higher assessment totals than the court imposed | Granted in part. Court ordered abstract corrected to $200 court operations fee and $150 criminal conviction assessment fee |
Key Cases Cited
- People v. Wahidi, 222 Cal.App.4th 802 (2013) (interpreting §136.1 malice element and legislative history)
- People v. McDaniel, 22 Cal.App.4th 278 (1994) (holding §136.1(a)(2) is a specific‑intent crime)
- People v. Murphy, 25 Cal.4th 136 (2001) (standing limits vagueness challenges when defendant’s conduct plainly falls within statute)
- Connally v. General Constr. Co., 269 U.S. 385 (1926) (vagueness doctrine: statutes must give fair warning)
- People v. Rodriguez, 47 Cal.4th 501 (2009) (section 654 divisibility test governed by defendant’s intent/objective)
- People v. Trotter, 7 Cal.App.4th 363 (1992) (separate acts with reflection time can support separate punishments under §654)
- In re Sheena K., 40 Cal.4th 875 (2007) (appellate review of facial vagueness even if not raised below)
- People v. Mitchell, 26 Cal.4th 181 (2001) (ordering correction of abstract of judgment to conform to oral pronouncement)