65 Cal.App.5th 582
Cal. Ct. App.2021Background
- Appellant Mark Aaron Sorden had previously pleaded guilty in May 2017 to violating a protective order and was subject to a criminal protective order (CPO) issued under Penal Code §1203.097(a)(2) that prohibited, among other things, disturbing the peace, following/stalking, and surveillance of the protected person (Gloria).
- On September 24, 2018, Appellant went to a neighbor Frank’s unit where Gloria was present; a physical altercation ensued (Appellant and Frank exchanged punches), Appellant carried Gloria out of the unit and down the driveway, and police were summoned.
- The People charged false imprisonment (mistried at trial) and a willful violation of the CPO (§ 166(c)(1)(B)) with a § 166(c)(4) allegation that the violation involved an act of violence; the information also alleged two prior prison-term enhancements.
- The jury convicted Appellant of violating the CPO and found the § 166(c)(4) allegation true; Appellant admitted the two prior prison terms; the trial court imposed the upper term (3 years) plus two consecutive one-year prior-term enhancements (total 5 years).
- On appeal Appellant challenged: (1) the scope/validity of CPO terms (disturbing the peace, surveillance) as bases for contempt; (2) the jury instruction/definition of “disturbing the peace”; (3) admission of cellphone-tracking evidence not introduced at the preliminary hearing; (4) the scope and unanimity requirements for the § 166(c)(4) “act of violence” finding; and (5) cumulative error; both parties agreed Senate Bill No. 136 requires striking the prior-prison enhancements.
- The Court of Appeal affirmed the conviction and most rulings, rejected Appellant’s collateral attacks and instruction/notice claims, held no unanimity instruction was required on these facts, found no cumulative prejudice, but struck the two one-year prior-prison-term enhancements under SB 136 and corrected the abstract of judgment.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Sorden) | Held |
|---|---|---|---|
| 1. Collateral attack on CPO terms (disturbing the peace; surveillance) | CPO terms, being part of probation, are valid; violation of any term may support §166(c)(1)(B) contempt. | The CPO’s prohibitions (e.g., “disturbing the peace,” surveillance) exceed §1203.097(a)(2)’s listed acts and thus cannot support criminal contempt; the CPO is legally erroneous. | Rejected: Appellant may not collaterally attack the CPO absent a claim it is void; §1203.097(a)(2) lists required inclusions but does not limit other valid CPO terms. |
| 2. Meaning of “disturbing the peace” for CPO contempt | The trial court’s plain-meaning instruction (conduct that destroys another’s mental/emotional calm) is appropriate and consistent with family/DVPA precedent. | The Court’s definition was vague, overbroad, and improperly imported family-law meaning into criminal contempt; prejudicial error. | Rejected: Court adopted Nadkarni definition (conduct that destroys mental/emotional calm); no reasonable likelihood jury misapplied law and Appellant forfeited many objections. |
| 3. Admission of cellphone-tracking evidence not presented at prelim (notice/due process) | The information charged violation of the CPO on a specific date; preliminary hearing need not mirror every piece of trial evidence so long as the offense charged was shown; no surprise or prejudice. | Permitting jury to consider phone-tracking evidence (not shown at prelim) deprived Appellant of notice and opportunity to prepare; violates due process. | Rejected: Appellant forfeited objection by not raising it at trial; prelim supported the charged offense (violation on Sept. 24, 2018) and constitutional notice was adequate. |
| 4. Scope of §166(c)(4) “act of violence” (must be against protected person or contemporaneous) | §166(c)(4) enhancement requires an act of violence in connection with the contempt; Legislature did not limit the victim to the protected person or require a contemporaneous-only restriction. | The act of violence must be directed at the protected domestic-violence victim and be contemporaneous with the CPO violation. | Rejected: statute not limited to violence against the protected person; court properly instructed jury that violence against third parties may be considered if it facilitated the violation; no requirement beyond that. |
| 5. Need for unanimity instruction on which act constituted the “act of violence” | No election by People but the acts here were part of a single continuous transaction; continuous-course exception applies so unanimity instruction not required. | Jurors could have convicted on different violent acts/victims; jury must be unanimous as to which violent act supported the enhancement. | Rejected: violence (punches, carrying Gloria) occurred in a short continuous sequence—one transaction—so no unanimity instruction was required. |
| 6. Cumulative error | Any instructional or evidentiary errors, taken together, deprived Appellant of a fair trial. | Individual claimed errors required reversal when aggregated. | Rejected: Appellant did not establish any prejudicial individual error, so cumulative-error claim fails. |
| 7. Prior prison-term enhancements under former §667.5(b) and SB 136 | N/A (People agreed) | The two one-year prior-prison-term enhancements should be stricken under SB 136’s limitation of §667.5(b) to sexually violent offenses. | Granted: SB 136 applies retroactively (judgment not final); strike the two one-year enhancements and amend abstract. |
Key Cases Cited
- People v. Gonzalez, 12 Cal.4th 804 (Cal. 1996) (a void order cannot support a contempt conviction; collateral attack allowed only for jurisdictional defects)
- In re Berry, 68 Cal.2d 137 (Cal. 1968) (orders void on their face cannot sustain contempt convictions)
- Signal Oil & Gas Co. v. Ashland Oil & Refining Co., 49 Cal.2d 764 (Cal. 1958) (orders valid on their face may support contempt even if later determined erroneous)
- In re Marriage of Nadkarni, 173 Cal.App.4th 1483 (Cal. Ct. App. 2009) ("disturbing the peace" may mean conduct that destroys another’s mental or emotional calm)
- People v. Jones, 51 Cal.3d 294 (Cal. 1990) (due-process notice: defendant must be informed of nature and cause of accusation; prelim hearing supplies time/place/circumstances)
- People v. Burnett, 71 Cal.App.4th 151 (Cal. Ct. App. 1999) (defendant may not be tried for an offense not shown at the preliminary hearing; amendment cannot charge offense not shown at prelim)
- People v. Jennings, 50 Cal.4th 616 (Cal. 2010) (unanimity rule and continuous-course-of-conduct exception)
- In re Estrada, 63 Cal.2d 740 (Cal. 1965) (ameliorative criminal statutes generally apply retroactively to nonfinal judgments)