THE PEOPLE, Plaintiff and Respondent, v. MARK AARON SORDEN, Defendant and Appellant.
D076458
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 5/18/21
NOT TO BE PUBLISHED IN OFFICIAL REPORTS. California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN393022)
APPEAL from a judgment of the Superior Court of San Diego County, Brad A. Weinreb, Judge. Affirmed as modified and remanded with directions.
Matthew R. Garcia, under appointment by
Mark Aaron Sorden (Appellant) appeals from a judgment following his conviction for contempt of court for violating a Criminal Protective Order—Domestic Violence (CPO) issued in a prior action. (
As we explain, Appellant did not meet his burden of establishing reversible error. In reaching this decision, to the extent Appellant has not forfeited appellate review, we will conclude: (A) Appellant may not collaterally attack the CPO in this action; (B) the trial court properly instructed the jury as to the meaning of “disturbing the peace” for purposes of the contempt conviction (
Accordingly, we will modify the judgment to strike the two one-year sentence enhancements and otherwise affirm the judgment.
I. PROCEDURAL BACKGROUND
In February 2019, the district attorney filed a two-count information, charging Appellant with false imprisonment by violence, menace, fraud, or deceit (count 1;
At trial, the jury found Appellant guilty of count 2 (violation of the CPO) and found true the allegation that the offense involved an act of violence or a credible threat of violence. The jury was unable to reach a verdict as to count 1 (false imprisonment), and the court declared a mistrial and dismissed this count in response to the People‘s motion. Appellant then changed his plea to the allegations of the two prison priors and admitted their truth.
In August 2019, the trial court denied Appellant‘s requests both to reduce the conviction to a misdemeanor and to sentence Appellant to a term of probation. The court sentenced Appellant to a term of five years in prison, as follows: the upper term of three years on count 2 and consecutive one-year terms for each of the two prison priors.1
Appellant timely appealed.
II. FACTUAL BACKGROUND
In May 2017, Appellant pled guilty to one count of violating a
On the same date, the court entered a criminal protective order (previously identified as the CPO). Gloria G. is the “protected person“; and, as relevant to the present action, the CPO ordered that Appellant “must not harass, strike, threaten, assault (sexually or otherwise), follow, stalk, molest, destroy or damage personal or real property, disturb the peace, keep under surveillance, or block movements of” Gloria.
The incident at issue occurred on September 24, 2018. At the time, Gloria and Appellant had been in a dating relationship for four years, living in a converted tool shed—which Appellant compared to “a cottage on the side of the house“—on East Alvarado Street in Fallbrook. Across the street from them, Frank A. lived in a studio apartment—which Frank described as a “bungalow, pool house” or “little guest house“—at the top of the driveway; his parents lived in the main house on the property.
Appellant‘s telephone calls; and she asked the nephew not to tell Appellant where she was. During this time period, Appellant came by Frank‘s residence once a week looking for Gloria.
At or around 10:00 p.m. on the night of September 24, 2018, Gloria arrived at Frank‘s apartment, explaining to him that she had left the month before because she needed some space from Appellant and still was hiding from him.
An hour or two later—i.e., shortly before midnight, as Gloria was waiting for a ride back to the apartment in Vista—Appellant arrived at Frank‘s studio and let himself in. Appellant and Gloria seemed surprised to see the other. Appellant asked Gloria to step outside so that they could talk. Frank and Appellant exchanged words—with Frank telling Appellant to stay outside, and Appellant telling Frank to mind his own business. During this exchange, Frank told Appellant that Gloria did not want to speak with him, that Gloria was leaving Appellant, and that Appellant should just “get over it.” Although the evidence is not clear as to who first grabbed Gloria‘s arm, the evidence is consistent that, Appellant took one of her arms in an attempt to lead her outside, and Frank took her other arm in an attempt to keep her inside (as he thought she wanted). During this scuffle just inside the door of the studio apartment, Appellant punched Frank in the eye, and Frank returned the punch.
As Gloria was attempting to extricate herself from the middle of the men‘s physical altercation, her foot got stuck under the front door (which opened into the apartment), and she fell to the floor. Appellant helped Gloria get up and carried her outside. Concerned because the police had been called, Appellant lifted Gloria, placed her over his shoulder, and hauled her down Frank‘s driveway to the street. At the end of the driveway, as Gloria
screamed to be put down, Appellant placed Gloria on the ground. According to Gloria, she screamed because she was in extreme pain due to cancer.
By this time, a small crowd of neighbors had congregated near the bottom of Frank‘s driveway. Appellant drove away in his car, and a friend of Gloria‘s waited with her for the police to arrive.
In the present case, the jury found that Appellant violated
“(c)(1) . . . [A] willful and knowing violation of a protective order or stay-away court order described as follows shall constitute contempt of court, a misdemeanor, punishable by imprisonment in a county jail for not more than one year, by a fine of not more than one thousand dollars ($1,000), or by both that imprisonment and fine: [¶] . . . [¶] (B) An order issued pursuant to paragraph (2) of subdivision (a) of Section 1203.097.”
In this regard,
“(a) If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include all of the following: [¶] . . . [¶] (2) A criminal court protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment[.]”
For purposes of
In the present action, for purposes of the
“It is the policy of our state that contempt citations not be taken lightly, especially criminal contempt[ ]. An alleged contemnor in this state is entitled to the full panoply of substantive and due process rights . . . .” (People v. Kalnoki (1992) 7 Cal.App.4th Supp. 8, 11 [appeal from misdemeanor contempt under former
As we explain, here Appellant has not met his burden of establishing reversible error on appeal.
Appellant presents two arguments on appeal that concern the scope of the CPO. More specifically, he contends that violations of certain of the acts prohibited by the CPO—namely, disturbing the peace and surveillance—cannot form the basis of a contempt violation for purposes of
1. Background; the May 2017 Action & Resulting CPO
In early May 2017, the People filed a three-count misdemeanor complaint against Appellant (May 2017 Action). Count 1, entitled “Violation
of Protective or Stay-Away Order, Domestic Violence or Elder Abuse” (bolding and some capitalization omitted), alleged in full:
“On or about April 26, 2017, [Appellant] did willfully, knowingly and unlawfully violate a protective order and stay away court order issued pursuant to Penal Code section 136.2 in a pending criminal proceeding involving domestic violence, as defined in Penal Code section 13700, in violation of PENAL CODE SECTION 166(c)(l).”
The version of former
On May 3, 2017, as part of a formal plea agreement in the May 2017 Action, Appellant pled guilty to violating
“(c)(1) . . . [A] willful and knowing violation of a protective order or stay-away court order described as follows shall constitute contempt of court, a misdemeanor, punishable by imprisonment in a county jail for not more than one year, by a fine of not more than one thousand dollars ($1,000), or
by both that imprisonment and fine: [¶] (A) An order issued pursuant to Section 136.2.”
As part of the negotiated plea, Appellant agreed to comply with the terms of the CPO.
2. Law
” ‘As a general rule, the elements of contempt include (1) a valid order, (2) knowledge of the order, (3) ability to comply with the order, and (4) willful failure to comply with the order.’ ” (Wanke, Industrial, Commercial, Residential, Inc. v. Keck (2012) 209 Cal.App.4th 1151, 1168 (Wanke), italics added [alleged violation of a facially valid stipulated injunction].) A willful and knowing violation of a court order like the CPO can be an act of criminal contempt (
We begin with our Supreme Court‘s description of the “well settled [rule] in California that a void order cannot be the basis for a valid contempt judgment“:
“We established in In re Berry (1968) 68 Cal.2d 137, 147 (Berry), a case involving a misdemeanor contempt prosecution [under former
section 166, subdivision (4) ], that ‘the violation of an order in excess of the jurisdiction of the issuing court cannot produce a valid judgment of contempt [citations], and that the “jurisdiction” in question extends beyond mere subject matter or personal jurisdiction . . . .’ Rather, ’ “any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutorydeclaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction.” ’ (Ibid.)” (Gonzalez, supra, 12 Cal.4th at p. 817, first & second italics added.)
Thus, a potential contemnor may collaterally challenge an underlying order that was entered ” ‘in excess of the jurisdiction of the issuing court.’ ” (Ibid.)
By contrast, a party may not defend against enforcement of a court order by contending merely that the order is legally erroneous. (In re Marriage of Niklas (1989) 211 Cal.App.3d 28, 35 (Niklas) [“A person may refuse to comply with a court order and raise as a defense to the imposition of sanctions that the order was beyond the jurisdiction of the court and therefore invalid, but may not assert as a defense that the order merely was erroneous” (italics added)]; Signal Oil & Gas Co. v. Ashland Oil & Refining Co. (1958) 49 Cal.2d 764, 776, fn. 6 (Signal Oil) [” ‘An [order] duly issuing out of a court of general jurisdiction with equity powers upon pleadings properly invoking its action, and served upon persons made parties therein and within its jurisdiction, must be obeyed by them however erroneous the action of the court may be’ ” (italics added)].) In sum, only an erroneous order that is either “unconstitutional on its face” or “in excess of the issuing court‘s jurisdiction” is subject to collateral attack in a later contempt proceeding for violating the order. (Gonzalez, supra, 12 Cal.4th at p. 823.)
For example, in Berry, supra, 68 Cal.2d 137, the petitioners were found guilty of willfully violating a temporary restraining order that was “void on its face.” (Id. at p. 150.) In the petitioners’ habeas corpus action, the Supreme Court allowed a collateral challenge to the order, concluding that “the violation of an order in excess of the jurisdiction of the issuing court cannot produce a valid judgment of contempt . . . .” (Id. at p. 147; see ibid. [an “order constitutionally void on its face is issued in excess of jurisdiction and cannot sustain a contempt judgment based upon its violation“].)
By contrast, in Signal Oil, supra, 49 Cal.2d 764, the temporary restraining order on which the contemnor‘s contempt was based was validly
issued, but later became void following a court ruling which invalidated an agreement upon which both the temporary restraining order and the preliminary injunction were issued. (Id. at pp. 775-778.) Because the invalidity of those two orders was not apparent on their faces, any violation of the orders up to the time the underlying agreement was declared void was subject to the court‘s contempt authority:
“At the time the [temporary restraining and preliminary injunction] orders in this case were issued, the court had jurisdiction over the parties and the subject matter, there was no claim that the procedural requirements of the injunction statute [under which the orders were issued]
had not been met, and there was at least a prima facie showing of facts which would sustain the court‘s orders. Under the circumstances, these orders, although subsequently determined to be erroneous, were not void.” (Id. at p. 776, fn. omitted.)
Stated differently, even where the underlying order is ultimately determined to be erroneous, such an order—the violation of which will support a contempt finding—does not become “a nullity.” (Id. at p. 777.) That is because, as the court later explained in Berry, the temporary restraining order in Signal Oil “suffered from no jurisdictional defect because the invalidity of the agreement did not appear upon the face of the order.” (Berry, supra, 68 Cal.2d at p. 148.) Thus, for purposes of determining noncompliance, “acts undertaken in violation of that order should therefore be given recognition.” (Ibid.)
Accordingly, we proceed with the following succinct summary of the law provided by our colleagues in the Sixth District: “Although an order made in excess of the court‘s jurisdiction may not form the basis of a contempt order [citation to and quotation from Gonzalez, supra, 12 Cal.4th at p. 817], a party may not defy a legally erroneous court order and then challenge it collaterally in proceedings brought to enforce the order [citing Wanke, supra, 209 Cal.App.4th at p. 1172, & Signal Oil, supra, 49 Cal.2d at p. 776, fn. 6].”
(City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1080, fn. 13 (Carrnshimba).)
3. Analysis
a. Disturbing Gloria‘s Peace
In part, the CPO ordered Appellant not to “disturb the peace” of Gloria. During its deliberations, the jury submitted the following note to the court: ” ‘What is the legal definition of “disturbing the peace” as stated in . . . the [CPO?‘]” Without objection,6 the court instructed the jury: ” ‘The plain meaning of disturbing the peace can be defined as “conduct that destroys the [mental] or emotional calm of the other party[.” ]’ ”
Appellant‘s first argument on appeal is that neither
We begin with the understanding that Appellant was charged with violating
In responding to this question, Appellant does not challenge the substantiality of the evidence in support of a finding that he disturbed Gloria‘s peace. He challenges only whether “disturb[ing] the peace” is a valid restriction in a CPO issued under
This argument fails for at least two independent reasons. Each is based on the acknowledgement in Appellant‘s opening brief on appeal that the trial court had the discretion—i.e., jurisdiction—to include as a term of probation that Appellant was prohibited from disturbing Gloria‘s peace.
First, Appellant‘s argument is an impermissible collateral attack on the CPO, a final order issued in the May 2017 Action. Appellant‘s complaint that the trial court in the May 2017 Action erred in issuing a condition of probation which is “broader than that which is prohibited by
Second, even if we were to consider Appellant‘s collateral attack on the CPO, contrary to Appellant‘s argument (for which he provides no authority),
order only to those acts expressly identified in the statute. To the contrary, the statute merely provides a list of acts which must be included in a
b. Keeping Gloria Under Surveillance
In part, the CPO ordered Appellant not to “follow, stalk” or “keep [Gloria] under surveillance.” During its deliberations, the jury submitted the following note to the court:
“Does the violence against the third party [which is required for a conviction of
section 166(c)(1)(B) ] have to be a consequence of the violation of [the] protective order in order to meet the criterion (‘involved an act of violence‘) for the second part of charge #2?“For example, if we believe the protective order was violated by surveillance (tracking her phone), can the act of violence against Frank in front of Gloria be considered,
since Gloria was involved? Or, does the act of violence have to be directly related with the specific violation of the protective order (surveillance/tracking phone)[?]”
Without objection,8 the court instructed the jury: ” ‘If you determine the protective order has been violated, an act of violence against someone other than the protected party [may] be considered only if you find it facilitated the commission of or completion of the violation.’ ”
Appellant argues that, because “surveillance/phone-tracking is not criminal conduct under
Cal.4th at p. 817; Carrnshimba, supra, 215 Cal.App.4th at p. 1080, fn. 13.) Second, even if we were to consider Appellant‘s collateral attack on the CPO,
B. The Trial Court Did Not Err in Instructing the Jury as to “Disturbing the Peace”
Appellant contends that, in response to a question from the jury, the court provided a “substandard explanation” of ” ‘disturbing the peace,’ ” resulting in an instruction that was “vague, overbroad and ambiguous.” (Capitalization and bolding omitted.) In a related argument, Appellant complains that the jury instructions did not “establish a crucial element of the ‘crime’ “—namely ” ‘disturbing the peace.’ ” We are not persuaded.
1. Background
With regard to the contempt of court allegations in count two (
direct inquiry, Appellant agreed to this instruction without comment or objection.
As we introduced at part III.A.3.a., ante, during its deliberations, the jury submitted a note, asking the court, ” ‘What is the legal definition of “disturbing the peace” as stated in . . . the [CPO?‘]” The court discussed with counsel
Consistent with its intended response and counsel‘s stipulation, the court answered the jury‘s question as follows: ” ‘The plain meaning of disturbing the peace can be defined as “conduct that destroys the [mental] or emotional calm of the other party[.” ]’ ” The court based its (stipulated) response principally on the holding and reasoning from In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483 (Nadkarni), which we discuss post.
2. Law
In a criminal case, the trial court has a sua sponte duty to instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Brooks (2017) 3 Cal.5th 1, 73 (Brooks).) “Even if the court has no sua sponte duty to instruct on a particular legal point, when it does choose to instruct, it must do so correctly.” (People v. Castillo (1997) 16 Cal.4th 1009, 1015 (Castillo); accord, People v. Ramirez (2015) 233 Cal.App.4th 940, 949 [while no specific jury instruction is ever required, the
trial court has a duty to ensure that the instructions given “provide a complete and accurate statement of the law“].)
“A claim of instructional error is reviewed de novo. [Citation.] An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law. [Citation.] In reviewing a claim of instructional error, the court must consider whether there is a reasonable likelihood that the trial court‘s instructions caused the jury to misapply the law in violation of the Constitution. [Citations.] The challenged instruction is viewed ‘in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.’ ” (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
Instructional error requires reversal of the judgment only if it resulted in a miscarriage of justice—which, in this context, means that there is a reasonable probability that the defendant would have fared better in the absence of
3. Analysis11
The trial court in the present case based its definition of “disturbing the peace” on the definition given to the phrase in Nadkarni, supra, 173 Cal.App.4th at pages 1495-1499.
In Nadkarni, a former wife applied for and received a temporary restraining order and order to show cause against her former husband under the Domestic Violence Prevention Act (DVPA;
” ‘disturbing the peace’ ” for purposes of abuse under the DVPA.12 (Id. at p. 1494.)
As the
“To determine the plain meaning of statutory language, we may resort to the dictionary. ‘When attempting to ascertain the ordinary, usual meaning of a word [in a statute], courts appropriately refer to the dictionary definition of that word.’ [Citation.] The ordinary meaning of ‘disturb’ is ‘[t]o agitate and destroy (quiet, peace, rest); to break up the quiet, tranquility, or rest (of a person, a country, etc.); to stir up, trouble, disquiet.’ [Citation.] ‘Peace,’ as a condition of the individual, is ordinarily defined as ‘freedom from anxiety, disturbance (emotional, mental or spiritual), or inner conflict; calm, tranquility.’ (Ibid.) Thus, the plain meaning of the phrase ‘disturbing the peace of the other party’ in [Family Code] section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party.” (Nadkarni, supra, 173 Cal.App.4th at p. 1497, italics added; see ibid. [this “interpretation of the phrase ‘disturbing the peace of the other party’ . . . comports with the legislative history of the DVPA“].)
Under this definition, the Court of Appeal had no difficulty concluding that “the plain meaning of the phrase ‘disturbing the peace’ . . . may include, as abuse within the meaning of the DVPA, a former husband‘s alleged conduct in destroying the mental or emotional calm of his former wife by accessing,
reading and publicly disclosing her confidential emails.” (Nadkarni, supra, 173 Cal.App.4th at p. 1498.)
The Nadkarni court’s definition has been applied consistently since 2009: “ ‘ “[T]he plain meaning of the phrase ‘disturbing the peace’ in section 6320 may include, as abuse within the meaning of the DVPA, [an alleged abuser’s] conduct in destroying the mental or emotional calm of his [alleged victim].” ’ ” (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 853; accord, McCord v. Smith (2020) 51 Cal.App.5th 358, 364; Curcio v. Pels (2020) 47 Cal.App.5th 1, 12 (Curcio); N.T. v. H.T. (2019) 34 Cal.App.5th 595, 602; In re Bruno M. (2018) 28 Cal.App.5th 990, 997; Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 401; Altafulla v. Ervin (2015) 238 Cal.App.4th 571, 579; Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820; In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1424; Gou v. Xiao (2014) 228 Cal.App.4th 812, 817; Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1146-1147 (Burquet) [Nadkarni’s interpretation of “ ‘disturbing the peace of the other party’ ” under the DVPA “is well reasoned”].)
We agree with the Nadkarni court’s definition of “disturbing the peace” and conclude that the trial court accurately instructed the jury in this case. We are not persuaded by Appellant’s arguments to the contrary.
Accordingly, Appellant continues, “how was [A]ppellant to know prior to this jury instruction that the prohibited conduct was the Family Law definition of disturbing the peace and not the Criminal Law definition in section 415?
When the CPO was imposed . . . back in 2017, did the trial court notify [A]ppellant that disturbing the peace meant ‘destroying the mental or emotional calm of [Gloria]?’ ” For a number of reasons, this objection does not help Appellant.
First, merely asking rhetorical questions about proceedings in 2017 in a different case does not suggest, let alone establish error; instead, it results in a forfeiture of the issue(s) by failing to “provide legal argument and citation to authority.” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363 (Bryant).) Second, contrary to Appellant’s argument,
dissent, disagreement, or criticism.15
Appellant next argues that “[t]he definition [of ‘disturbing the peace’] in this case was . . . broader than Nadkarni and its progency [sic], because it allowed the jury to find [A]ppellant disturbed [Gloria’s] peace based on any conduct committed by [A]ppellant.” Since the instruction given by the trial court here was identical to the definition provided in Nadkarni, supra, 173 Cal.App.4th at page 1497 (“conduct that destroys the mental or emotional calm of the other party”), the instruction here necessarily was not broader than the definition in Nadkarni. Thus, Appellant does not convince us that the court here erred in instructing the jury with a definition of “disturbing the peace” consistent with Nadkarni.
Appellant next raises of number of questions and comments regarding what he contends is the inadequacy of the court’s response to the jury’s inquiry. They include: “what standard the jury should judge whether one’s
‘emotional calm’ was destroyed: subjective or objective?”; “what mental state was required in order to ‘destroy one’s emotional calm[?]’ Can one negligently ‘destroy the emotional calm’ of another party?”; and “one may question the propriety or wisdom of lifting definitions derived from Family Law into the criminal sphere.” However, due to Appellant’s failure to present reasoned argument and legal authorities in support of the questions and comments he presents here, Appellant forfeited our consideration of them in this appeal. (Bryant, supra, 60 Cal.4th at p. 363.) As we introduced ante, simply posing questions on appeal neither presents issues for appellate review nor establishes reversible error.
Throughout his presentation on appeal, Appellant confuses and conflates a willful violation of an order issued pursuant to
contempt of court for willfully violating a
C. The Trial Court Did Not Err in Allowing the Jury to Consider Evidence of Cellphone Tracking Not Presented at the Preliminary Hearing
Appellant argues that he was denied due process of law by lack of notice of the charges against him when the court allowed the jury to consider evidence of an alleged violation of the CPO (i.e., cellphone tracking) not presented at the preliminary hearing. We disagree.
1. Background
At the preliminary hearing, there was no evidence of Appellant’s tracking of Gloria’s cellphone. At the close of the preliminary hearing, the prosecutor argued that Appellant had violated the CPO by the physical confrontation at and outside Frank’s apartment on the night of September 24, 2018.
During trial, on direct examination, Appellant testified that, as a result of tracking Gloria’s cellphone, he knew exactly where she had been staying during the time she had moved in temporarily with the people whom she referred to as Appellant’s niece and nephew. On cross-examination, Appellant confirmed that he had been tracking Gloria’s cellphone. During closing argument, in attempting to persuade the jury that Appellant violated the CPO, the prosecutor again emphasized the details of the physical confrontation at and outside Frank’s apartment. In addition, the prosecutor noted that Appellant “got on the stand and admitted that he stalked [Gloria] for 35 days. He was tracking her phone.”
During its deliberations, the jury submitted a note related to the alleged contempt, which for purposes of
asked the following questions: “[I]f we believe the [CPO] was violated by surveillance (tracking her phone), can the act of violence against Frank in front of Gloria be considered, since Gloria was involved? Or, does the act of violence have to be directly related with the specific violation of the protective order (surveillance/tracking phone)[?]” (Italics added.)
Although these and the related questions in the jury’s note all had to do with proof of violence for purposes of the enhancement (
2. Law
Based on the constitutional requirement “that one accused of a crime must be ‘informed of the nature and cause of the accusation[,]’ . . . [d]ue
process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.” (People v. Jones (1990) 51 Cal.3d 294, 317 (Jones), quoting
In this context, the information “ ‘tells a defendant what kinds of offenses he is charged with and states the number of offenses that can result in prosecution.’ ” (People v. Pitts (1990) 223 Cal.App.3d 606, 904, 908 (Pitts), superseded by statute on another ground, italics added.) By contrast, the preliminary hearing transcript “afford[s the defendant] notice of the time, place and circumstances of [the] charged offenses” in the information. (Id. at p. 908, italics added.)
3. Analysis
Appellant claims that, because he was not put on notice of the charges against him based on cellphone tracking, he was denied due process when
As an initial consideration, Appellant forfeited appellate review of this argument by not objecting or otherwise raising the issue in the trial court. (People v. Hoyt (2020) 8 Cal.5th 892, 911 (Hoyt), cert. den. sub nom. Hoyt v. California (2020) __ U.S. __, 141 S.Ct. 285 [“Defendant did not raise this argument in the trial court, which would ordinarily bar him from raising it on appeal.”].) In particular, a defendant who fails to object at trial that the evidence showed offenses different from those at the preliminary hearing forfeits appellate consideration of the contention that the defendant lacked
adequate notice of the charges. (People v. Newlun (1991) 227 Cal.App.3d 1590, 1603-1604 [the defendant was charged with lewd and lascivious conduct; evidence of sodomy, which was not presented at the preliminary hearing, was presented at trial; by failing to object at trial, the defendant forfeited the appellate argument].)
Even if we were to reach the merits, the result would be no different.17 Appellant was charged with the crime of contempt in violation of
After quoting from Jones, supra, 51 Cal.3d at page 317, our colleagues in Division Three recently summarized: “A defendant therefore cannot be prosecuted for an offense not shown by the evidence at the preliminary hearing[.]” (People v. Calhoun (2019) 38 Cal.App.5th 275, 303.) Appellant does not contend that he was convicted of an offense not shown by the evidence at the preliminary hearing; nor does he suggest that the evidence at the preliminary hearing did not establish the offense. Instead, Appellant argues that he cannot be convicted of an offense based on evidence not presented at the preliminary hearing. The error in Appellant’s reasoning is that he is focusing on the evidence presented at the preliminary hearing and at trial (which was different), rather than on the offense alleged in the information, shown at the preliminary hearing, and proven at trial (all of which was the same, i.e., a violation of
Appellant’s reliance on People v. Burnett (1999) 71 Cal.App.4th 151 (Burnett) is misplaced. There, the jury convicted the defendant of being a felon in possession of a firearm, and the principal issue on
incident” involving specific witnesses and a .38-caliber revolver. (Id. at p. 170.) “No hint was given at the preliminary hearing that a different witness had seen [the defendant] in possession of a different firearm at a different time on the same date. . . . The offense described by [the new witness at trial]—possession of the .357 magnum revolver . . . —was never the subject of a preliminary hearing.” (Id. at pp. 170-171, italics added.)
In the present case, the information charged Appellant with violating the CPO on September 24, 2018; and the evidence at the preliminary hearing (which did not include evidence of cellphone tracking) supported findings that Appellant violated the CPO on September 24, 2018. At trial, the jury found that Appellant violated the CPO on September 24, 2018—as charged in the information—even though the evidence at trial included evidence that was not presented at the preliminary hearing (i.e., cellphone tracking). Thus, unlike Burnett, supra, 71 Cal.App.4th 151, here the charge, the evidence at the preliminary hearing, and the evidence at trial (including evidence that was not presented at the preliminary hearing) all dealt with a violation of the CPO on September 24, 2018, as charged in the information.
the CPO on or about September 24, 2018. Significantly, Appellant does not suggest that the evidence at the preliminary hearing failed to put him on notice of the charge of willfully and knowingly violating the CPO on September 24, 2018.19
For these reasons, neither Appellant’s “right to notice of the charges” nor Appellant’s “right to present a defense to those charges,” as required by Jones, supra, 51 Cal.3d at page 317, was adversely affected by the evidence of surveillance that Appellant presented in his testimony at the trial. In the language of Pitts, supra, 223 Cal.App.3d at page 904, in this case Appellant received “ ‘all the notice the Constitution requires’ ” because the evidence presented at the preliminary hearing: (1) “ ‘supports the number of offenses charged against [Appellant]’ ”—i.e., one violation of
Accordingly, the trial court did not deny Appellant due process of law when it allowed the jury to consider evidence of cellphone tracking that was not presented at the preliminary hearing.
D. The Trial Court Did Not Err in Instructing the Jury Regarding “an Act of Violence”
The jury found true the
subdivision (c)(4) allegation or subdivision (c)(4) enhancement allegation).20 Appellant
1. Background
A violation of
During its deliberations, the jury sent the court a number of notes, two of which Appellant contends are relevant to the showing required to establish “an act of violence” for purposes of the subdivision (c)(4) enhancement
allegation. The jury’s two notes and the court’s two responses provide as follows:
JURY NOTE NO. 2
Jury’s Note:
“ ‘Does violence in the commission of violating the restraining order have to be committed against Gloria — or can it be against others as well[?’]”
Court’s Response:
“ ‘Conduct involving an act of violence against someone other than the protected party, may only be considered if you find such conduct occurred after the defendant had violated the court order.’ ”
Jury’s Note:
“ ‘Question about charge #2 [(§ 166(c)(1)(B)]
“ ‘Does the violence against the third party have to be a consequence of the violation of protective order in order to meet the criterion (“involved an act of violence”) for the second part of charge #2?
“ ‘For example, if we believe the protective order was violated by surveillance (tracking her phone), can the act of violence against Frank in front of Gloria be considered, since Gloria was involved? Or, does the act of violence have to be directly related with the specific violation of the protective order (surveillance/tracking phone)[?’]”
Court’s Response:
“ ‘If you determine the protective order has been violated, an act of violence against someone other than the protected party [may] be considered only if you find it facilitated the commission of or completion of the violation.’ ”
Approximately a half day after submitting note No. 3, the jury found Appellant guilty of contempt in violation of
2. Law
“In the construction of a statute the intention of the Legislature . . . is to be pursued, if possible[.]” (
Thus, when we interpret a Penal Code statute, “our ‘fundamental task . . . is to determine the Legislature’s intent so as to effectuate the law’s purpose.’ . . . ‘Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning.’ ” (People v. Ruiz (2018) 4 Cal.5th 1100, 1105, citation omitted.) “ ‘If the statutory language is unambiguous, then its plain meaning controls. If, however, the language supports more than one reasonable construction, then
The trial court’s interpretation of a statute—here,
With regard to the applicable law related to jury instructions, we incorporate by reference our discussion at part III.B.2., ante.
3. Analysis
a. Violence Against a Third Party
Appellant’s first objection to the court’s responses to the jury’s note Nos. 2 and 3 is that, for purposes of the subdivision (c)(4) enhancement, the instructions allowed the jury to consider acts of violence against Frank—or against anyone other than Gloria, as the protected party under the CPO.
Notably, in his appellate briefing, Appellant concedes the “the lack of direct authority” for his position.
According to Appellant,
Where, as here, a statute sets a general rule without including exceptions or limitations (like
language of
Appellant suggests that, because
We agree with Appellant that “[t]he purpose of
present case, the court’s instruction adequately takes into consideration this concern, by telling the jury that, to make a true finding based on “ ‘an act of violence against someone other than the protected party,’ ” the act of violence must have “ ‘facilitated the commission of or completion of the [section 166, subdivision (c)(1)] violation.’ ”
More specifically, as we explain, for purposes of
-
a protective order issued in response to a showing of intimidation of a witness ( § 166, subd. (c)(1)(A) )—which has nothing to do with domestic violence; - a protective order issued as part of a grant of probation for a crime in which the victim is a victim of domestic violence (
§ 166(c)(1)(B) )—which deals exclusively with domestic violence (and is the subdivision under which the People charged, and the jury convicted, Appellant); - a protective order issued after a conviction in a criminal proceeding involving elder or dependent adult abuse (
§ 166, subd. (c)(1)(C) )—which is different from domestic violence; - a protective order issued after a conviction in a criminal proceeding of a sexual offense involving a minor victim (
§ 166, subd. (c)(1)(D) )—which has nothing to do with domestic violence; - a protective order issued in a family law proceeding restraining (a) specific acts of abuse, (b) ownership or possession of firearms or ammunition, (c) residence in the dwelling of another, or (d) the
specified behavior that was necessary to effectuate the protective order at issue (
- a protective order issued after a conviction for willful infliction of corporal injury resulting in a traumatic condition upon a specific class of victims related to the defendant, including a spouse, former spouse, cohabitant, former cohabitant, co-parent, or person with a former engagement or dating relationship (
§ 166, subd. (c)(1)(F) )—which may involve, but is not limited to, domestic violence.
In telling us that the purpose of the subdivision (c)(4) enhancement “is to protect victims of domestic violence,” Appellant relies on only four of the six separately identified types of
Appellant’s second objection to the court’s responses to the jury’s note Nos. 2 and 3 is that, for purposes of the subdivision (c)(4) enhancement, the instructions allowed the jury to consider acts of violence that did not occur at
the same time as the violation of the protective order. As applicable here, according to Appellant,
Accordingly, to the extent this is a separate or distinct issue from the one discussed immediately above regarding violence against a third party (pt. III.D.3.a., ante), Appellant forfeited separate or distinct appellate consideration of this issue. (People v. Stanley (1995) 10 Cal.4th 764, 793 [“ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ ”];
E. The Trial Court Was Not Required to Give a Unanimity Instruction for the Subdivision (c)(4) Enhancement
Appellant argues that the trial court erred in not sua sponte instructing the jury that it had to agree unanimously as to which act constituted the violence for purposes of the subdivision (c)(4) enhancement allegation. We are not convinced.
1. Background
While the jury deliberated, after the court responded to jury note Nos. 2 and 3 concerning “an act of violence” for purposes of the subdivision (c)(4) enhancement (set forth in full at pt. III.D.1., ante), the court and counsel
discussed the need for a unanimity instruction. During the discussion, they considered whether a unanimity instruction was necessary as to both the specific violation of the CPO for purposes of the
2. Law
Under the
When a defendant is charged with a criminal offense, but the evidence suggests more than one discrete crime, either the People must elect among the crimes or the trial court must instruct the jurors that they all agree on the same criminal act. (Russo, supra, 25 Cal.4th at p. 1132; accord, People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings) [“when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty”]; People v. Riel (2000) 22 Cal.4th 1153, 1199.)
The requirement for a unanimity instruction “ ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ ” (Russo, supra, 25 Cal.4th at p. 1132, italics added.) By contrast, “where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty.”21 (Ibid., italics added.)
“ ‘The same reasoning should, in general, apply to enhancements as well as the crimes that underlie them.’ ” (People v. Hernandez (2009) 180 Cal.App.4th 337, 347-348.)
Despite the
Because our consideration of whether the trial court should have given a particular jury instruction involves a mixed question of law and fact which is “ ‘predominantly legal,’ ” we review de novo whether the specific instruction was required. (Hernandez, supra, 217 Cal.App.4th at p. 568 [unanimity instruction].)
3. Analysis
Appellant’s position is that, for purposes of the subdivision (c)(4) enhancement allegation, the trial court erred in failing, sua sponte, to give a unanimity instruction as to the “act of violence” that accompanied the violation of the CPO. According to Appellant, “the Count 2 enhancement allegation involved two discrete acts and two discrete victims”—namely, violence against Gloria and violence against Frank. We disagree. As we explain, because the violence against Gloria and the violence against Frank were part of a continuous course of conduct during the violation of the CPO, there was no need for the court to give a unanimity instruction as to the subdivision (c)(4) enhancement allegation.
Based on the instruction given in response to the jury’s note No. 3, to have found the subdivision (c)(4) allegation true, the jury had to find that Appellant committed an act of violence against Gloria or a third party that “facilitated the commission of or completion of the violation” of the CPO.
The only evidence of potential violence establishes that it took place shortly before midnight on September 24, 2018, in or around Frank’s apartment. When Appellant arrived unannounced at Frank’s apartment, he let himself in. While still in the doorway, Appellant asked Gloria to step outside so that they could talk. Frank and Appellant exchanged words; and as Appellant took one of Gloria’s arms in an attempt to lead her outside, Frank took her other arm in an attempt to keep her inside. During the commotion, which was just inside the door of the studio apartment, Appellant punched Frank in the eye, and Frank returned the punch. As Gloria attempted to get away from the two men (who only let go of her when they began hitting each other), her foot got stuck under the front door. Appellant then lifted Gloria from the floor and took her outside. Concerned because the
police had been
Significantly, Appellant affirmatively acknowledges what appears from each witness’s testimony: Appellant fought with Frank and carried Gloria away “within a short time of one another.” Appellant’s acts of violence—whether directed to Frank or Gloria (or both)—were “ ‘so closely connected in time as to form part of one transaction.’ ” (Jennings, supra, 50 Cal.4th at p. 679; accord, Hernandez, supra, 217 Cal.App.4th at p. 572; see People v. Mota (1981) 115 Cal.App.3d 227, 231-234 [repeated acts of violence during one hour a continuous crime].) Here, as part of the “transaction” of contempt (i.e., the violation of the CPO), Appellant suggests that the acts directed to Frank and the acts directed to Gloria were “separate and distinct.” We disagree. All of the violence occurred over a short period of time as Appellant was removing Gloria from Frank’s apartment—i.e., from the time Appellant first grabbed Gloria’s arm until he placed her down at the bottom of the driveway. For this reason, no unanimity instruction was required.22 (Jennings, at p. 679; Hernandez, at p. 572.)
Appellant’s authorities do not convince us otherwise.
In People v. McNeill (1980) 112 Cal.App.3d 330, the Court of Appeal reversed a conviction for assault with a deadly weapon, where, during the course of a murder, the defendant was alleged to have fired shots at the
victim’s four friends who witnessed the murder. (Id. at p. 334.) In one count, the information charged the defendant with assault, alleging that each of the four friends was a victim of the assault. (Ibid.) There, the trial court erred in not sua sponte giving a unanimity instruction, because “[a]ssaults upon separate victims, even though perpetrated by a single individual during an indivisible course of conduct, each comprise a separate, punishable offense.” (Id. at pp. 334-336.) By contrast, here, each of the various acts of violence that occurred during “an indivisible course of conduct” did not “comprise a separate, punishable [enhancement].” Thus, since there was an indivisible course of violent conduct during which acts of violence occurred, no unanimity instruction was required. (Jennings, supra, 50 Cal.4th at p. 679; Hernandez, supra, 217 Cal.App.4th at p. 572.)
multiple acts of violence—all of which “ ‘are so closely connected in time as to form part of one transaction.’ ” (Jennings, supra, 50 Cal.4th at p. 679; accord, Hernandez, supra, 217 Cal.App.4th at p. 572.)
F. Without Individual Instances of Trial Court Error, There Can Be No Prejudice from “Cumulative Error”
Appellant contends that, “[e]ven if the Court does not find any single error prejudicial, the judgment should be reversed because the cumulative effect of the errors rendered the trial fundamentally unfair and cannot be shown harmless beyond a reasonable doubt. . . . [¶] Here, cumulative prejudice from multiple errors requires reversal.”
Under the “cumulative error” doctrine, “ ‘a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.’ ” (People v. Abilez (2007) 41 Cal.4th 472, 523.) Here, however, because Appellant has not established any one error by the trial court, Appellant cannot establish what he characterizes as a “cumulative effect of the errors” or “cumulative prejudice.” (Ibid.; In re Reno (2012) 55 Cal.4th 428, 483 [“claims previously rejected on their substantive merits . . . cannot logically be used to support a cumulative error claim because we have already found there was no error to cumulate”].)
G. The Two One-Year Sentence Enhancements Should Be Stricken
Appellant argues that each of the two one-year terms imposed based on Appellant’s prison priors should be stricken as a result of a change in the law.
1. Background
After the filing of the jury’s verdict, Appellant admitted the truth of the two prior prison terms alleged in the information for purposes of former
Effective January 1, 2020, Senate Bill No. 136 amended
On January 1, 2020, the effective date of Senate Bill No. 136, this appeal was pending.
2. Law
The rule in California is that a statute which ameliorates the punishment for an offense will generally apply retroactively to any case in which the judgment is not yet final before the effective date of the statute. (In re Estrada (1965) 63 Cal.2d 740, 742, 744-745 (Estrada).) As our Supreme Court explained:
“When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute
imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.” (Id. at p. 745.)
Under Estrada, supra, 63 Cal.2d 740, “ ‘for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed.’ ” (People v. Vieira (2005) 35 Cal.4th 264, 306.) Stated differently, as we recently ruled: “For purposes of the Estrada rule, a judgment is not final so long as courts may provide a remedy on direct review.” (People v. Jennings, supra, 42 Cal.App.5th at p. 682 [retroactive application of
3. Analysis
“By eliminating
Accordingly, we will modify the judgment by striking the two one-year prior prison term sentencing enhancements under
IV. DISPOSITION
The two one-year sentencing enhancements under
IRION, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
Notes
Even if we were to reach the merits of the argument, the result would be no different. In Curcio, the court expressly set forth the Nadkarni standard, quoting from and citing Nadkarni as follows: “[The alleged abuser] could be enjoined under the DVPA for disturbing [the alleged victim’s] peace through conduct causing ‘destruction of her mental or emotional calm.’ (Nadkarni, supra, 173 Cal.App.4th at pp. 1497, 1499.)” (Curcio, supra, 47 Cal.App.5th at p. 12, italics added.) The Curcio court then applied that standard, concluding that the evidence in that case did not meet the Nadkarni standard; the court did not criticize, comment on, or otherwise limit this well-established definition. (Id. at pp. 12-13.)