People v. Sorden

Filed 6/15/21 (mod.); pub. order 6/15/21 follows unmodified opn. (attached); reposted with mod. order
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076458
Plaintiff and Respondent,
v. (Super. Ct. No. SCN393022)
MARK AARON SORDEN, ORDER MODIFYING
OPINION AND DENYING
Defendant and Appellant. REHEARING
NO CHANGE IN JUDGMENT
THE COURT:
The opinion filed May 18, 2021, is hereby modified as follows:
1. On page 7, four lines from the bottom, at the end of the
paragraph—i.e., immediately after “CPO.”—add the following new footnote 4
and renumber the remaining footnotes:
In a petition for rehearing, Appellant argues that
Government Code section 68081 requires rehearing
because the “theory” that the CPO cannot be collaterally
attacked “was not briefed by either party.” (Capitalization
and bolding omitted.) We disagree. By its terms,
Government Code section 68081 requires a rehearing to
afford the parties an opportunity to provide supplemental
briefing only where the appellate court’s decision is “based
upon an issue which was not proposed or briefed by any
party[.]” As interpreted and applied by our Supreme Court,
“[Government Code s]ection 68081 does not require that a
party actually has briefed an issue; it requires only that the
party had the opportunity to do so.” (People v. Alice (2007)
41 Cal.4th 668, 677.) Here, Appellant raised the issue by
collaterally attacking the CPO without considering whether
such an attack is allowed. As we explain in the text, post, it
is not. “[T]he fact that [Appellant] d[id] not address an
issue, mode of analysis, or authority that is . . . fairly
included within the issues [he] raised does not implicate the
protections of [Government Code] section 68081.” (Alice, at
p. 679.)
In any event, even if we were to grant rehearing to
allow further briefing, the result would be no different. At
part II. of his petition for rehearing, Appellant presented
substantive arguments as to why his collateral attack on
the CPO should have been considered. In declining to
modify any portion of this part III.A. of the opinion, we
have fully considered all of the arguments Appellant raised
at part II. of his petition for rehearing.
2. On page 21, at the beginning of the fifth line, within the
quotation, insert “[Family Code]” before the first word (“section”), so that the
line begins, within the quotation: [Family Code] section 6320.
3. On page 31, replace the text of former footnote 19 with the
following:
Nor can Appellant now argue that he was unable to present
a defense to a violation of the CPO based on cellphone
tracking, since he is the one who raised the issue in the
trial court. The first indication of cellphone tracking came
from Gloria, in response to a question from Appellant’s
counsel on cross-examination, regarding why she told
Appellant she had been staying in Orange County.
Further, on direct examination of Appellant, Appellant’s
counsel asked a question to which Appellant volunteered,
“Honestly, I tracked her phone”—direct evidence that the
2
jury could consider in deciding whether he had violated the
CPO.
Appellant’s petition for rehearing is denied.
There is no change in judgment.
McCONNELL, P. J.
Copies to: All parties
3
Filed 5/18/21 (unmodified opinion)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076458
Plaintiff and Respondent,
v. (Super. Ct. No. SCN393022)
MARK AARON SORDEN,
Defendant and Appellant.
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 the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson, Allison V. Acosta and Kristine A. Gutierrez, Deputy Attorneys
General, for Plaintiff and Respondent.
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. (Pen. Code, § 166,
subd. (c)(1)(B) (§ 166(c)(1)(B)); further undesignated statutory references are
to this code.)
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 (§ 166(c)(1)(B)); (C) 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 properly instructed the jury as to the meaning of “act of violence”
for purposes of the conduct enhancement (§ 166, subd. (c)(1)); (E) the trial
court was not required to give a unanimity instruction for the conduct
enhancement (§ 166, subd. (c)(4)); and (F) without individual instances of
trial court error, there can be no prejudice from “cumulative error.” Finally,
we will further conclude that, as Appellant and the Attorney General agree,
because Senate Bill No. 136 (2019-2020 Reg. Sess.; Stats. 2019, ch. 590, § 1,
eff. Jan. 1, 2020) (Senate Bill No. 136) applies retroactively, the two one-year
sentence enhancements based on prior prison terms should be stricken from
the judgment.
Accordingly, we will modify the judgment to strike the two one-year
sentence enhancements and otherwise affirm the judgment.
2
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; §§ 236, 237, subd. (a)) and the violation of a protective order
issued in connection with a prior domestic violence conviction (previously
identified as the CPO) (count 2; § 166, subd. (c)(1)). The second count also
alleged that the violation occurred within seven years of a prior conviction of
section 166, subdivision (c)(1), and involved an act of violence or a credible
threat of violence. (§ 166, subd. (c)(4).) In addition, the information alleged
that Appellant had served two prior prison terms. (Former § 667.5, subd. (b);
Stats. 2018, ch. 423, § 65.)
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.
1 The abstract of judgment erroneously indicates that Appellant was
convicted by a plea of guilty. We will direct that the abstract be corrected to
reflect that Appellant was convicted by a jury.
3
II. FACTUAL BACKGROUND
In May 2017, Appellant pled guilty to one count of violating a
section 136.2 protective order (§ 166, subd. (c)(1)), admitting that he “violated
a court order [he] knew was in place to prevent domestic violence.” As part of
a plea agreement, in part Appellant was required to comply with the terms of
a criminal protective order with a “no negative contact” provision.
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.
Over a month earlier, in August 2018, Gloria “needed some space” from
Appellant and left the East Alvarado cottage, moving in temporarily with
people in Vista whom she referred to as Appellant’s niece and nephew.2
Gloria did not tell Appellant where she was and did not answer any of
2 According to Appellant, he is not biologically related to either the
“niece” or the “nephew.” Appellant explained that the “nephew” is “a young
man that [he] had taken under [his] wing for ten years” and the “niece” was
the “nephew’s” girlfriend.
4
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
5
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.
III. DISCUSSION
In the present case, the jury found that Appellant violated
section 166(c)(1)(B), which provides in relevant part:
“(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, section 1203.097, subdivision (a)(2) (section 1203.097(a)(2))
provides in relevant part:
“(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 section 1203.097(a)(2), Gloria qualifies as “a person defined
in Section 6211 of the Family Code.”3
3 Under Family Code section 6211, “ ‘Domestic violence’ ” includes
“abuse” perpetrated against “A person with whom [Appellant] is having or
has had a dating or engagement relationship.” (Id., subd. (c).)
6
In the present action, for purposes of the section 166(c)(1)(B) conviction,
the CPO is the section 1203.097(a)(2) criminal protective order that the jury
found Appellant to have violated.
“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 § 166, subd. (2)].) “In the review of a contempt
proceeding ‘the evidence, the findings, and the judgment are all to be strictly
construed in favor of the accused’ ”; and, contrary to general appellate
procedure, “ ‘no intendments or presumptions can be indulged in aid of their
sufficiency.’ ” (Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1256 [review
of criminal contempt judgment based on violation of injunction issued under
Red Light Abatement Law].)
As we explain, here Appellant has not met his burden of establishing
reversible error on appeal.
A. Appellant May Not Collaterally Attack the CPO in this Action
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
section 166(c)(1)(B). As we explain, we reject Appellant’s arguments, since
they are impermissible collateral attacks on the CPO.
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
7
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 section 136.2 that was applicable in May 2017
contained more than 35 separately identified subdivisions and paragraphs.4
(Stats. 2016, ch. 86, § 220, eff. Jan. 1, 2017.) The record on appeal does not
indicate the basis on which the court in the May 2017 Action issued the
section 136.2 protective order—other than the allegation that it was issued
“in a pending criminal proceeding involving domestic violence” as defined in
section 13700.5
On May 3, 2017, as part of a formal plea agreement in the May 2017
Action, Appellant pled guilty to violating section 166, subdivision (c)(1).
Appellant’s violation in that action was under subdivision (c)(1)(A), which
provides in relevant part:
“(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
4 Current section 136.2 has been amended three times since May 2017.
(Stats. 2017, ch. 270, § 1, eff. Jan. 1, 2018; Stats. 2018, ch. 805, § 1, eff.
Jan. 1, 2019; Stats. 2019, ch. 256, § 6, eff. Jan. 1, 2020.)
5 Section 13700, subdivision (b) defines “ ‘Domestic violence’ ” as “abuse
committed against an adult or a minor who is a spouse, former spouse,
cohabitant, former cohabitant, or person with whom the suspect has had a
child or is having or has had a dating or engagement relationship.”
8
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 (§ 166(c)(1)(B)), but only if the order is valid (People v. Gonzalez
(1996) 12 Cal.4th 804, 816-817 (Gonzalez) [defendant’s violation of civil public
nuisance gang activity injunction]).
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 statutory declaration, 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.)
9
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
10
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].”
11
(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 section 166(c)(1)(B)
nor section 1203.097(a)(2) “authorize[s] criminal liability to be premised on
disturbing the peace.” (Capitalization and bolding omitted.)
We begin with the understanding that Appellant was charged with
violating section 166(c)(1)(B), and section 166(c)(1)(B) does not criminalize
“disturb[ing] the peace.” That subdivision of the statute is violated only by a
“willful and knowing violation of . . . [a]n order issued pursuant to
[section 1203.097(a)(2)].” (§ 166(c)(1)(B).) Based on the straightforward
language of the statute, because the CPO was issued pursuant to
section 1203.097(a)(2), if Appellant willfully or knowingly violated the CPO,
then Appellant violated section 166(c)(1)(B). In the context of this argument,
therefore, the only question is whether Appellant willfully or knowingly
disturbed Gloria’s peace.
6 The reporter’s transcript indicates there was no objection to the court’s
proposed response. The court’s minutes indicate that counsel “stipulate[d]” to
the court’s proposed response.
12
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 section 1203.097(a)(2). According to
Appellant, “[t]he prohibited conduct in the CPO is . . . broader than that
which is prohibited by section 1203.097.” His objection is that the
section 1203.097(a)(2) criminal protective order at issue here—i.e., the CPO—
includes as a prohibited act “disturb[ing] the peace” of Gloria, yet
section 1203.097(a)(2) does not include disturbing the peace of the victim
among the expressly listed prohibited acts.
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
section 1203.097” is nothing more than the argument that the CPO is legally
erroneous. However, with no suggestion that the CPO is void, Appellant is
precluded from challenging the CPO in these contempt proceedings. (Signal
Oil, supra, 49 Cal.2d at p. 776, fn. 6; Wanke, supra, 209 Cal.App.4th at
p. 1172; Gonzalez, supra, 12 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, contrary to Appellant’s argument (for which he provides no authority),
section 1203.097(a)(2) does not limit a domestic violence criminal protective
13
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
section 1203.097(a)(2) criminal protective order—namely, “further acts of
violence, threats, stalking, sexual abuse, and harassment.” (Ibid.) Neither
the language of the statute nor our independent research suggests that the
Legislature intended to limit the acts in a section 1203.097(a)(2) criminal
protective order to those which must be included.7 In fact, given that a
section 1203.097(a)(2) criminal protective order is intended, at least in part,
to protect a domestic violence victim from “further acts” of violence by the
defendant who was granted probation in the prior criminal case, the “further
acts” listed in section 1203.097(a)(2) should be construed broadly enough to
include disturbing the peace.
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,
7 Appellant argues on appeal that trial counsel’s assistance was
constitutionally ineffective by failing to object to the lack of an instruction
precluding guilt based on a finding that Appellant violated the CPO by
disturbing Gloria’s peace. We disagree. Trial counsel was not
constitutionally ineffective by failing to mount an impermissible collateral
attack on the CPO.
14
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 section 1203.097,” in response to the jury’s question,
“[t]he trial court should have instructed the jury that they could not find a
violation of section 166[, subdivision ](c)(1).” Once again, Appellant does not
challenge the substantiality of the evidence to support a finding that he
surveilled Gloria, only that “surveillance” is not among the five specifically
identified acts that are prohibited by section 1203.097(a)(2). In support of his
argument, Appellant incorporates by reference his arguments related to the
CPO’s prohibition of disturbing Gloria’s peace.
Accordingly, for the same reasons that we rejected Appellant’s
challenge to the “disturb[ing] the peace” language as a basis for a
section 166(c)(1)(B) violation, we reject Appellant’s suggestion that
surveillance/phone-tracking cannot be a basis for a section 166(c)(1)(B)
violation. First, because Appellant does not suggest that the CPO is void,
Appellant’s argument is an impermissible collateral attack on the CPO, a
final order issued in the May 2017 Action. (Signal Oil, supra, 49 Cal.2d at
p. 776, fn. 6; Wanke, supra, 209 Cal.App.4th at p. 1172; Gonzalez, supra, 12
8 The reporter’s transcript indicates there was no applicable objection to
the court’s proposed response, whereas the court’s minutes indicate that
counsel “stipulate[d]” to the proposed response.
15
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,
section 1203.097(a)(2) does not limit a criminal protective order only to those
acts expressly identified in the statute. The statute merely provides a list of
acts which must be included—namely “further acts of violence, threats,
stalking, sexual abuse, and harassment” (§ 1203.097(a)(2))—with no
indication that the list of prohibited acts is exclusive.9 Finally, given the
purpose of a section 1203.097(a)(2) criminal protective order, the “further
acts” listed in section 1203.097(a)(2) should be construed broadly enough to
include surveillance.
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
(§ 166(c)(1)(B)), the court instructed the jury pursuant to CALCRIM
No. 2701. During the jury instructions conference, in response to the court’s
9 Appellant argues on appeal that trial counsel’s assistance was
constitutionally ineffective by failing to object to the lack of an instruction
precluding guilt based on a finding that Appellant’s surveillance of Gloria (by
phone tracking) violated the CPO. We disagree. Trial counsel was not
constitutionally ineffective by failing to mount an impermissible collateral
attack on the CPO.
16
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 what disturbing the peace means in various contexts—i.e., criminal,
civil, and family (domestic violence) law. The court gave counsel time to read
the cases, statutes, and jury instructions discussed, and specifically asked
counsel for their input. In response to its stated intention to tell the jury that
“disturbing the peace” “may be properly understood as conduct that destroys
the mental or emotional calm of the other party,” the prosecutor expressly
agreed, and defense counsel expressed no objection, to “submit[ting the
matter] to the court.”
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
17
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 the error. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; People
v. Watson (1956) 46 Cal.2d 818, 836; see People v. Cavitt (2004) 33 Cal.4th
187, 209 [erroneous limiting instruction subject to Watson harmless error
analysis10].)
10 Appellant argues that the applicable harmless error standard is under
Chapman v. California (1967) 386 U.S. 18, pursuant to which federal
constitutional error is harmless only if the error was harmless beyond a
reasonable doubt (id. at p. 24). According to Appellant, Chapman applies,
because the alleged instructional error in defining “disturbing the peace”:
“results in a defect in the description of an element of the crime”; or
“reliev[es] the state of its obligation to prove every element of the charged
offense beyond a reasonable doubt.” That is not the appropriate standard,
however, because, as we explained at part III.A.3.a., ante, “disturbing the
18
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; Fam. Code, § 6200 et seq.).
(Nadkarni, supra, 173 Cal.App.4th at p. 1488.) At the show cause hearing,
the trial court dismissed the application on the basis that the former
husband’s conduct—namely, accessing the former wife’s email account and
copying confidential emails—was insufficient to constitute abuse within the
meaning of the DVPA. (Ibid.) The appellate court reversed, ruling that the
former wife’s application was “facially sufficient” under the DVPA. (Ibid.)
More specifically, the court held that, for purposes of the DVPA, “ ‘ “abuse” ’ ”
includes “ ‘disturbing the peace of the other party’ ” and proceeded to define
peace” is not an element of the crime of contempt of court for willfully
violating a criminal protective order (§ 166(c)(1)(B)).
11 The Attorney General suggests that Appellant forfeited a challenge to
the definition of “disturbing the peace” by failing either to object or to request
clarifying or amplifying language in the trial court. (People v. Riggs (2008) 44
Cal.4th 248, 309; People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.)
Nonetheless, as the Attorney General later acknowledges, where (as here) the
court “does choose to instruct, it must do so correctly.” (Castillo, supra, 16
Cal.4th at p. 1015.) Thus, we reject Appellant’s suggestion that trial
counsel’s failure to object was constitutionally ineffective and proceed to the
merits.
19
“ ‘disturbing the peace’ ” for purposes of abuse under the DVPA.12 (Id. at
p. 1494.)
As the Nadkarni court explained:
“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,
12 At the time of the Nakdarni opinion, Family Code former section 6203,
subdivision (d) defined “ ‘abuse’ ” to include “any behavior that has been or
could be enjoined pursuant to [Family Code] Section 6320” (see Fam. Code,
§ 6203, subd. (4)); and Family Code section 6320 provided in part that the
court may issue an “order enjoining a party from . . . disturbing the peace of
the other party.” (Italics added; see Nadkarni, supra, 173 Cal.App.4th at
p. 1494.)
20
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.
Initially, Appellant argues that, despite the foregoing authorities,
“there are no Criminal Law cases that have adopted this definition.”13
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?
13 Appellant’s statement is incorrect. A more accurate statement would
be that there are no published appellate decisions in which this definition has
been applied in criminal cases.
21
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, section 415 does
not contain a definition of “disturbing the peace.”14 Third, the concept “of
disturbing the peace as set forth in section 415 . . . is not applicable to the
meaning of the phrase ‘disturbing the peace of the other party’ as used in the
DVPA.” (Burquet, supra, 223 Cal.App.4th at p. 1146.) Fourth, there would
have been no reason to include a section 415 definition of “disturbing the
peace” in the CPO, since a violation of section 415 is a crime regardless of the
CPO. Fifth, in May 2017 when Appellant agreed to the terms of probation
reflected in the CPO, Nadkarni, supra, 173 Cal.App.4th 1483; Burquet,
supra, 223 Cal.App.4th 1140; and more than a half dozen of the other
authorities included in the string citation, ante, were established law without
14 Section 415 requires criminal punishment for: “(1) Any person who
unlawfully fights in a public place or challenges another person in a public
place to fight. [¶] (2) Any person who maliciously and willfully disturbs
another person by loud and unreasonable noise. [¶] (3) Any person who uses
offensive words in a public place which are inherently likely to provoke an
immediate violent reaction.”
22
dissent, disagreement, or criticism.15 Finally, consistent with his
presentation in the trial court, on appeal Appellant does not suggest a
definition that he considers applicable.
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
15 On appeal, Appellant tells us that the definition of “disturbing
the peace” in Nadkarni “has been limited by subsequent cases, such as
Curcio[, supra, 47 Cal.App.5th at p. 13].” With no further argument or legal
authority, Appellant has forfeited appellate consideration of the issue.
(Bryant, supra, 60 Cal.4th at p. 363.)
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.)
23
‘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
section 1203.097(a)(2) and whether the violation itself must also be a crime.
Only the former—here, a violation of the CPO—needs to be proven to
establish criminal contempt under section 166(c)(1)(B). The statute contains
no requirement that the violation of the section 1203.097(a)(2) order be a
crime, and we will not read one into the statute. The court issued the CPO
pursuant to section 1203.097(a)(2), which limits its application to cases in
which the defendant “is granted probation for a crime in which the victim is a
person defined in Section 6211 of the Family Code.” (Italics added.) Family
Code section 6211 is part of the DVPA (id., § 6200 et seq.) and defines
“ ‘Domestic violence’ ” as “abuse perpetrated against . . .” a person like Gloria
at the time the court issued the CPO. For this reason, the trial court did not
err in using a plain-meaning definition of “disturbing the peace” that is
consistently and uniformly applied in DVPA cases. As we explained at
part III.A.3.a., ante, “disturbing the peace” is not an element of the crime of
24
contempt of court for willfully violating a section 1203.097(a)(2) protective
order under section 166, subdivision (c)(1).
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 section 166, subdivision (c)(4),
required, in part, proof that the alleged violation of the CPO “involv[ed] an
act of violence or ‘a credible threat’ of violence.” As part of the note, the jury
25
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.)
Without an objection relating to the cellphone tracking,16 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.’ ”
Although these and the related questions in the jury’s note all had to do
with proof of violence for purposes of the enhancement (§ 166, subd. (c)(4)), on
appeal Appellant emphasizes that, based on the questions, at least some of
the jurors had been considering Appellant’s phone tracking as the underlying
violation of the CPO. In responding to the note, Appellant’s argument
continues, the trial court erred in failing to instruct the jury that it could not
base the violation of the CPO on phone tracking because the People did not
present any evidence of phone tracking at the preliminary hearing.
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
16 The reporter’s transcript indicates that the court and counsel discussed
the note, the various questions in the note, and a response proposed by the
court. Defense counsel “continue[d] the objection that [she had] from [two
days earlier]”—without articulating what it was—but there was no issue as
to surveillance or cellphone tracking two days earlier. The prosecutor agreed
to the court’s proposed response. The court’s minutes indicate that counsel
“stipulate[d]” to the court’s proposed response.
26
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 U.S. Const., 6th Amend.) As our
Supreme Court explained, this right to defend oneself “has two related
components, namely, the right to notice of the charges, and the right to
present a defense to those charges.” (Ibid.)
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 the
court allowed the jury to consider evidence of cellphone tracking that was not
presented at the preliminary hearing.
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
27
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
section 166(c)(1)(B). As relevant to Appellant’s lack-of-notice argument, the
element of the crime at issue is “a willful and knowing violation of a
protective order . . . [¶] . . . [¶] issued pursuant to [section 1203.097(a)(2)].”
(§ 166(c)(1)(B).)
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 § 166(c)(1)(B)).
17 For this reason, we reject Appellant’s suggestion that trial counsel’s
assistance was constitutionally ineffective by failing to object to the lack of an
instruction regarding Appellant’s tracking of Gloria’s cellphone.
28
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 appeal was
whether he was tried for an offense different from the one charged in the
information and supported by the evidence at the preliminary hearing. (Id.
at pp. 155-156, 164.) The information alleged that the defendant possessed a
“ ‘.38[-]caliber revolver’ ” at a specified location on a specified date, and at the
preliminary hearing witnesses described a specific incident on the specified
date during which the defendant possessed a .38-caliber revolver. (Id. at
pp. 156, 164.) At trial, in addition to the evidence of possession of a .38-
caliber revolver, a different witness (who was not present during the incident
described at the preliminary hearing) provided evidence, not mentioned at
the preliminary hearing, that on the same date—but at a different time with
different people present—the defendant possessed a different firearm, i.e., a
.357-caliber revolver. (Ibid.) The court allowed the prosecutor to amend the
information “to delete the words ‘.38 caliber’ ”;18 and in closing, the
prosecutor argued that the defendant possessed two different guns, one
during each of the two different incidents on January 8 and that the jury
could convict “on the basis of either one, as long as all the jurors agreed which
act the conviction was based upon.” (Id. at pp. 164-165, 169.) This was error.
The defendant had been “charged with only one violation . . . , and the
evidence presented at the preliminary hearing portrayed only a single
18 The trial court may allow an amendment of an information “for any
defect or insufficiency, at any stage of the proceedings.” (§ 1009.) That said,
section 1009 further provides that an information “cannot be amended . . . so
as to charge an offense not shown by the evidence taken at the preliminary
examination.”
29
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.
Appellant confuses whether there was a violation of the CPO with how
the CPO was violated. The charge against Appellant was under
section 166(c)(1)(B), which requires proof of a violation of a domestic violence
protective order; but section 166 does not require an allegation or a finding of
how the defendant violated the order. As applicable here, Appellant argues
that he had “no notice he was being charged with surveilling [Gloria] based
on tracking her phone.” However, at no time—not in the information, at the
preliminary hearing, or during the trial—did the People charge Appellant
with surveilling Gloria. At all times, consistent with the language of
section 166(c)(1)(B), the information charged Appellant only with violating
30
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 section 166(c)(1)(B); and
(2) “ ‘covers the timeframe(s) charged in the information’ ”—i.e.,
September 24, 2018.
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 section 166, subdivision (c)(4) allegation that
Appellant’s violation of the CPO “involved an act of violence” (at times,
19 Indeed, given that the first indication of cellphone tracking (i.e.,
surveillance of Gloria in violation of the CPO) came from Appellant’s
testimony during direct examination by his own attorney, Appellant cannot
now argue that he was unable to present a defense to a violation of the CPO
based on cellphone tracking.
31
subdivision (c)(4) allegation or subdivision (c)(4) enhancement allegation).20
Appellant argues that, for purposes of the prosecution’s case in establishing
the truth of this allegation, the trial court erred in allowing the jury to
consider (1) uncharged acts of violence against parties not subject to the CPO
(i.e., Frank) and (2) acts of violence that did not occur “contemporaneous[ly]
with” the violation of the CPO. We are not persuaded.
1. Background
A violation of section 166, subdivision (c)(1), is a misdemeanor.
However, for purposes of the subdivision (c)(4) allegation, as relevant to the
issues in this appeal, a second conviction of violating subdivision (c)(1)
subjects the defendant to punishment as a felony upon a showing of specified
conduct—namely, “an act of violence.” In this regard, without objection, the
court instructed the jury as follows: “If you find the defendant guilty of
violating a court order, you must then decide whether the People have proved
that the defendant’s conduct involved an act of violence.” (See CALCRIM
No. 2703.)
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
20 Section 166, subdivision (c)(4) provides in full: “A second or subsequent
conviction for a violation of an order described in paragraph (1) occurring
within seven years of a prior conviction for a violation of any of those orders
and involving an act of violence or ‘a credible threat’ of violence, as provided
in subdivision (c) of Section 139, is punishable by imprisonment in a county
jail not to exceed one year, or in the state prison for 16 months or two or three
years.” In the present action, the parties agreed to omit the reference to “ ‘a
credible threat’ ” on the basis that there was no evidence at trial of merely a
credible threat of violence.
32
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 NOTE NO. 3
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 section 166(c)(1)(B) and found
true the subdivision (c)(4) allegation that the contempt “involved an act of
violence.”
33
2. Law
“In the construction of a statute the intention of the Legislature . . . is
to be pursued, if possible[.]” (Code Civ. Proc., § 1859.) The provisions of the
Penal Code “are to be construed according to the fair import of their terms,
with a view to effect [the code’s] objects and to promote justice.” (§ 4.)
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 we may look to extrinsic aids, including the
ostensible objects to be achieved and the legislative history.’ ” (Id. at
p. 1106.)
The trial court’s interpretation of a statute—here, section 166,
subdivision (c)(4)—is a question of law which we review de novo. (People v.
Jimenez (2020) 9 Cal.5th 53, 61.)
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.
34
Notably, in his appellate briefing, Appellant concedes the “the lack of direct
authority” for his position.
According to Appellant, section 166, subdivision (c)(4) is unclear and
ambiguous, because it is susceptible to two constructions. More specifically,
Appellant reasons: Because the statute does not expressly state whether the
“act of violence” must be directed to the protected party (here, Gloria) and/or
to a nonprotected third-party (e.g., Frank), the statute is susceptible to
multiple interpretations. We describe the situation differently: Because the
Legislature did not require that the act of violence be directed to the
protected party in the subdivision (c)(4) enhancement, we will not read in a
limitation or requirement not included by the Legislature. There is no
ambiguity in the language used; the Legislature did not limit or otherwise
qualify the potential victim(s) of a probationer’s “act of violence” for purposes
of proving the subdivision (c)(4) enhancement.
Where, as here, a statute sets a general rule without including
exceptions or limitations (like § 166, subd. (c)(4)), “courts may not insert
qualifying provisions not intended by the Legislature.” (People v. Goodson
(1990) 226 Cal.App.3d 277, 281-282; see City of Cotati v. Cashman (2002) 29
Cal.4th 69, 75 [courts have “ ‘ “no power to rewrite the statute so as to make
it conform to a presumed intention which is not expressed” ’ ”].) Courts may
only decline to follow the plain meaning of a statute when to do so would
“frustrate[ ] the manifest purposes of the legislation as a whole or le[a]d to
absurd results.” (People v. Belleci (1979) 24 Cal.3d 879, 884; accord, People v.
Betts (2020) 55 Cal.App.5th 294, 298 [“We will follow th[e plain] meaning
unless doing so would lead to absurd results the Legislature did not intend”].)
Here, Appellant has not attempted to explain how an application of the plain
35
language of section 166, subdivision (c)(4), would either frustrate the
legislative purpose behind the statute or result in absurd consequences.
Appellant suggests that, because section 166, subdivision (c)(4), “is part
of a statutory scheme that is designed to protect domestic violence victims,”
the conduct enhancement allegation relating to violence must be directed
to the domestic violence victim. However, the premise for Appellant’s
argument is wrong; thus, his conclusion does not follow. The statutory
scheme associated with criminal contempt is found at section 166,
subdivision (c)(1) of the Penal Code at part 1 (“Of Crimes and Punishments”),
title 7 (“Of Crimes Against Public Justice”), chapter 7 (“Other Offenses
Against Public Justice”). More specifically, the legislative purpose behind
section 166—i.e., the crime of contempt—is “ ‘ “to enable the courts to
vindicate their authority and maintain the dignity and respect due to
them[.]” ’ ” (People v. Partee (2020) 8 Cal.5th 860, 874 (Partee) [§ 166,
subd. (a)(6) (refusal to comply with a valid subpoena)]; accord, Gonzalez,
supra, 12 Cal.4th at p. 816 [§ 166, subd. (a)(4) (willful disobedience of an
“ ‘order lawfully issued by any court’ ”)]; In re McKinney (1968) 70 Cal.2d 8,
12 [former § 166, subd. (6) (refusal to answer questions at trial); see current
§ 166, subd. (a)(6)].)
We agree with Appellant that “[t]he purpose of
section 166[, subdivision ](c)(4) is to enhance punishment for repeat
offenders,” but it is directed to repeat offenders of section 166,
subdivision (c)(1), not repeat offenders of the crime that resulted in the
criminal protective order that is subject to section 166, subdivision (c)(1). We
likewise agree with Appellant that, for a true finding on a subdivision (c)(4)
allegation, the evidence must establish that the “act of violence” be part of
the violation of the subdivision (c)(1) protective order. As applied in the
36
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 section 166(c)(1)(B), the
violence required to establish a true finding of a subdivision (c)(4) allegation
is not linked (or limited) to the domestic violence victim identified in the
criminal protective order. Section 166, subdivision (c)(1)—which deals with
contempt, not domestic violence—identifies six separate types of criminal
protective orders subject to contempt (§ 166, subds. (c)(1)(A)-(F)):
A. 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;
B. 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);
C. 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;
D. 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;
E. 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
37
specified behavior that was necessary to effectuate the protective order
at issue (§ 166, subd. (c)(1)(E))—which may involve, but is not limited
to, domestic violence; and
F. 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 section 166, subdivision (c)(1) criminal
protective orders to which the subdivision (c)(4) allegation applies.
Appellant’s argument fails to consider that the subdivision (c)(4) allegation
also applies to at least two of the types of criminal protective orders that do
not involve victims of domestic violence: a protective order issued in response
to a showing of intimidation of a witness (§ 166, subd. (c)(1)(A)); and a
protective order issued after a conviction in a criminal proceeding of a sexual
offense involving a minor victim (§ 166, subd. (c)(1)(D)). In short, the same
proof (“an act of violence”) is used to establish a subdivision (c)(4)
enhancement for all six types of protective orders under section 166,
subdivision (c)(1), without consideration of whether the beneficiary of the
protective order is a victim of domestic violence.
b. Violence Contemporaneous with the Violation of the CPO
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
38
the same time as the violation of the protective order. As applicable here,
according to Appellant, section 166, subdivision (c)(4) requires that the
“violence must be contemporaneous with the conduct that violates the CPO.”
Although Appellant repeats that statement at least three times in his
opening brief, he does not present any argument or authority in support of
his contention.
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.’ ”]; Cal. Rules of Court,
rule 8.204(a)(1)(B) [in an appellate brief, the party is required to “support
each point by argument and, if possible, by citation of authority.”].) In any
event, even if we were to consider the merits of this argument, the result
would be no different since, as we explained at part III.D.3.a., ante, the
instruction the court gave was not erroneous.
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
39
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 section 166(c)(1)(B) violation
and the specific act of violence for purposes of the section 166,
subdivision (c)(4) enhancement.
For purposes of the section 166(c)(1)(B) contempt, the court instructed
the jury—consistent with CALCRIM No. 3500—that it had to agree as to
which act violated the CPO for purposes of contempt. For purposes of the
subdivision (c)(4) enhancement, however, the People did not elect a specific
“act of violence”; and Appellant did not request a unanimity instruction.
2. Law
Under the California Constitution, a unanimous jury verdict is
required to convict a person of a crime. (Cal. Const., art. I, § 16; People v.
Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) In particular, the jury must
agree unanimously that the defendant is guilty of a specific crime. (People v.
Diedrich (1982) 31 Cal.3d 263, 281.)
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.)
40
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 foregoing, “no unanimity instruction is required if the
case falls within the continuous-course-of-conduct exception, which arises
‘when the acts are so closely connected in time as to form part of one
transaction . . . .’ ” (Jennings, supra, 50 Cal.4th at p. 679; accord, People v.
Hernandez (2013) 217 Cal.App.4th 559, 572 (Hernandez).)
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].)
21 For example, unanimity is required in a forgery case where the
prosecution alleges forgery of multiple documents under a single count, but
not where the evidence shows different acts of forging and uttering involving
a single instrument. (People v. Sutherland (1993) 17 Cal.App.4th 602, 618-
619.)
41
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
42
police had been called, Appellant again lifted Gloria, placed her over his
shoulder, and carried her down Frank’s driveway toward the street, as she
screamed to be put down.
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
22 Appellant argues on appeal that trial counsel’s assistance was
constitutionally ineffective by failing to object to the lack of a unanimity
instruction for the subdivision (c)(4) enhancement allegation. We disagree.
Trial counsel was not constitutionally ineffective by failing to request a
unanimity instruction that was not required based on the evidence in the
case.
43
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.)
Appellant’s other two authorities are inapplicable, because neither
potentially involved an argument that the defendant’s acts were part of a
continuous course of conduct. (People v. Wesley (1986) 177 Cal.App.3d 397,
399, 401 [the jury found the defendant guilty of possessing for sale “cocaine or
heroin”; without a unanimity instruction “some of the jurors might [have]
base[d] their verdict on the cocaine while the other jurors base[d] theirs on
the heroin”]; People v. Crawford (1982) 131 Cal.App.3d 591, 593-595, 599
[the jury found the defendant guilty of one count of possession of a firearm
by an ex-felon; the evidence established two firearms in the defendant’s
bedroom during one search and two different firearms during a second search
of another person’s bedroom later the same day; a unanimity instruction was
required, because “the acts of possession were not factually identical” in
terms of location].) In contrast to Wesley and Crawford, in the present case,
in establishing the requisite “act of violence” to constitute the
subdivision (c)(4) enhancement, the prosecution presented evidence of
44
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.
The Attorney General agrees. As we explain, because the change in the law
ameliorates this portion of Appellant’s sentence and the judgment in this case
is not yet final, we conclude that the new law is retroactive and will modify
the judgment accordingly.
45
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
section 667.5, subdivision (b). Based on this admission, at sentencing, the
trial court added two consecutive one-year terms—one for each of the two
prison priors under former section 667.5, subdivision (b).
Effective January 1, 2020, Senate Bill No. 136 amended section 667.5,
subdivision (b). (Stats. 2019, ch. 590, § 1.) By this revision, the Legislature
“amend[ed] section 667.5, subdivision (b) to limit its prior prison term
enhancement to only prior prison terms for sexually violent offenses, as
defined in Welfare and Institutions Code section 6600, subdivision (b).”
(People v. Jennings (2019) 42 Cal.App.5th 664, 681; accord, People v. France
(2020) 58 Cal.App.5th 714, 718 [same], 729 [“Senate Bill 136 eliminated an
enhancement for defendants who served prior prison terms for non-sexually
violent offenses”].)
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
46
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.)
In short, “where the amendatory statute mitigates punishment and there is
no saving clause, the rule is that the amendment will operate retroactively so
that the lighter punishment is imposed.” (Id. at p. 748.)
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 § 667.5, subd. (b)].)
3. Analysis
“By eliminating section 667.5, subdivision (b) enhancements for all
prior prison terms except those for sexually violent offenses, the Legislature
clearly expressed its intent in Senate Bill No. 136 to reduce or mitigate the
punishment for prior prison terms for offenses other than sexually violent
offenses.” (People v. Jennings, supra, 42 Cal.App.5th at p. 682.) Therefore,
we conclude, and the parties agree, that under the Estrada rule, Senate Bill
No. 136’s amendment to section 667.5, subdivision (b) applies retroactively to
all cases not yet final as of its January 1, 2020, effective date. Because
Appellant’s case was not final as of that date, he is entitled to the
ameliorative benefit of Senate Bill No. 136’s amendment to section 667.5,
subdivision (b).
47
Accordingly, we will modify the judgment by striking the two one-year
prior prison term sentencing enhancements under section 667.5,
subdivision (b).
IV. DISPOSITION
The two one-year sentencing enhancements under section 667.5,
subdivision (b) are stricken from the judgment. In addition, paragraph 1 of
the abstract of judgment is amended to show that Appellant was convicted by
a jury—i.e., not as part of a plea. The court shall forward an amended
abstract of judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
48
Filed 6/15/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076458
Plaintiff and Respondent,
v. (Super. Ct. No. SCN393022)
MARK AARON SORDEN, ORDER CERTIFYING
OPINION FOR PUBLICATION
Defendant and Appellant.
THE COURT:
The opinion in this case filed May 18, 2021, and modified on June 15,
2021, was not certified for publication. It appearing the opinion as modified
meets the standards for publication specified in California Rules of Court,
rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is
GRANTED.
IT IS HEREBY CERTIFIED that the opinion as modified meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
ORDERED that the words “Not to Be Published in the Official Reports”
appearing on page one of said modified opinion be deleted and the opinion
herein be published in the Official Reports.
McCONNELL, P. J.
Copies to: All parties
2