People v. Lopez, 240 Cal. App. 4th 436, 192 Cal. Rptr. 3d 585, 2015 Cal. App. LEXIS 803 (Cal. App. 1st Dist. 2015)
The defendant was convicted of stalking and appealed claiming that there was not enough evidence to establish his conduct showed an intent to carry out any violence against the victim. He also claimed that because he did not intend to carry out such violence or to instill fear in the victim, his actions were protected by the First Amendment. The appellate court reviewed whether there was enough evidence under the “substantial evidence” test, which is essentially used to determine if the evidence provided in the lower court was reasonable and credible. The defendant, however, asserted that because his claim was based on his conduct being protected by the First Amendment, the court had to complete an entirely separate “independent review” of the evidence as well. In making this argument, he relied on a previous case that concerned a criminal threat, but which provided no reason for the court to carry out an independent review to a stalking conviction. The court did not find it necessary to determine whether the “substantial evidence” or “independent review” test would be applied, as it would have affirmed the defendant’s stalking conviction under either test alone. Additionally, the defendant noted that under the California stalking statute that was used in his trial in the lower court, a “credible threat” to the victim was required, which could be implied from a course of conduct over a period of time. The defendant maintained there was no evidence of a “credible threat” by way of a course of conduct. The court disagreed because evidence had been presented of letters and packages sent to the victim’s home, of invitations to “healing” ceremonies, and of the defendant’s continued contact with the victim after police involvement. Evidence also showed that the defendant did not live in the victim’s neighborhood, yet he repeatedly appeared in locations very close to her home. The court decided these facts formed a course of conduct adequate to imply that the defendant’s actions posed a “credible threat” to the victim. The court clarified that intent to scare or hurt the victim is rarely proven by direct proof and must usually be inferred from all the facts and circumstances created by the evidence given. The court also stated that these credible threats pose a danger to society and are unprotected by the First Amendment.
Abrahams v. Miller, 2011 Cal. App. Unpub. LEXIS 5361
The trial court issued a restraining order requiring the defendant to stay at least 100 yards away from the victim, her husband, and the couple’s home, vehicles, and workplaces. The defendant argued that there was no sufficient evidence to support an injunction or to show that a reasonable person in the victim’s position would have suffered substantial emotional distress. The court disagreed. It based its decision in part on the size disparity between the victim and defendant, a six foot two inches and 265-pound man and a woman of only five feet, five inches. It also incorporated the defendant’s threatening pattern of conduct over a period of several months, including riding his bicycle close to her when she was on the nearby college campus, slowing down almost to a stop, and smirking, glaring and staring at her, on 15-20 separate occasions. Lastly, the defendant argued that because the trial court “found” that Miller’s conduct did not constitute a “credible threat of violence,” the victim could not have reasonably feared for her safety. The court rejected this argument, as well. The trial court had checked the box indicating that the fee for a restraining order was waived because the order was based on stalking but did not check the box indicating the fee was waived because there was a credible threat of violence. The court found that this was not the same thing as an affirmative finding that the defendant did not make a credible threat of violence. The trial court could have, for example, simply not reached the issue of whether he made a credible threat of violence because it already determined that the service fee could be waived because the restraining order was based on stalking. The issuance of the restraining order was affirmed.
Jones v. State, 2011 Ga. App. LEXIS 638
Defendant was found guilty of aggravated stalking under O.C.G.A. § 16-5-90(a), among other crimes. The victim, who had divorced the defendant, moved in with her daughter, and the defendant continuously harassed the victim. She then obtained a good behavior bond against him. He continued to appear at the daughter’s home, called and texted the victim, removed things from the victim’s daughter’s home, and struck the victim twice. The defendant appealed his stalking conviction on the basis that there was a fatal variance between the indictment and the proof at trial. The court rejected this argument and explained that although O.C.G.A. § 16-5-90(a) failed to provide a definition of the term “surveillance,” the term was readily understood by people of ordinary intelligence as meaning a close watch kept over someone or something. In turn, the indictment put the defendant on notice that driving to, parking at, and sitting outside the victim’s residence constituted “surveillance” and that such conduct was a violation of the good behavior bond. The conviction was affirmed.
Keaton v. State, 2011 Ga. App. LEXIS 681
Defendant was convicted of aggravated stalking under O.C.G.A. § 16-5-91. After his wife filed for divorce, the court issued an interlocutory order enjoining him from going to the marital residence except to retrieve or return the children for visitation. The defendant violated the order on several occasions, including one occasion when he entered the victim’s house without her permission and demanded sex. The defendant appealed the conviction, contending that the evidence did not support the conviction for aggravated stalking. Under O.C.G.A. § 16-5-91, a person commits aggravated stalking “when he or she, in violation of an order, a peace bond, an injunction or a probation, parole or bond condition ‘in effect prohibiting the behavior described in this subsection,’ follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” The defendant argued that the interim order relied upon by the prosecution was directed toward preserving the victim’s right to occupy the marital residence and preventing his interference with that right, but it was not a personal protective order or an order otherwise preventing stalking behavior as required under the statute. The court agreed because the divorce order the prosecution relied on kept him from the home he had shared with the victim—not the victim—so it did not “in effect” bar statutorily prohibited conduct. The court reversed the defendant’s aggravated stalking conviction.
F.L. v. L.A.B., 2011 N.J. Super. Unpub. LEXIS 1821
Following a history of abuse, the plaintiff daughter was granted a permanent restraining order against her father, the defendant. Although the daughter was 29 years old and had not lived with her father for over 25 years, he had abused her from the age of six until she was thirteen years old. She had also received multiple unwanted letters, telephone calls, communications, and unannounced visits from the defendant once she attempted to move away from him. The defendant threatened that he would continue to disturb her until she allowed him to have a relationship with her. The defendant appealed the restraining order on the grounds that he and his daughter had not cohabited for more than two decades and that his conduct did not constitute domestic violence under N.J.S.A. 2C:25-29(b)(4), the Prevention of Domestic Violence Act. Under the Act, a “victim of domestic violence” is defined as: any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member. Domestic violence is defined as “the occurrence of one or more” of a list of enumerated acts, which include harassment and stalking. The crux of the case is whether the defendant should be considered a “former household member,” and the court confirms that he is. The defendant’s second contention, that his behavior did not constitute harassment or stalking, was also rejected by the court. Under N.J.S.A. 2C:12-10(b), a person commits stalking “if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.” Applying these elements, the court concluded that the defendant’s repeated efforts to track down his daughter and to interfere with her life constituted acts of stalking. The defendant contended that his conduct was benign and, in particular, that it was not shown that he had committed any wrongful acts “repeatedly.” The court denied this argument because there were two or more occasions of stalking behavior in the historical context of the case. The trial court’s decision was affirmed.
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