Filed 1/18/00

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. Hugh Rose, III, Judge.

Fay Afra, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Clayton S. Tanaka and Brian G. Smiley, Deputy Attorneys General, for Plaintiff and Respondent.

By information filed in Stanislaus County Superior Court on February 19, 1997, appellant, Ralph David Borrelli, was charged with the burglary, arson, and vandalism of a dental office located at 3025 McHenry Avenue in Modesto, California in violation of Penal Code sections 459, 451, subdivision (c), and 594, subdivision (b)(2), respectively. In addition, he was charged with the stalking of his estranged wife, Annette Borrelli, on or about July 21, 1995, and December 22, 1996, in violation of section 646.9, subdivision (a). Appellant entered not guilty pleas to the charges and requested a jury trial in the matter.

The burglary charge was subsequently set aside in response to appellant's section 995 motion.

The matter then proceeded to trial on the remaining counts. The jury found appellant guilty of arson of a structure as a "lesser included offense" of count II, vandalism and stalking.

On May 23, 1997, imposition of sentence was suspended and appellant was placed on three years probation.

Notice of appeal was timely filed on June 9, 1997. Here, appellant raises various issues related to the constitutionality of the stalking statute, section 646.9; the sufficiency of the evidence to support his conviction of that offense; various instructions given in this case; and the trial court's refusal to allow the read back of defense counsel's closing argument. We affirm.

As pertinent to the issues presented on appeal, the facts show that appellant and Annette Borrelli were married in September of 1986 and separated in July of 1995 after she obtained a restraining order against him. During most, if not all of the time they were together, Ms. Borrelli worked as an office administrator for Modesto Dental Group located at 3025 McHenry.

On September 21, 1995, Ms. Borrelli went to Merced to visit her parents. She was getting ready to leave to meet appellant at her Turlock home when he arrived, uninvited, to pick up their children. Ms. Borrelli was surprised to see appellant because the plan had been for him to pick up the children at her home.

While Ms. Borrelli was putting the children in appellant's car, he was threatening her and telling her that he was going to kill both her and her parents. Before she could finish strapping the children in, appellant began backing up his truck as though he was going to run over her feet. He then left with the children.

Ms. Borrelli left her parents' home about 45 minutes later without telling her parents about the threats. She was too afraid to tell them because her father was in very poor health.

A few hours later, appellant arrived unannounced at Ms. Borrelli's Turlock home. Appellant was very angry because the children had fallen asleep and he had nowhere to take them. He stomped on her foot, kicked her, and screamed obscenities at her. He then took off with the children still in the car.

Ms. Borrelli decided to talk to her brother-in-law about the situation because appellant frightened her. Later that day, she called the police.

On December 2, 1995, appellant came to pick up the children. Ms. Borrelli was not home at the time as she had left the children with a babysitter. A short time later, appellant showed up at the salon where Ms. Borrelli was getting her hair done. He was very angry and called her names. He then left.

Appellant contacted her a few hours later and complained that the clothes she had packed for the children were inappropriate. He wanted new clothes. So, Ms. Borrelli hurried home and packed some clothes. She had just sat down in her car to retrieve something when she felt it move and realized that appellant had rear-ended her. He hit her car hard enough to cause Ms. Borrelli's neck to go back "and [cause] a good feeling in it."

Ms. Borrelli had been talking to her girlfriend on her cell phone at the time. She told her girlfriend what had happened and expressed her fear of appellant. Her girlfriend called the police while Ms. Borrelli locked her car doors.

Appellant came up and began banging on the door. He was very angry and hostile when he told her he was going to kill her. He left with the children before the police arrived.

Appellant came back later that evening to return the children. As Ms. Borrelli went to get the baby, appellant, very angry, "kind of went towards [her] to grab [her] on the neck." She ran into the house with the baby, locked the door, and called the police. She told appellant to leave their little girl at the front door with her things and to leave because the police were on their way. As soon as she saw him get in his vehicle, she opened the door and pulled her little girl inside.

Appellant was gone by the time the officers first arrived but returned in time to tell them his side of the story. The incident ended with appellant being taken to jail.

Then, on April 15, 1996, appellant telephoned the house and their daughter answered. Ms. Borrelli was standing right next to her when appellant said something that upset their daughter. Ms. Borrelli got on the phone and appellant told her he was going to kill her. She hung up the phone but did not report the incident to the police at that time.

She telephoned the police the very next day after receiving another phone call from appellant. It was shortly before 6 a.m. when appellant called and told her today was the day he was going to kill her.

One of the times he threatened to kill her, he said he would blow her head off with a gun. She was very frightened and became a nervous wreck each time she was threatened. She knew appellant owned a couple of firearms and she had seen ammunition around the house during the time they were together. He told her that he kept one of his guns in his car.

To her knowledge, the only other person appellant had ever threatened to kill was himself. Ms. Borrelli had contacted the police more than once when this occurred since appellant seemed likely to carry out the threat.

On May 1, 1996, she moved to another location and did not give appellant her new address. From that point on, she and appellant exchanged the children at the Turlock Police Department.

On May 7, 1996, appellant showed up at Ms. Borrelli's place of employment. He barged into her office, called her several names, and blamed her for his inability to have surgery on his arm. She did not know why he was blaming her. As far as she knew, appellant was working with some type of program that was going to pay the costs of the surgery.

During cross-examination, defense counsel suggested that appellant may have blamed her because she was withholding money he needed for his operation. Ms. Borrelli said there had been no discussion about money at the time of that incident. She said the discussions about money took place in July as part of their dissolution proceeding.

Defense counsel then asked whether appellant had asked her to free up some funds so he could have them. She insisted appellant never made that request in May.

In response to further defense questioning, Ms. Borrelli said the family home was subsequently sold and that there was no second home during the time she and appellant were together. Defense counsel tried to ask about another home that was put in her parents' names but the trial court advised counsel that it was going to sustain all future objections directed at questions regarding the dissolution proceedings.

When asked at trial whether she wanted to see her husband convicted, Ms. Borrelli replied that she wants him to quit bothering her and to get the help he needs. She wanted him held accountable for the things he had done to her. She denied ever threatening to harm or kill appellant.

Mr. Patterson also testified for the prosecution. He said he was in Modesto visiting relatives on December 22, 1996. Sometime after 10 p.m., he found himself trying to jump start a car in the Mervyn's parking lot on McHenry with his fiancée, her sister Tina, and her husband Frank Solorio.

A short time later, Mr. Patterson and Frank Solorio noticed a fire across the street. Neither man heard a crash but Mr. Patterson thought that might have been because they had gotten their car started.

The two men ran over there to investigate and found a burning car smashed into a building. They contacted appellant, who was the only person nearby, and asked if he knew what happened. Appellant said he did as it was his car. They asked appellant if he had lost control of the car. Appellant said no, he was making a statement to his girlfriend who worked in the building. Appellant left before the firefighters arrived on the scene.

Appellant testified that he and Annette separated on July 7, 1995, and that a dissolution action was pending. He said they were engaged in a property dispute over two houses, a lot of money and a payroll company that they had started in 1989. Appellant accused Annette of keeping over $30,000 from him and commented that $64,000 in cash had disappeared.

Appellant said Annette had not accurately portrayed the events that took place on May 7, 1996. He explained that he had broken his arm in five places and had been to the hospital that morning for a "pre-op" examination. He was scheduled for surgery to repair his wrist.

He went to Annette's office and asked her if they could please get their dissolution finalized so he could get the stocks and bonds out of his name. He explained that he could not get the surgery done so long as the stocks and bonds remained in his name. He said Annette's response was "I'll see you in court. Go talk to your lawyer." Appellant denied threatening her.

On cross-examination, appellant admitted to "probably" having used foul language and speaking in a sufficiently loud voice so that everyone present could hear. He said he was very upset when he learned that he was not going to be able to have the surgery.

Appellant was then asked about the September 16, 1995, incident. He did not recall what happened on that date. It was not until defense counsel specifically asked whether appellant heard Annette accuse him of having stomped on her foot and kick her that appellant denied that those things had occurred.

Appellant had no recollection of the events of April 15, 1996, either. When defense counsel asked appellant if he threatened to kill Annette on that date, appellant replied, "I don't believe so."

He denied threatening to kill her the very next day. Later, he said he had no recollection of the events of April 16th ¾ even after having read the police report of the incident.

Appellant admitted having feelings of animosity against Annette but denied having ever threatened to kill her ¾ particularly with a gun. By the time of these events, he had gotten rid of his deer rifle and handguns. His handguns were with his brothers who had agreed to keep them for him.

Appellant also testified that Annette was not afraid of him. On cross-examination, however, he admitted that she had moved and that he did not know her new address. He volunteered that he could have easily learned of it if he was really stalking her by simply following her after they exchanged the children.

He also denied having ever threatened to kill himself. He did, however, clearly recollect a phone conversation he had with one of Annette's co-workers. He said Annette would not come to the phone so he told the co-worker to "tell Annette if she won't come to the phone, what does she want me to do, go out and kill myself?" When counsel asked if he was serious, appellant replied, "I'm still alive."

Appellant did say that Annette had threatened to kill him five to ten times. She had also threatened to have him thrown in prison for the rest of his life although he did not take these threats seriously. He did call the police on her once after she had beaten him with a broom.

Appellant also spoke of the events of December 22, 1996. He said he had been drinking and went to Mervyn's to do some Christmas shopping. He got upset when he discovered he did not have enough money to pay for his children's' presents. He decided that, since he could not get the money his wife owed him, he might as well give her the car too; particularly since it was having a lot of mechanical problems.

So, he drove it through the front doors of his wife's workplace. He then got out of the car (which he left running) and sat on a curb 25 yards away to wait for the police.

While seated, he looked up and saw the car begin to burn. He initially said he first saw flames in the right front section of the car before they spread to both the inside and outside of the car. Later, he said the fire started in the passenger compartment. Still later, he admitted that the photographs of the car did not show any fire damage to the front of the car.

Appellant denied setting the car on fire. He said he did not want it to burn since it was in good shape other than the engine, which needed replacement, and the leaky transmission. In that appellant is not challenging his arson conviction on appeal, we will not further address the testimony regarding that charge.

Respondent believes the statute does not infringe on appellant's right of free speech since it permissibly restricts unprotected speech that takes the form of serious threats made under such circumstances that there is a reasonable tendency to produce in the victim a fear that the threat will be carried out. Respondent cites Watts v. United States (1969) 394 U.S. 705, 706-708; People v. Hines (1997) 15 Cal.4th 997, 1061; In re M.S. (1995) 10 Cal.4th 698, 710; and People v. Fisher (1993) 12 Cal.App.4th 1556, as support for this position.

We begin our analysis by examining the constitutional guarantees in question. The First Amendment to the United States Constitution states: "Congress shall make no law … abridging the freedom of speech…." This fundamental right is applicable to the states through the Due Process Clause of the Fourteenth Amendment. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 133-134 citing Gitlow v. New York (1925) 268 U.S. 652, 666.) Article I, section 2, subdivision (a) of the California Constitution provides that: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."

While these guarantees are stated in broad terms, "the right to free speech is not absolute." (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at p. 134, citing Near v. Minnesota (1931) 283 U.S. 697, 708; and Stromberg v. California (1931) 283 U.S. 359.) As our high court has acknowledged:

Section 646.9, as it read in 1996, provided that:

As appellant acknowledges, "the state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of the First Amendment protection." (In re M.S., supra, 10 Cal.4th at p. 710, citing People v. Mirmirani (1981) 30 Cal.3d 375, 388, fn. 10; see Watts v. United States, supra, (1969) 394 U.S. at pp. 706-708.) The M.S. court explained the reasoning behind this premise as follows:

Appellant's arguments reflect his misunderstanding of the stalking offense and the rights at stake. In order to be penalized under section 646.9, subdivision (a), the defendant must willfully engage in the prohibited conduct with the intention of inflicting substantial emotional distress on the person to whom the comments were directed in violation of the latter's constitutionally guaranteed rights to pursue safety, happiness, and privacy as guaranteed by our state and federal constitutions; the threats must be made with the apparent ability to carry them out so as to cause the person who is the target of the threat to reasonably fear for his or her safety; and the victim must actually suffer substantial emotional distress. Thus, contrary to appellant's characterization of the statute, someone who is merely "blowing off steam," without more, could not be found to have violated the statute. Also contrary to his arguments, comments regulated by section 646.9 are not made in a manner in which no one will be hurt. As noted, the victim must actually suffer substantial emotional distress. This type of threat truly poses a danger to society and is therefore a proper subject for regulation. (See In re M.S., supra, 10 Cal.4th at p. 70; People v. Mirmirani, supra, 30 Cal.3d at p. 388, fn. 10.)

In any event, appellant's arguments miss the mark. Section 646.9 does not regulate the content of speech insomuch as the manner in which the communication is made. While the right to free speech guarantees a powerful right to express oneself, it does not include the right to repeatedly invade another person's constitutional rights of privacy and the pursuit of happiness through the use of acts and threats that evidence a pattern of harassment designed to inflict substantial emotional distress. The aim and effect of this statute are not to suppress speech, but to protect individuals in the exercise and enjoyment of their constitutional rights from invasive, oppressive conduct that infringes on those rights. (See In re M.S., supra, 10 Cal.4th at p. 722 [same but applied to section 422.6]; In re Steven S. (1994) 25 Cal.App.4th 598, 606-609 [same but applied to section 11411].)

Appellant correctly notes the absence of a statutory requirement that the person doing the harassing actually intend to carry out the threat. But he has failed to cite any legal authority that mandates inclusion of such a requirement before a statute governing conduct directly and speech coincidentally can be upheld against constitutional attack. Indeed, the courts have upheld various statutes regulating expressive conduct against constitutional attack despite the absence of such a requirement. (See, e.g., People v. Hines, supra, 15 Cal.4th at pp. 1060-1061 [constitutionality of section 69 which prohibits "attempts, by means of any threat or violence, to deter or prevent an executive officer from performing his/her lawful duties" so that said conduct can be considered as a factor in aggravation in a death penalty case]; People v. Falck (1997) 52 Cal.App.4th 287, 295 [section 646.9] and cases cited therein; In re Steven S., supra, 25 Cal.App.4th at pp. 606, 608 [prohibition of racial, ethnic and religious terrorism under section 11411, subdivision (c)].)

In sum, section 646.9 does not infringe on the free speech rights guaranteed by the Constitution.

Respondent agrees with the Falck court's conclusion that "safety," within the meaning of section 646.9, is readily understandable and thus not subject to an attack for vagueness. Respondent also points out that the word is one of common usage and meaning and one which was declared to be readily understandable in a slightly different legal setting in In re Joseph G. (1970) 7 Cal.App.3d 695, 703-704.

Respondent insists appellant cannot succeed on his overbreadth claim because he cannot show the statute inhibits a substantial amount of protected speech ¾ a showing which In re M.S., supra, 10 Cal.4th at p. 710 requires him to make in order to prevail on this type of claim. Nor does respondent believe that the "safety" referenced in the statute must be limited to physical safety as urged by appellant. He opines that threats directed at killing one's dog or burning down their house would fall within the scope of section 646.9 even though they are directed at a person's chattels rather than one's physical well being. Respondent believes reading the statute in this manner would further the strong public policy that every person has the right to be protected from fear and intimidation.

Overbreadth is a doctrine that addresses a statute's reach, not its clarity, the latter being the subject of the vagueness doctrine. Recently, our Supreme Court had the following to say when speaking on the subject of overbreadth:

We do not find the statute to be unconstitutionally overbroad. The statute does not encompass every kind of threat as asserted by appellant. The threats in question must be made by one who "willfully, maliciously, and repeatedly follows or harasses" another and with the intent to place the victim in reasonable fear of his or her safety. (§ 646.9, subd. (a).) The threat must also be accompanied by a "knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose." (§ 646.9, subd. (e).) This course of conduct must be such as would "cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person." (Ibid.) Finally, the "credible threat" must be comprised of "a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant ha[ve] the intent to actually carry out the threat...." (§ 646.9, subd. (g).) Threats of this nature clearly present a danger to society. Section 646.9 clearly limits its application to this type threat that finds no protection under the First Amendment. As such, it does not implicate a substantial amount of constitutionally protected conduct and appellant's claim of overbreadth must fail.

Appellant asks us to limit the term "safety" to mean only physical safety. In advancing his claim, appellant directs our attention to only those offenses that the Legislature has specifically defined to include threats of violence, death or great bodily injury. (§§ 76 [threatening certain public officials], 137 [influencing testimony or information given to a law enforcement official], 139 [dissuading a witness or victim] 601 [trespass].) Since the statute in question does not contain such language, these cases provide no authority for the position advanced by appellant. What is far more telling is the fact that the Legislature did not see fit to include language of violence in the version of section 646.9 in place when appellant committed these offenses. Indeed, with the 1994 amendment to the statute, the Legislature intentionally deleted the "reasonable fear of death or great bodily injury" language and replaced it with the "threat in reasonable fear for his or her safety" language that has remained a part of section 646.9 ever since. (See Stats. 1993, c. 581 (A.B. 1178).) Consequently, this claim must fail as well.

We turn our attention then to appellant's vagueness claim. The court in People v. Falck, supra, 52 Cal.App.4th 287, faced essentially the same vagueness challenge to the constitutionality of section 646.9 as those presented for our consideration. (Id. at p. 290.) We find the Falck court's reasoning most persuasive and, accordingly, quote it at length:

We too rely on this reasoning to find no constitutional vagueness in the use of the term "safety" in section 646.9, subdivision (a).

Respondent finds no merit to this argument since the evidence presented at trial clearly showed repeated incidents of appellant following and harassing Annette. Respondent cites a number of cases that have upheld stalking convictions based on acts either similar to, or the same as, those performed by appellant in this case.

When faced with a claim of insufficiency of evidence:

We must read the "course of conduct" element of this offense in light of the other provisions of the statute of which it is a part. As noted previously, subdivision (a) of section 646.9 provides that any person who "willfully, maliciously, and repeatedly … harasses another person" is guilty of a crime. "Harasses," is defined to mean "a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose." (§ 646.9, subd. (e).) The "course of conduct" referenced in subdivision (e) "must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person." (Ibid.) It must also involve "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." (§ 646.9, subd. (f).) Constitutionally protected activities, however, are not to be considered a part of this course of conduct. (Ibid.)

When the evidence is viewed in light of these definitions and the aforementioned standard of review, it is clear the People satisfied their burden of showing a course of conduct existed. Appellant's course of conduct, without a doubt, tormented Annette. It makes no difference that he had a right to visit his children and that many of these events occurred during the exchange of the children. His threats, occasionally of death, and his assaultive behavior served no legitimate purpose. These actions were also of the type to cause a reasonable person to suffer substantial emotional distress and, in fact, did cause Annette to suffer such distress. They were also comprised of a series of acts committed on various dates within those charged in the information. The jury could also find, quite reasonably, that appellant's actions were done with a continuity of purpose ¾ simply to harass his estranged wife.

It is not clear, but appellant seems to be arguing that there was no continuity of purpose because a number of the exchanges took place without anything of consequence occurring. If this is his argument, it too is rejected. First, there is nothing in the language of the statute that would suggest, let alone dictate, that the stalking conduct must occur during every contact. Indeed, interpreting it in this manner would be contrary to its purpose for it would allow a person who repeatedly harassed another to evade prosecution so long as there was one uneventful contact between the harasser and the victim to break the chain of harassment. In any event, no evidence was presented to show there were any other contacts between appellant and Annette during this time frame ¾ uneventful or otherwise. While appellant points to the number of visits that would have occurred under his visitation schedule, there is no evidence to show he adhered to that schedule.

To the extent that appellant's argument suggests that no pattern of conduct occurred because his unlawful acts were isolated events over an extended period of time, it is likewise rejected. While these acts did cover a 15- month period, they were not so isolated in time as to take them out of the statute's coverage. There were two qualifying encounters on September 15, 1995, three qualifying encounters on December 2, 1995, one qualifying event on April 15, 1996, another on April 16, 1996, one on May 7, 1996, and the last on December 22, 1996. We believe nine qualifying events in a fifteen-month period are sufficient to support appellant's conviction under section 646.9. (See People v. McCray (1997) 58 Cal.App.4th 159, 168-171 [multiple acts of harassment on a single day can support § 646.9 conviction]; People v. Heilman (1994) 25 Cal.App.4th 391, 399 [same].)

Respondent believes appellant was not deprived of his right to testify or present a defense since the trial court's evidentiary rulings properly complied with the rules of evidence. Appellant's real complaint, as respondent sees it, is that he was prevented from presenting a greater amount of evidence that tended to show his estranged wife was biased against him.

We begin with appellant's right to confrontation claim. The United States Supreme Court, as well as our own high court, have "'"recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination."'" (People v. Cooper (1991) 53 Cal.3d 771, 816, quoting Davis v. Alaska (1974) 415 U.S. 308, 316-317, citing Greene v. McElroy (1959) 360 U.S. 474, 496.)

In making this determination, one looks to such factors as "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Delaware v. Van Arsdall (1986) 475 U.S. at p. 684.)

Here, the record shows appellant's trial counsel was trying to question Ms. Borrelli about the ongoing financial discussions in her and appellant's dissolution action when the prosecutor voiced an Evidence Code section 352 objection. Defense counsel countered that it went to establish the witness's bias. The court then responded, "Objection overruled. I mean, sustained. I think under 352 we're getting kind of off the mark here."

A short time later, defense counsel asked Ms. Borrelli whether she had withheld any checks from appellant. This time, the court sustained the prosecutor's relevance objection. Defense counsel responded by briefly changing the focus of his cross-examination.

He then asked Annette who had sold the family home but got no answer as the court sustained the prosecutor's relevance and Evidence Code section 352 objections to the question. The court also sustained the prosecutor's unspecified objection to defense counsel's question whether there had been a second home and whether title to that home had been placed in her parents' name. At this juncture, the trial court announced that it would sustain all future objections to any further questions about the couple's marital dissolution.

Applying the foregoing rules to these rulings, we find no error. Without a doubt, Annette's testimony was crucial to the prosecution's case. However, the jury was made aware, through other evidence admitted at trial, that this was not an amicable dissolution and that Annette wanted appellant punished for what he had done to her. They were also made aware that appellant was unhappy about the handling of the community property estate following his separation from Annette. Annette readily admitted that some financial issues were being disputed in the dissolution action. The trial court merely refused to allow appellant to question Annette about those issues in great detail. We believe those additional details were of marginal relevance and would only serve to confuse the jury. They were, accordingly, properly excluded.

We turn then to appellant's claim that the trial court's evidentiary rulings deprived him of his right to testify guaranteed under both the state and federal Constitutions. No one disputes that a criminal defendant has a right to testify in his own defense. (People v. Macias (1997) 16 Cal.4th 739, 752 (maj. op., Chin, J.), citing Harris v. New York (1971) 401 U.S. 222, 225; People v. Bradford (1997) 15 Cal.4th 1229, 1332 (maj. op., George, C.J.); People v. Lucky (1988) 45 Cal.3d 259, 282; People v. Frierson (1985) 39 Cal.3d 803, 813; People v. Robles (1970) 2 Cal.3d 205, 214-215; People v. Harris (1987) 191 Cal.App.3d 819, 825.) Since appellant took the stand and testified, he cannot say he was deprived of his right to testify.

His argument is more appropriately addressed to the extent to which the trial court, through its evidentiary rulings, restricted his ability to testify once he took the stand. Appellant maintains the court's actions prevented him from "fully and clearly" attacking Annette's credibility and presenting his own version of events. Appellant has presented no authority to support his position, implied in this argument, that his ability to do these two things cannot be limited in any way without violating his constitutional rights. Nor has he elaborated as to how the court's actions deprived him of his ability to do these things. Consequently, this contention is rejected. (People v. Clair (1992) 2 Cal.4th 629, 653, fn. 2; People v. Roberts (1992) 2 Cal.4th 271, 340; People v. Marshall (1990) 50 Cal.3d 907, 945, fn. 9.)

In any event, the critical issues pertaining to Annette's credibility and appellant's defense strategy were sufficiently developed through the other evidence adduced at trial.

Respondent believes the trial court properly instructed the jury regarding the offense when it utilized CALJIC No. 9.16.1 which, for the most part, tracks the language of the statute. Respondent cites People v. Poggi (1988) 45 Cal.3d 306, 327, for the proposition that the language of a statute defining a crime is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient in the absence of a request for amplification.

Respondent, relying on People v. Estrada (1995) 11 Cal.4th 568, 574, insists it was appellant's obligation to request any clarifying or amplifying instructions in the trial court. Having failed to do so, respondent asks that appellant be precluded from doing so for the first time on appeal. He cites numerous cases in support of this request.

Finally, respondent argues that, even if we were to find the trial court erred, it would be harmless under People v. Watson (1956) 46 Cal.2d 818, 836, since it is not reasonably probable a result more favorable to appellant would have occurred in the absence of the error.

"It is settled that a court must instruct on general principles of law that are closely and openly connected with the facts of the case." (People v. Perez (1992) 2 Cal.4th 1117, 1129; accord People v. Estrada, supra, 11 Cal.4th at p. 574; People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 149, and People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) That obligation includes instructing the jury as to all essential elements of a charged offense. (People v. Davis (1994) 7 Cal.4th 797, 805.) "The duty to instruct sua sponte [also] encompasses the duty to instruct on defenses that are raised by the evidence .…" (People v. Perez, supra, 2 Cal.4th at p. 1129, quoting People v. Sedeno, supra, 10 Cal.3d at pp. 715-716.) The duty to instruct on defenses is a limited one. It arises "'only if appears that the defendant is relying on such a defense, and the defense is not inconsistent with the defendant's theory of the case.'" (People v. Barton (1995) 12 Cal.4th 186, 195, quoting People v. Montoya (1994) 7 Cal.4th 1027, 1047.) "[T]o require trial courts to ferret out all defenses that might possibly be shown by the evidence, even when inconsistent with the defendant's theory at trial, would . . . place an undue burden on the trial courts...." (People v. Barton, supra, 12 Cal.4th at p. 197.)

While the statute expressly excludes from its coverage "constitutionally protected activit[ies]," there is no indication in the record that appellant was relying on this defense. He simply denied that the incidents occurred as alleged by Annette. As such, the trial court had no obligation to instruct on it.

But even if we were to find the court should have sua sponte instructed the jury on this defense, appellant's claim would still fail. This conclusion results from the fact that the jury necessarily resolved this issue against appellant under other properly given instructions. (See People v. Pulido (1997) 15 Cal.4th 713, 726; People v. Sedeno, supra, 10 Cal.3d at p. 721.)

If the jury accepted Annette's testimony, appellant's actions were not constitutionally protected. (See discussion in part II, ante.) As such, the defense would not be available to appellant and there would be no need to instruct on it.

If it accepted the portions of appellant's testimony that were favorable to himself and overlooked his lapses of memory regarding these events, the jury would have necessarily found that appellant never struck or threatened Annette. Because appellant never threatened Annette, he could not have threatened her with the intent to place her in reasonable fear of her safety. The jury would also have found that he had expressed his anger at her but that she was, nonetheless, not afraid of him. They would, in essence, had to have found that appellant did nothing more than express his anger at his estranged wife. Given these circumstances, the jury would have acquitted appellant of the stalking charge because he did not willfully harass his estranged wife or make a "credible threat" as defined by the statute. (See § 646.9, subd. (g), formerly (e).)

The jury obviously rejected appellant's testimony. In so doing, they necessarily found that he had made a credible threat. Since this type of threat does not amount to "constitutionally protected activity," (see discussion in Part II, supra,) no harm accrued to appellant by the failure to instruct on this defense. Hence, this argument must fail.

Finally, we note that appellant's reliance on Meyer v. Nebraska, supra, 262 U.S. 390 is wholly inapposite to this issue. The First Amendment is not even mentioned in the case. The high court did, however, make a fleeting comment, in dicta, that the Fourteenth Amendment includes the right to marry, establish a home and bring up one's children. Relying in part on that observation, the court ultimately concluded that a teacher's Fourteenth Amendment rights were violated by a state law that prohibited him from teaching, and the parents of his students from engaging him to teach, his young students a modern foreign language (as opposed to one of the "dead" languages such as Latin).

He reasons that, due to the trial court's failure to define the phrase, it cannot be determined whether the jury found that Annette suffered substantial emotional distress. As such, he argues, it cannot be said that this "misinstruction" was harmless beyond a reasonable doubt and, therefore, warrants reversal of his conviction.

Citing People v. Anderson (1966) 64 Cal.2d 633, 640, respondent insists the jury is presumed to have understood the phrase since it has not been given a technical meaning in criminal law. Respondent believes the civil definition cited by appellant actually supports this view since it is "in keeping" with the ordinary meaning of the phrase. Alternatively, respondent asks us to find that appellant has waived the right to raise this issue since he did not seek amplification or modification of the standard jury instruction in the trial court. Finally, citing People v. Cox (1991) 53 Cal.3d 618, 669, respondent asks us to find harmless any error the court may have committed in this regard since the actions Annette took to elude appellant and her expressed fear of him would clearly fit within any legally cognizable definition of the phrase "emotional distress."

"'The general rule provides that in defining the elements of a crime it is enough for the court to instruct in the language of the statute when the defendant fails to request an amplification thereof. [Citations.] But that rule is always subject to the qualification that "'"[a]n instruction in the language of a statute is proper only if the jury would have no difficulty in understanding the statute without guidance from the court."'" [Citation.]'" (People v. Howard (1988) 44 Cal.3d 375, 408; accord People v. Estrada, supra, 11 Cal.4th at p. 574; People v. Poggi, supra, 45 Cal.3d at p. 327.) Therefore, if a term has a technical meaning peculiar to the law ¾ one different than its ordinary or common meaning ¾ the trial court has a sua sponte duty to instruct the jury as to its meaning. (People v. Mayfield (1997) 14 Cal.4th 668, 773; People v. Estrada, supra, 11 Cal.4th at p. 574; People v. Poggi, supra, 45 Cal.3d at p. 327; People v. Howard, supra, 44 Cal.3d at p. 408; People v. Anderson, supra, 64 Cal.2d at p. 639; People v. Shoals (1992) 8 Cal.App.4th 475, 489.) This duty derives from the trial court's sua sponte duty to instruct on the general principles of law that are closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case. (People v. Mayfield, supra, 14 Cal.4th at p. 773; People v. Howard, supra, 44 Cal.3d at p. 408; People v. Anderson, supra, 64 Cal.2d at p. 639; People v. Shoals, supra, 8 Cal.App.4th at p. 489.) If, however, the term has no technical meaning peculiar to the law, but is commonly understood by those familiar with the English language, instructions as to its meaning are not required. (People v. Estrada, supra, 11 Cal.4th at p. 574; People v. Poggi, supra, 45 Cal.3d at p. 327; People v. Howard, supra, 44 Cal.3d at p. 408; People v. Anderson, supra, 64 Cal.2d at p. 639.)

When trying to ascertain whether a particular term or phrase has a meaning peculiar to the law, courts have historically looked to the language used in the particular statute, the intent of the Legislature in enacting that statute, any related statutes which employ the term, the common use of the term, any case law on the subject, and the context of the phrase in light of the evidence presented at trial. (See, e.g., People v. Miller (1999) 69 Cal.App.4th 190, 208 [term defined by statute]; People v. Pruett (1997) 57 Cal.App.4th 77, 82-86 [relied on statutory definitions, common use, case law and context]; People v. Jimenez (1992) 11 Cal.App.4th 1611, 1628 [purpose to be served by the statute], disapproved on other grounds in People v. Kobrin (1995) 11 Cal.4th 416, 419-420; People v. Shoals, supra, 8 Cal.App.4th at p. 490 [term defined by case law]; People v. Hill (1983) 141 Cal.App.3d 661, 668 [lack of statutory definition for one term and case law finding another term to have a special meaning].)

Turning to this case, we observe that the Legislature did not define the phrase "emotional distress" in section 646.9 even though it defined various other expressions included in the statute. (See § 646.9, subds. (e), (f), (g), (l).) The parties have not cited us to, nor have we found, any judicial opinion declaring the phrase to have a special meaning at law. While cases may arise in which it could have a technical meaning, this is not one of them. Given the evidence presented in this case, a lay person would have no difficulty determining whether Annette suffered emotional distress as a result of appellant's actions. That evidence amply demonstrated appellant's explosive temper and lack of self-control. He frequently acted without any regard for the safety of his estranged wife or children or the damage to property that would result from his actions. He repeatedly threatened to kill Annette ¾ once with a gun. Annette knew appellant owned guns and knew how to use them. Whether he actually possessed a gun at the time of these incidents we do not know for certain. Appellant did, however, tell Annette that he kept one in his truck. In any event, by his own admission, appellant retained access to the guns he had given his brothers. He had also rammed Annette's car with his own and smashed his own car into her workplace. The evidence also showed that Annette feared appellant and, as a result, had sought the help of the police and appellant's relatives. She felt the need to exchange their children at the police department. Perhaps most telling is the fact that she moved and did not disclose her new address to appellant.

The cases cited by appellant are simply inapposite. They concern wholly unrelated words and factual contexts. They have about as much persuasive appeal as those cases that declare other unrelated words in still other statutes to have no technical meaning.

Appellant also challenges the trial court's failure to give a unanimity instruction directed at count IV, the stalking offense, because the jurors could have disagreed as to which acts constituted the offense ¾ those which were alleged to have occurred on July 21, 1995, or those which occurred on December 22, 1996.

Respondent relies on People v. Avina (1993) 14 Cal.App.4th 1303, 1309, and the cases cited therein to argue there was no need for a unanimity instruction since, under the harassment theory of prosecution applicable to appellant, section 646.9 contemplates a continuous course of conduct.

In his reply brief, appellant contends Avina is distinguishable because it dealt with a different statute, namely section 288.5. That statute, according to appellant, was enacted to address the particular problems associated with child molestation cases and expressly states that it is a continuous course of conduct offense for purposes of the unanimity rule. Appellant believes section 646.9 is more analogous to section 422 (making terrorist threats) than section 288.5.

The need for jury unanimity finds its source in article I, section 16 of the California Constitution. (People v. Mickle (1991) 54 Cal.3d 140, 178; People v. Jones, supra, 51 Cal.3d at p. 321.) "The standard unanimity instruction codifies this principle." (Ibid.; see CALJIC No. 4.71.5.)

This unanimity principle has been explained as follows:

It is inappropriate to give a unanimity instruction when "one offense has been charged and a continuing course of conduct is shown to establish that single offense." (People v. Ainsworth, supra, 45 Cal.3d at pp. 1017-1018.) Justice Mosk explained the concept behind this principle as follows:

This continuous-course-of-conduct exception has been applied in various criminal settings. (See, e.g. People v. Gear, supra, 19 Cal.App.4th at p. 92 [continuous sexual abuse of a child under section 288.5]; People v. Salvato (1991) 234 Cal.App.3d 872, 879 [dissuading a witness from testifying]; People v. Moore (1986) 185 Cal.App.3d 1005, 1015 [misdemeanor child annoyance or molestation under former section 647a]; People v. Thompson (1984) 160 Cal.App.3d 220, 224 [corporal injury of a cohabitating spouse resulting in a traumatic condition under section 273.5]; People v. White (1979) 89 Cal.App.3d 143, 151 [pandering]; People v. Lewis (1978) 77 Cal.App.3d 455, 461 [pimping]; People v. Ewing (1977) 72 Cal.App.3d 714, 717 [child abuse under section 273a]; People v. Lowell (1946) 77 Cal.App.2d 341, 345-347 [contributing to the delinquency of a minor]; and People v. Morrison (1921) 54 Cal.App. 469, 471 [failure to provide for a minor child].)

When deciding whether the exception ought to apply to a particular statute, we look to the language of that statute to see whether the Legislature intended to punish individual acts or an entire course of wrongful conduct. (People v. Salvato, supra, 234 Cal.App.3d at p. 882; People v. Thompson, supra, 160 Cal.App.3d at p. 225.) A reading of the relevant versions of section 646.9 leaves no doubt that the Legislature intended to punish the latter. The statute makes it a crime to "willfully, maliciously, and repeatedly follow[] or harass[] another person." (§ 646.9, subd. (a), italics added.) The Legislature defined the term "harasses" as "a knowing and willful course of conduct directed at a specific person." (§ 646.9, subd. (e), formerly subd. (d), italics added.) The Legislature has consistently defined "course of conduct" to mean "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." (§ 646.9, subd. (f), formerly subds. (d), (e).)

Here, appellant was charged with one count of stalking, not multiple counts. The jury was specifically instructed in accordance with the definitions set forth above. Thus, the issue before the jury was whether appellant was guilty of the course of conduct, not whether he committed a particular act on a particular day. Hence, this argument must fail.

This remains our conclusion despite the poor drafting of the information. Both parties, in presenting their case to the jury, deemed the dates set forth in the information as establishing the range within which the stalking acts were alleged to have occurred. They did not treat the information as alleging two separate incidents that occurred on the two specified dates. Defense counsel did not object to the presentation of evidence on dates other than those mentioned in the information. He did, however, object when the prosecutor tried to present evidence of an incident that purportedly happened "outside the period charged." Based on the testimony presented at the preliminary hearing, appellant had full notice of the People's intent to put on evidence of incidents that were said to have occurred on dates other than those mentioned in the information. Finally, we observe that the instructions made it clear to the jury that they were to consider the continuing nature of appellant's conduct in deciding whether he was guilty of stalking his estranged wife. The jury is presumed to have followed those instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)

Appellant contends the trial court committed reversible error when it denied the jury's request to have the defense closing argument read back to them because that argument was complex and critical to a determination of the arson charges in this case. He relies on People v. Sims (1993) 5 Cal.4th 405, 453 (hereinafter Sims), and People v. Gordon (1990) 50 Cal.3d 1223, 1257-1260 (hereinafter Gordon), disapproved on other grounds in People v. Edwards (1991) 54 Cal.3d 787, 835, to advance his claim that a trial court has inherent authority to order such a read back and should order it done where, as here, the theory advanced by the defense is of sufficient complexity.

Without elaboration or authority, respondent asserts this claim is procedurally barred. Respondent, also citing Gordon and Sims, acknowledges that a trial court has discretion to order a read back of argument. Respondent nonetheless believes the trial court acted properly because courts would be ill advised to repeat the necessarily argumentative text of one side's closing statement during such a critical stage in the proceedings since doing so could give that side a distinct advantage. Respondent believes the trial court acted well within its discretion in denying the jury's "sweeping" request. In the event we find the trial court erred, respondent urges us to reject appellant's claim based on principles of invited error as explained in People v. Laster (1997) 52 Cal.App.4th 1450, 1469; People v. Chagolla (1983) 144 Cal.App.3d 422, 432-433 and People v. Kageler (1973) 32 Cal.App.3d 738, 746. In advancing this latter argument, respondent does concede that, under People v. Jones (1998) 58 Cal.App.4th 693, 708, an attorney's mere acquiescence in a court's ruling does not amount to invited error.

In his reply brief, appellant insists his trial counsel did not invite the court to err. His having said "no" after the court announced its ruling was ambiguous at best and, at worst, could have amounted to nothing more than mere acquiescence in the court's ruling. At one juncture, appellant contends the trial court refused to exercise its discretion but later insists the court erred when it failed to recognize it had discretion to order the reading.

In Gordon, as in Sims, the jury requested a reading back of the closing arguments presented by defense counsel, and the trial court responded by indicating it lacked authority to grant the request. In upholding the trial courts' denial of the request, our Supreme Court concluded that section 1138, which requires a trial court, upon request by the jury, to read back testimony or reinstruct on legal issues, does not apply to a request for the reading of closing arguments. (Sims, supra, 5 Cal.4th at p. 453; Gordon, supra, 50 Cal.3d at pp. 1259-1260.) The high court did, however, hold that a trial court has inherent authority and discretion to make such an order. (Sims, supra, 5 Cal.4th at p. 453; Gordon, supra, 50 Cal.3d at p. 1260.)

Once that discretion has been exercised, it is to be reviewed on appeal under the deferential abuse-of-discretion standard. (Gordon, supra, 50 Cal.3d at p. 1260; see People v. Clair (1992) 2 Cal.4th 629, 661.) If, however, the trial court mistakenly believed it had no authority to order the reading of closing summations, any prejudice that might have accrued as a result is to be judged under the standard of People v. Watson, supra, 46 Cal.2d at p. 836. (People v. Sims, supra, 5 Cal.4th at p. 453.)

The ruling made in this case is sufficiently ambiguous that we cannot tell whether the court exercised its discretion or mistakenly believed it had no authority to order the reading of defense counsel's 14-page long summation. We nonetheless conclude that reversal is not required under either scenario. Here, as in Sims, the arguments advanced by defense counsel were not so complex that it was necessary to read his closing arguments to give appellant the full benefit of the adversarial process. Defense counsel essentially characterized appellant's actions as those typically seen in an acrimonious divorce and expressed his belief that these actions did not amount to stalking. As to the arson charge, he simply highlighted his arson expert's testimony and pointed out what he perceived to be the shortcomings in the testimony of the prosecution's expert. In so doing, he did not elaborate on any complex theories but kept his comments simple (i.e., what did not melt in the fire and what damage was observed to specific parts of the car as indicative of the ignition source of the fire and/or the absence of evidence that an accelerant was used). Defense counsel essentially conceded appellant's guilt on the vandalism charge and merely raised some question as to the amount of damages which he left to the jury without argument.

Respondent asks us to reject this claim since it is not reasonably probable that the alleged errors, either singly or in combination, affected the verdict given the overwhelming evidence of appellant’s guilt.

We have concluded that none of defendant's claims had merit. Accordingly, we also reject his claim of cumulative error.

The judgment is affirmed.

Ardaiz, P.J.

WE CONCUR:

Thaxter, J.

Harris, J.