People v. McClelland (42 Cal. App. 4th 144, 1996)

Opinion

RUBIN, J.

Defendant William M. McClelland was convicted following a court trial of one count of stalking based on behavior that was prohibited by a restraining order. (Pen. Code, § 646.9, subd. (b).) The court also found to be true a prior conviction for attempted murder, making the conviction a second strike. (§ 667, subds. (b)-(i).) Defendant was sentenced to the midterm of three years doubled, for a total of six years. A section 667.5, subdivision (b) prior prison commitment enhancement was stricken.

Defendant contends section 646.9, subdivision (b) is unconstitutionally vague and also that there was insufficient evidence to support his conviction. He further asserts that he was improperly sentenced because the prosecution failed to allege the prior conviction as a strike. He also attacks the three strikes law on a variety of other grounds. Finally, he argues that the court failed to determine whether he had the ability to pay a $200 restitution fine, and that the abstract of judgment should be corrected to reflect the court’s finding as to the prior conviction.

In the published portion of our opinion, we conclude that section 646.9 is not unconstitutionally vague and that there was substantial evidence to support the judgment. In the unpublished portion, we conclude that defendant was properly sentenced. Accordingly, we affirm. We agree that the abstract of judgment does not accurately reflect the trial court findings, and should be modified.

I.

Factual Summary

A. Events Prior to June 21, 1994

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23, 864 P.2d 103]), the evidence establishes that defendant and the victim, Monica Erdman, began dating in 1982. At the time, defendant was married to another woman. Erdman eventually learned of defendant’s marriage, his divorce, and of his being convicted and sentenced to state prison for attempting to murder his former wife by burning down her house. Erdman continued to date defendant during this period and eventually married him in Tehachapi State Prison in 1988.

When defendant was released in 1990, he went to live with Erdman. Shortly thereafter, she saw him strike her daughter, Linda, after a minor argument. When Erdman threatened to call the police, defendant left the home and lived elsewhere for several months. They later reconciled. By the end of 1993, the relationship had significantly deteriorated, and Erdman suspected that defendant was in love with Linda, who was away at college. Defendant had sent Linda a series of letters which at first expressed his love for her but which eventually turned abusive. In one, defendant stated that if he had seen someone “ ‘blow [Linda’s] head off,’ ” he would “ ‘spit on [her] carcass.’ ”

. In January 1994, Erdman discovered a partially dissolved yellow tablet in a coffee mug from which Linda had been drinking. She found several similarly shaped tablets floating in the toilet. When she confronted defendant, he punched Erdman square in the face, causing her nose to bleed profusely. Defendant then ran into the living room, pinned Linda down to the floor, and punched her several times in the head. Defendant then took Erdman’s keys and left in her car. A few days later, at defendant’s request, the three met at a supermarket parking lot. Defendant advised Erdman that he had withdrawn $2,500 from their joint checking account and had used the money to put a “hit” on Erdman, her children and her house.

During January through the middle of June 1994, defendant made repeated threats to Erdman, Linda and other family members, and specifically threatened to bum down Erdman’s house. On June 18, 1994, while Erdman was at a party for her granddaughter, defendant tried to remove belongings from the house. When Erdman returned, he said he should have shot Linda in the head, “better yet, [I] could have gotten three for the price of one.” Defendant then took a book of matches, lit one, and asked Erdman if she knew “what they were for.” She understood defendant’s conduct as a threat to bum down her house.

B. The June 21, 1994, Order and Subsequent Events

On June 21, 1994, Erdman served defendant with a temporary restraining order. The order prohibited defendant from returning to the house, and from contacting, molesting, attacking, striking, threatening, sexually assaulting, battering, telephoning or disturbing the peace of Erdman, Linda, and certain identified family members. Defendant was ordered to stay at least 100 yards away from Erdman and the other members of the family.

After being served with the order, defendant repeatedly telephoned Erdman. When she used her answering machine to screen calls, defendant yelled at her to pick up the phone and not be a coward. During the 13 days between June 29 through July 11, 1994, the period covered by the information, the following events took place:

—On June 29, defendant rammed the front gate of Erdman’s house with his car.

—On June 30, defendant arrived unannounced with two policemen to retrieve his belongings. Defendant left without incident but later telephoned the house and stated “Fire bomb at 6:00 o’clock.” Erdman believed defendant had planted a bomb in the house and called the police; no bomb was found.

—Throughout the long holiday weekend starting June 30, defendant repeatedly called Erdman. She testified there were “numerous, numerous calls, very vile, calling me, my children names.”

—On July 3, Erdman saw defendant drive up to the house, jump out of the car and threw what she believed to be an explosive device at the house. When the object struck the house it “went off like an explosive.” Police investigating the incident determined that the object was a partially filled green soda bottle.

—On July 11, Erdman observed defendant’s car parked in front of the house; she was afraid that he was on the property. She called the police, who arrested defendant one-half mile away.

On July 7, 1994, the court held a hearing on the order to show cause issued with the June 29, 1994, temporary restraining order. The court granted a “Restraining Order after Hearing” in essentially the same form as the temporary restraining order. The written order was dated and filed on August 25, 1994.

II.

Discussion

A. Stalking Issues

1. Constitutionality of Section 646.9, subdivision (b).

Defendant’s principal contention is that section 646.9, subdivision (b) is unconstitutionally vague and, therefore, his conviction must be reversed. We find no merit in this argument.

Section 646.9, subdivision (a) provides in part that anyone who “willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety” is guilty of stalking. Stalking under subdivision (a) is punishable as a misdemeanor or felony. Subdivision (b) provides that when the proscribed behavior is the subject of a restraining order, the crime is a felony.

Defendant does not contend language in section 646.9, subdivision (a) is vague, nor could he. People v. Heilman (1994) 25 Cal.App.4th 391, 400-401 [30 Cal.Rptr.2d 422], has previously determined the phrase “repeatedly follows” is not unconstitutionally vague; the terms “harasses” and “credible threat” are defined in detail in section 646.9, subdivisions (e) and (g), respectively; and “willfully” and “maliciously” have been part of the Penal Code lexicon since 1872. (See 47 West’s Ann. Pen. Code (1988 ed.) § 7, at p. 18.) Rather, defendant argues that it is “unclear from‘the language of subdivision (b) exactly what behavior in [sub] division (a) must be actually proscribed by the court order in order for a defendant to have violated subdivision (b).”

The standards by which we are to determine the constitutionality of a challenged statute are well established. “ ‘Due process “requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt. [Citations.]”’ (People v. Martin (1989) 211 Cal.App.3d 699, 705 [259 Cal.Rptr. 700, 86 A.L.R.4th 383].) ‘ “ ‘[A] statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential element of due process of law.’ [Citation.]” ’ (Ibid.) [