People v. Shivers ( 2015 )

Filed 4/15/15
CERTIFIED FOR PARTIAL PUBLICATION*
APPELLATE DIVISION OF THE SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
THE PEOPLE, ) BR 051060
)
Plaintiff and Respondent, ) (Airport Trial Court
) No. 2WA00673)
v. )
)
FRANCIS SHIVERS, )
)
Defendant and Appellant. ) OPINION
)
APPEAL from a judgment of the Superior Court of Los Angeles County, Kathryn A.
Solorzano, Judge. Affirmed.
Sanford M. Passman, Esq., for Defendant and Appellant.
Michael N. Feuer, Los Angeles City Attorney, Debbie Lew, Assistant City Attorney, and
Kent J. Bullard, Deputy City Attorney, for Plaintiff and Respondent.
* * *
________________
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part III.A.
I. INTRODUCTION
Defendant Francis Shivers appeals the judgment following his conviction of violating a
restraining order and electronically distributing a harassing message (Pen. Code, §§ 273.6, subd.
(a), 653.2, subd. (a), respectively). Regarding the restraining order charge, defendant contends
the court misinstructed the jury, erroneously failed to instruct sua sponte on self-defense, and
erred in answering the jury‟s question. Concerning the harassing message charge, defendant
contends there was insufficient evidence presented at trial, and the court failed to properly
instruct the jury on the elements of the offense. As discussed below, we affirm.
II. FACTS PRESENTED AT TRIAL
Laura Pauley Perrette and defendant were divorced in 2004, and Perrette obtained a
restraining order against defendant in 2006. The order prohibited defendant from, inter alia,
harassing, threatening, following, stalking, molesting, or disturbing the peace of Perrette, and
from coming within 100 yards of her.
On March 20, 2012, Perrette and her fiancé, Thomas Arklie, went to a restaurant on
Franklin Avenue in Hollywood. Perrette and Arklie were seated at a table at the end of a row of
tables along a wall that started at the entrance to the restaurant. At approximately 7:30 p.m.,
defendant and his wife, Mayra Dias Gomes, entered the restaurant. The only available table was
the one next to where Perrette and Arklie were sitting. As defendant and Gomes were escorted
by a waitress toward the direction of Perrette‟s table, defendant told the waitress, “I cannot sit
over there.”
Perrette and Arklie testified defendant got within eight inches to one foot from Perrette‟s
face, and smirked and smiled. Perrette became very upset, shrunk into her chair, and covered
her face with her hands. Defendant pulled out his cell phone, held it out towards Perrette, and
walked backwards while appearing to use the phone‟s video function. Arklie stood up from
where he was seated, got in front of the table, and positioned his body to block defendant‟s view
of Perrette. Arklie, who was about 12 feet away from where defendant was holding his phone,
stood next to the table, and told defendant, “You are not allowed to do that here.” Arklie held
his hand up in front of his face to avoid being taped. He denied threatening or assaulting
defendant.
As defendant backed away, pointing his camera in Perrette‟s direction, he screamed, “I
have a restraining order against her. I have a restraining order against her.” Video captured by
defendant‟s camera phone was taken from near the restaurant‟s entrance, and it showed the table
where Perrette and Arklie were sitting. On the video, defendant pointed to the table and stated,
“He just threatened me. He just came at me threatening me.” Gomes responded, “I know, I
saw.” Defendant asked, “You saw?” to which Gomes responded, “Yeah.” Defendant shouted,
“Could you tell the manager here that I have a restraining order on that other person,” and “He
just came at me threatening me.” Patrons at the restaurant turned around to see why defendant
was shouting. Perrette was extremely embarrassed by the commotion. Perrette called 911 to
report a violation of the restraining order. Prior to the police arriving, defendant left the
restaurant.
Gomes testified that when she and defendant reached the table next to Perrette, defendant
immediately returned to the front of the restaurant and did not get near Perrette‟s table. Gomes
also testified she felt threatened by Arklie, “the way that he suddenly got up from the table and
came at us seemed . . . threatening.”
With regard to the Penal Code section 653.2 charge, Perrette testified that, starting a few
years prior to 2012, defendant began posting comments about her on his Twitter website.
Perrette was an actor on the CBS television series “NCIS,” and persons who searched “#NCIS”
or Perrette‟s name on Twitter would find defendant‟s posts. Defendant repeatedly posted
messages, or “tweeted,” that Perrette “stalked” him and made death threats against him,
although Perrette had not done so. Defendant also falsely tweeted he had “restraining orders”
against her. Perrette lived in the area of Cahuenga Boulevard and Franklin in Hollywood, and
many of defendant‟s tweets referenced this area, alerting people to be on the lookout for
Perrette. Several of defendant‟s tweets were made in response to persons who had accessed his
original tweets, and some of his tweets were also reposted, or “retweeted,” by third parties onto
their Twitter pages. A tweet posted by defendant on April 8, 2012, appeared to reference the
incident at the restaurant: “my wife [and] I went to our favorite restaurant, but [Perrette] was
waiting for us so we left.”
The tweets posted on July 4, 2012, and July 8, 2012, which were the basis for the Penal
Code section 653.2 charge, stated, respectively, “HAPPY FOURTH OF JULY EVERYONE.
SEE YOU ON MY USUAL HANGOUT, CAHUENGA!! (If you see my stalker Pauley Perrette
follow me there call LAPD!!!” and “Speakin of #Cahuenga i‟ll be there 2nite as usual. If you
see my stalker #NCIS Pauley Perrette follow me there report her to LAPD immediately!”
(Capitalization in original.)
III. DISCUSSION
A. Penal Code section 273.61 [Not Certified for Publication]
1. Misinstruction of the jury
Defendant contends the court failed to correctly instruct the jury concerning the elements
of Penal Code section 273.6, subdivision (a). “The independent or de novo standard of review is
applicable in assessing whether instructions correctly state the law [citations] . . . .” (People v.
Posey (2004) 32 Cal.4th 193, 218.)
Penal Code section 273.6, subdivision (a), provides it is a misdemeanor for a defendant to
commit “Any intentional and knowing violation of a protective order . . . .” The court provided
the jury with an instruction based on CALCRIM No. 2701. The court instructed that the People
had to prove: “One, a court issued a written order that the defendant stay 100 yards away and
must not harass, follow, disturb the peace, keep under surveillance, contact, telephone, or send
messages or mail or email or take any action to obtain the location of the protected person. [¶] . .
1
Defendant asserts at the start of his appellate brief, in a section entitled, “Questions Before this
Court,” among other contentions, that the court erred in “failing to inquire of the Defendant as to his
desire to have an instruction of self defense [sic] given to the jury,” and in not granting his motions for
an acquittal and a new trial. Defendant repeats in his “Conclusion” that the court erred in failing to grant
the two motions, but he does not otherwise argue or develop any of these contentions. We therefore
determine the contentions are forfeited. (See People v. Clayburg (2012) 211 Cal.App.4th 86, 93.)
. The second element [is] the court order was a protective order issued under Family Code
section 6218. [¶] The third element [is] the defendant knew of the court order. [¶] The fourth
element is the defendant had the ability to follow the court order. [¶] And the fifth element is the
defendant intentionally violated the court order. [¶] The People must prove the defendant knew
of the court order and that he had the opportunity to read the order or otherwise become familiar
with what it said. [¶] But the People do not have to prove that the defendant actually read the
court order.”
Defendant argues the instruction was invalid because it did not inform the jury that
defendant had to intentionally and knowingly violate the order. Defendant maintains the
omission of the word “knowingly” improperly prevented the jury from considering whether
defendant “acted with full knowledge that his conduct would capture Perrette on video.”
Yet, a violation of the restraining order could have occurred even if defendant had not
videoed Perrette. Defendant could have been convicted based on coming within eight inches to
one foot of her, or disturbing her peace by falsely shouting in the restaurant that he had “a
restraining order against her.” Moreover, there was no requirement the People needed to show
defendant knew his acts were unlawful. The requirement in Penal Code section 273.6,
subdivision (a), that a defendant commit a “knowing violation of a protective order” only refers
to the requirement the defendant must know the order exists and be aware of what it states. (See
People v. Saffell (1946) 74 Cal.App.2d Supp. 967, 979.) Penal Code section 273.6 requires only
general criminal intent (see People v. Greenfield (1982) 134 Cal.App.3d Supp. 1, 4), meaning a
violation may be proved by showing defendant knew of the contents of the order, and intended
to do a proscribed act, such as harassing, disturbing the peace, or coming within 100 yards of
Perrette. The People and defendant stipulated at trial the restraining order was in full force and
effect on the night of the incident, and that defendant had knowledge of the existence of the
order. The court therefore did not err in instructing the jury that one of the elements of the
offense was that “the defendant knew of the court order,” and that the People had to prove this
element.
2. Failure to instruct on self-defense
Defendant contends the court erred in not instructing the jury sua sponte on the defense
of self-defense. Defendant cites no authority holding self-defense can be a proper defense to
violating a restraining order. (See People v. Foote (2001) 91 Cal.App.4th Supp. 7, 12 [“A
failure to cite any relevant authority in support of an assertion results in a waiver of the right to
appellate review of that assertion”].)
Even assuming self-defense could be a proper defense to violating a restraining order, no
self-defense instruction was required. Because there was no request at trial by defendant to
instruct on self-defense, the court only had a duty to instruct on its own motion “if it appear[ed]
that the defendant [was] relying on such a defense, or if there [was] substantial evidence
supportive of such a defense and the defense [was] not inconsistent with the defendant‟s theory
of the case.” (People v. Sedeno (1974) 10 Cal.3d 703, 716.) Defendant‟s counsel did not argue
self-defense to the jury. But, self-defense would not have been inconsistent with defendant‟s
theory of the case, which was that defendant acted reasonably and thereby did not violate the
restraining order. Thus, we must discern whether there was evidence “sufficient to „deserve
consideration by the jury, i.e., “evidence from which a jury composed of reasonable men could
have concluded”‟ that the particular facts underlying the instruction did exist. [Citation.]”
(People v. Wickersham (1982) 32 Cal.3d 307, 324.)
The defense of self-defense requires a defendant to act with the subjective fear that he is
in imminent danger of suffering bodily injury or being touched unlawfully, and the fear must be
objectively reasonable. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) Gomes
testified she felt threatened by “the way [Arklie] suddenly got up from the table and came at [her
and defendant].” But, the undisputed evidence at trial only showed that Arklie stood up from his
table and, without approaching defendant or Gomes, positioned himself next to the table to
block defendant‟s view of Perrette. He made no aggressive motion or threatening gesture;
rather, he just lifted his hand in a protective fashion to cover his own face from being filmed.
Arklie did not say anything threatening, did not have a weapon, and got no closer than 12 feet
from defendant and his wife when he told defendant not to video Perrette. These actions were
insufficient to excite the fears of imminent harm by a reasonable person, and the court was thus
not required to instruct the jury on self-defense.
3. Answering the jury’s question
While the jury was deliberating, it asked the court the following written question: “Does
the restrained person in a restraining order have a right to defend him or herself if he or she is
threatened even if it potentially violates said restraining order?” The court answered the
question in writing: “Self defense is not a defense to any charge under the circumstances of this
case. It is up to you to decide if any person‟s conduct was reasonable under the circumstances.”
Defendant contends the court erred in answering the question because it should have
informed the jury that self-defense was available in the case. In light of our determination that
there was insufficient evidence from which a jury could have concluded the particular facts
underlying self-defense existed, the court did not abuse its discretion in answering the jury‟s
question. (See People v. Beardslee (1991) 53 Cal.3d 68, 97 [a court‟s answer to a jury question
is reviewed for abuse of discretion].)
[The balance of the opinion is to be published.]
B. Penal Code section 653.2
1. Sufficiency of evidence
Defendant contends there was insufficient evidence presented to convict him of violating
Penal Code section 653.2. He argues there was no proof defendant‟s tweets actually incited any
third parties to commit unwanted physical contact, injury, or harassment of Perrette. He also
argues there was no evidence the tweets actually produced any unwanted physical contact,
injury, or harassment by third parties. We review issues concerning statutory interpretation
de novo. (People v. Lofchie (2014) 229 Cal.App.4th 240, 250.)
Penal Code section 653.2, subdivision (a), provides a person is guilty of a misdemeanor if
he, “with intent to place another person in reasonable fear for his or her safety, or the safety of
the other person‟s immediate family, by means of an electronic communication device, and
without consent of the other person, and for the purpose of imminently causing that other person
unwanted physical contact, injury, or harassment, by a third party, electronically distributes,
publishes, e-mails, hyperlinks, or makes available for downloading, personal identifying
information, including, but not limited to, a digital image of another person, or an electronic
message of a harassing nature about another person, which would be likely to incite or produce
that unlawful action.” The statute defines “harassment” as “a knowing and willful course of
conduct directed at a specific person that a reasonable person would consider as seriously
alarming, seriously annoying, seriously tormenting, or seriously terrorizing the person and that
serves no legitimate purpose.” (Pen. Code, § 653.2, subd. (c)(1).) “Of a harassing nature” is
defined as “of a nature that a reasonable person would consider as seriously alarming, seriously
annoying, seriously tormenting, or seriously terrorizing of the person and that serves no
legitimate purpose.” (Pen. Code, § 653.2, subd. (c)(2).)
In interpreting the statute, we seek to ascertain the intent of the Legislature by first
examining the statute‟s “„“words themselves because the statutory language is generally the
most reliable indicator of legislative intent. [Citation.] The words of the statute should be given
their ordinary and usual meaning and should be construed in their statutory context.” [Citation.]
If the plain, commonsense meaning of a statute‟s words is unambiguous, the plain meaning
controls.‟ [Citation.]” (People v. King (2006) 38 Cal.4th 617, 622.)
Penal Code section 653.2, subdivision (a), specifies that a person is guilty if he or she
electronically distributes a harassing message “which would . . . likely . . . incite or produce” the
third party‟s action. Defendant‟s reading of the statute eliminates the modifier “likely,” and
would criminalize the proscribed acts only if a person‟s message “incite[d] or produce[d]”
unlawful action. “„[A] statute should not be given a construction that results in rendering one of
its provisions nugatory. [Citations.]‟ [Citation.] „If possible, significance should be given to
every word, phrase, sentence and part of an act in pursuance of the legislative purpose.‟
[Citation.]” (People v. Hicks (1993) 6 Cal.4th 784, 796, fn. omitted.) The plain meaning of the
words used reveals no requirement that actual incitement or actual production of the
enumerated unlawful effects be caused by a person‟s electronic distribution of a message. The
only requirement is that a defendant‟s message is likely to incite or produce third party actions.
Defendant further argues the evidence was insufficient because the prosecution did not
prove defendant tweeted with the specific intent to incite or produce any unlawful action by
third parties. “„“In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citation.]‟ [Citation.] We presume in support of
the judgment the existence of every fact that could reasonably be deduced from the evidence.
[Citation.]” (People v. Aldana (2012) 206 Cal.App.4th 1247, 1253.) Evidence of specific intent
is rarely proved with direct evidence; rather, “„such intent must usually be inferred from all of
the facts and circumstances disclosed by the evidence.‟” (People v. Rehmeyer (1993) 19
Cal.App.4th 1758, 1765.)
The circumstantial evidence was sufficient to permit a reasonable trier of fact to conclude
defendant acted with intent to incite or produce unlawful action by a third party who read his
messages. Defendant electronically distributed messages about Perrette using Twitter, which, as
shown by the evidence at trial, is a public social networking website on the Internet where users
can write and respond to short messages. Twitter constituted an “electronic communication
device” within the meaning of the prohibited communications statute. (See Pen. Code, § 653.2,
subd. (b) [including Internet web pages and websites within the definition of “electronic
communication device”].) The evidence showed a person‟s tweets posted on Twitter can be
read by the public and spread to the websites of other Twitter users by being retweeted, so that a
single tweet may be repeated and disseminated throughout numerous web pages accessible to
the public.
Defendant posted messages on Twitter such that persons searching for Perrette‟s name
could find his tweets. Also, by using a hashtag for the show (“#NCIS”) and the location
(“#Cahuenga”), third parties searching on Twitter would also come across defendant‟s tweets.
Several of the tweets were made in response to persons who had read defendant‟s tweets, and
other tweets had been retweeted by third parties, indicating to defendant that third parties were
accessing the information he posted and his tweets were being disseminated. The tweets leading
up to the ones posted on July 4 and July 8, 2012, falsely indicated that defendant had a
restraining order against Perrette and that she was stalking him and making death threats against
him. The July 4 and July 8, 2012 tweets referenced the area of Cahuenga where Perrette lived.
These tweets also referred to Perrette as defendant‟s “stalker,” and requested that readers “call
LAPD!!!” and “report her to LAPD immediately!” if they saw her following him in the area.
It can be inferred defendant knew that persons who encountered Perrette after reading his
tweets could have been motivated to report her to the police for what they believed was her
stalking him, or to otherwise harass her. (See Pen. Code, § 653.2, subd. (c)(1) [defining
“harassment” as “conduct directed at a specific person that a reasonable person would consider
as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing the
person”].) Given the nature of Twitter and the provocative contents of defendant‟s tweets, a
reasonable trier of fact could conclude defendant posted his tweets with the specific intent to
incite or produce unwanted physical contact, injury, or harassment at the hands of a third party.
2. Misinstruction of the jury
The court instructed the jury that, to find defendant guilty under Penal Code
section 653.2, the People had to prove: “One, the defendant by means of an electronic
communication device and [sic] acted without the consent of [Perrette] electronically distributed
or published an electronic message of a harassing nature; and [¶] Two, the defendant
electronically distributed or published the electronic message about [Perrette] for the purpose of
imminently causing [Perrette] unwanted physical contact or injury or harassment by a third
party; and [¶] Three, the defendant distributed the electronic message and a reasonable person
would consider that electronic message likely to incite or produce unwanted physical contact,
injury or harassment by a third party; and [¶] Four, the defendant at the time of the electronic
distribution of the electronic message acted with the intent to place [Perrette] in reasonable fear
for her safety or safety of her immediate family.”
Defendant contends the instruction was faulty because it omitted the element in Penal
Code section 653.2 that defendant‟s communication was one “which would be likely to incite or
produce that unlawful reaction.” “We review this claim, which involves the determination of
applicable legal principles, under a de novo standard.” (People v. Guiuan (1998) 18 Cal.4th
558, 569.)
The court‟s instruction did not use precisely the same language as the statute, that is, it
did not state the electronic communication must be such as it “would be likely to incite or
produce that unlawful action.” (Pen. Code, § 653.2, subd. (a).) Nevertheless, the instruction
informed the jury that, to find defendant guilty, defendant‟s electronic message must have been
made “for the purpose of imminently causing [Perrette] unwanted physical contact or injury or
harassment by a third party,” and was “likely to incite or produce unwanted physical contact,
injury or harassment by a third party.” When the statute is read as a whole, it is clear the
language “that unlawful action” is a direct reference to “unwanted physical contact, injury or
harassment.” The jury instruction simply incorporated the more precise language in order to
accurately define the offense.
Lastly, defendant argues the conviction should be reversed because the court failed to
include in its instruction that the fear defendant intended to cause Perrette must be of a third
party’s action. We determine no misinstruction occurred.
Defendant‟s argument concerns the fourth paragraph of the instruction, wherein the court
stated that to find defendant guilty, the jury was required to find “defendant at the time of the
electronic distribution of the electronic message acted with the intent to place [Perrette] in
reasonable fear for her safety or safety of her immediate family.” This paragraph tracked the
requirement in the statute that a person must act “with intent to place another person in
reasonable fear for his or her safety, or the safety of the other person‟s immediate family.” (Pen.
Code, § 653.2, subd. (a).) The plain meaning of the statute does not reveal any Legislative
intent limiting the victim‟s fear to that of only third party unlawful actions. We thus refuse to
add language to the statute which the drafters did not see fit to include, and instead adopt its
plain meaning as controlling. (See People v. King, supra, 38 Cal.4th at p. 622.)
IV. DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
_________________________
RICCIARDULLI, J.
WE CONCUR.
_________________________
KUMAR, Acting P. J.
_________________________
JOHNSON (B.R.), J.