People v. Jackson CA2/8 ( 2021 )

Filed 4/28/21 P. v. Jackson CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B302324
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA478929)
v.
JAH-JAH JACKSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Renee F. Korn, Judge. Affirmed.
A. William Bartz, Jr., under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Colleen M. Tiedemann, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
A jury convicted Jah-Jah Jackson of stalking Sydnee
Goodman. Goodman hosted internet shows for computer video
gamers, and Jackson was a member of Goodman’s online
audience. Ultimately, Jackson used the internet to find
Goodman’s private home address. Jackson challenges his felony
conviction on First Amendment and other grounds, contending he
did not expressly threaten Goodman. However, his emails,
coupled with his conduct, are substantial evidence to support his
conviction for stalking. We affirm the judgment. Statutory
citations are to the Penal Code.
STATEMENT OF FACTS
Goodman hosted two daily gamer news shows, attended
events and conventions, and maintained a presence on social
media, including on YouTube, Instagram, Snapchat, and,
prominently, Twitch. Jackson became aware of Goodman in
January 2019 through Snapchat. He referred to himself as
Goodman’s “supporter.” In February 2019, Jackson began paying
a monthly fee to subscribe to Goodman’s Twitch channel.
Jackson began interacting with Goodman “[e]very time she got
online on Twitch” and commented on every picture Goodman
posted. Jackson sent messages to Goodman’s chat room from
January 2019 until May 27, 2019, when the chat room banned
him for his harassing postings.
In May 2019, Jackson moved from the Washington, D.C.
area to Ontario, California to enroll in the Universal Technical
Institute.
In January 2019, Goodman became aware of Jackson, but
only through Jackson’s screen name “deusxmachina303.”
2
Jackson never revealed his true name to others online. Later
Jackson used a second online name: “cardinal_faust.”
Goodman saw Jackson—that is, “deusxmachina303”—as “a
very big fan” who was extremely engaged in Goodman’s content.
Goodman interacted with fans on her own server on
Discord. Discord is an internet site that “is almost like a chat
room, but you can have it individually.” In Goodman’s chat room,
Jackson was “very, very active . . . . He would say ‘good morning’
and tag [Goodman] in it every morning.” Goodman would stream
live on Twitch and her viewers could post comments and interact
with her and other online fans. Jackson would tag Goodman to
make sure she saw his comments and posts. Jackson also
interacted with Goodman on other internet platforms.
Jackson’s degree of attention made Goodman “a little
uncomfortable.” She “mentally flag[ged]” Jackson and “knew
that I had to really uphold boundaries there.” In response to
Jackson’s morning greetings, for instance, Goodman would write
“good morning, everyone” rather than address Jackson
individually.
Jackson’s postings began to create problems. On May 27,
2019, a moderator banned Jackson from Goodman’s Discord
server because Jackson was harassing others on the site.
Jackson did not harass Goodman; rather, Goodman noticed
Jackson displayed “a very protective attitude toward maybe my
purity. For example, on Instagram somebody wrote a comment
that they thought I was hot. He would yell at them.”
A. Jackson’s Emails
After being banned from Goodman’s Discord site, Jackson
began emailing Goodman every day for a month. (We grant
Jackson’s unopposed June 29, 2020 motion to augment the record
3
with these emails. We excerpt the emails in italics without
changing their original capitalizations or punctuation.)
Jackson started the day after the moderator banned him
from Goodman’s Discord chat room. In his first email, which is
lengthy, Jackson complained to Goodman about the ban and
asked her to reinstate him. He also invite[d her] to [his] private-
server hosted on github, with the intention of delivering to [her]
highly-sensitive, top-secret, developmental specifications, to
conceive an invitation for [pursuing] a work-related relationship,
in a classified industrial description.
He told her, you are beloved . . . . i would like to consider
you and i two sides of the same coin, which, in the end would
ultimately depend on your judgment regarding the potential risks
and rewards. i see no need to perceive limits to my capabilities, or
my impression of your own, no matter if we grow together or
apart.
Jackson then claimed he worked for the military as a spy:
as for my background: i am a twenty-seven year old male, and my
specialties are information gathering, cybernetic engineering (the
study of systems, the study of observing systems, and machine-
human relationships), and espionage. i was sworn into the u.s.
department of defense at 18 years old, to work in intelligence, later
i honorably discharged from my branch, due to contractual issues
and lackadaisical leadership structure; then and now, i consider
myself a patriot through and through. as you know, i’ve been to
19 countries, and during that time i gathered the international
significance for my current operation. i work in carefully planned
out stages, and I believe that you deserve the chance to make a
choice to escape the vortex of the current system, with the virus
that i developed. . . .
4
Jackson suggested Goodman join him in a working
relationship on a product that will be worth trillions as we near
our 60s. if you decided to work with me: the journey from our
mid-twenties to our senior age and what we can accomplish in
that time is worth more than all of the money in the world. there
are also two means to that financial end, where either course of
action would be determined by you, and can be intermittent
depending on your emotional needs.
Goodman did not respond to this message. She felt
uncomfortable because she perceived Jackson felt he had some
sort of personal relationship with her.
Goodman’s Discord site never reinstated Jackson.
However, Jackson remained able to interact with Goodman on
Twitch.
After this May 28 email, Jackson continued emailing
Goodman daily, and sometimes more than once a day. He would
wake up and, as part of his routine, send Goodman an email.
Jackson often emailed Goodman between 5:00 and 6:00 a.m. He
signed most emails with a heart emoji and “the best regards,
deusxmachina303.”
Goodman opened the first few emails, but they made her
uncomfortable. She showed them to her producer and then began
to archive Jackson’s emails as they arrived.
We excerpt a handful of Jackson’s emails to Goodman.
Sat, Jun 1, 2019 at 5:49 AM
good morning syd..
fun fact: I’ve hacked the system so much, that I am
technically a nameless hindu god . . . .
have a great day..
5
[heart]
the best regards,
deusxmachina303
At trial, Jackson testified he referred to himself as
“technically a nameless Hindu god” as part of his religious
expression. He testified he is the reincarnation of a Hindu god,
and he has a group of people who view him as the reincarnation
of a Hindu god.
Sun, Jun 2, 2019 at 5:32 AM
good morning syd..
I hope that your day is as magical as you are..
fact: secret skills are the best defense against the dark arts..
[heart] . . . .
Mon, Jun 3, 2019 at 5:32 AM
good morning syd..
i hope that your day feels fulfilling..
fact: if I ever inexplicably disappear, [it’s] best to assume
that I’ve been assassinated..
[heart] . . . .
Mon, Jun 3, 2019 at 8:04 AM
hey syd..
fact: the only thing that i ever “worry” about is that if i got
killed off, in the near future, you’d have no way of finding out..
if I die like a mitch, don’t mourn me, cause i would have
been weak..
[heart] . . . .
6
Jackson testified the unfamiliar word in the last
paragraph, which we have emphasized, means “a man bitch who
dies because he wasn’t strong enough to survive.”
Fri, Jun 7, 2019 at 6:04 AM
good morning syd.. . . .
we already live in the apocalypse.. society and its standards
are all an illusion. . . . we are biologically ordered made to be a
successful pair, or we will inevitably be killed [off] by natural
selection..
[heart] . . . .
Sat, Jun 8, 2019 at 6:54 AM
good morning syd..
I hope that your day is swank, today..
fact: I fell asleep writing a burn, and in my dreams, you
and i were planting a community garden.. while building
relationships with neighbors, and their kids who looked up to us..
[heart] . . . .
Wed, Jun 12, 2019 at 5:55 AM
good morning syd..
I hope that your day is high spirited, today.. . . .
guerrilla warfare suits my personality traits..
[heart] . . . .
Jackson testified, “Guerrilla warfare is the art of surprise-
attacking in a terrain where clear lines of sight cannot be made.”
Thu, Jun 13, 2019 at 6:59 AM
good morning syd..
7
i hope that your day is filled with revitalizing energy,
today..
fact: i have 3 [recurring] nightmares, some that i haven’t
had for years.. (the little boy blue kills my entire family, before I
can get home; my “voice” is silenced; and, facing-off against an
indestructible enemy).. I have a general rule about not engaging
in combat, unless a certain condition is met.. however, there are 2
people who I want to go “hand-to-hand” with, in a trustworthy
fight simulation.. ((neo (keanu reeves), and my ambiguous life-
partner)).. . . .
[heart] . . . .
Fri, Jun 14, 2019 at 5:40 AM
good morning syd..
I hope that you have a fantastic day, today..
fact: I consider this my home, now.. once I turn my back,
I’m gone forever.. In fact, because of the way that I travelled and
lived my life previously, there’s no positive id of who I am or what
happened to who I was.. the hardware and accounts that I have
are all dark..
[heart emoji] . . . .
Sun, Jun 16, 2019 at 8:06 AM
good morning syd..
i hope that your day is as awesome, as you are.. . . .
when i moved back to dc, i had it in my mind to change the
world, so i eventually reverse-engineered the global economy and
developed a virus that would modify society in ways that
“everyone” intrinsically wants.. . . . then, once i began the process
8
of executing the system, as a consequence i became the anti-christ .
. . . i am just as loyal, as i am exacting..
[heart] . . . .
Wed, Jun 19, 2019 at 8:30 AM
good morning syd..
i hope that you have a platinum level day, today.. . . .
i’m very glad to be here.. I also, think that it would be fair
to show you what I look like, in person, at this point . . . .
[heart] . . . .
Jackson appended three pictures to this email. Two show
his masked face. In one Jackson also wears sunglasses. The
third picture shows Jackson without a mask or sunglasses.
B. Jackson’s Conduct on June 22 and 23, 2019
On Saturday, June 22, Jackson traveled from Ontario,
California, to Goodman’s apartment in Los Angeles, a distance of
about 50 miles.
Before traveling, Jackson sent Goodman this email:
Sat, Jun 22, 2019 at 6:47 AM
good morning syd..
i hope that you have a wild day, today..
. . . i grew up in the woodland area of the eastern u.s.
mountain region (and, the district is built on top of swampland),
which means that as an adventurous youngling and seasoned
adult, i found a suitable environment for crafting tools, tracking
targets, and navigating new territory.. while i was hunting, last
night i remembered how i was telling you about how the darknet
works, because of the anti-tracking nature of what lies beneath of
the restricted areas for the internet, that depend on the country;
9
therefore, i decided to make a tutorial.. I’ll send it to you, in a
bonus email, this afternoon.. . . .
[heart] . . . .
In the afternoon of June 22, Jackson knocked on the front
door of Goodman’s second-story apartment. Goodman’s building
has four apartments: two on the ground floor and two on the
second floor.
Goodman’s husband Alex Rubens looked through a window
in the door and saw a man wearing a mask and a fully hooded
coat on this June afternoon.
Rubens said, “What’s up?”
Jackson said, “Is Syd there?” Syd is Goodman’s nickname;
her close friends or online fans use this nickname.
Rubens said, “No. Please leave.”
Jackson said, “I’ll just wait here.”
Rubens said, “You need to leave. You’re trespassing.”
Jackson said, “Okay. I’ll just come back later.”
Rubens said, “The F you will. Get the F out of here right
now.” Jackson did not leave.
Jackson did not say why he wanted to see Goodman. He
did not leave; he stayed on the second floor landing playing video
games.
Rubens was fearful because Jackson was wearing a mask
and would not leave.
A neighbor saw Jackson there about half an hour later.
Rubens called the police, who took about an hour to arrive.
By that time Jackson had left. Police drove around the block and
did not see Jackson.
10
Rubens went to Best Buy, bought security cameras and a
doorbell tied to them, and installed the camera system that
afternoon.
That same afternoon, Jackson sent Goodman this email:
Sat, Jun 22, 2019 at 4:06 PM
hey syd..
i have to email you that tutorial for the darknet, tmrw.. i
had to make moves.. it will still be bonus content..
[heart] . . . .
At trial, Jackson testified “i had to make moves” meant
Jackson “had indeed tried to possibly find [Goodman] to see if she
was okay.”
At 9:45 that evening, Jackson returned to Goodman’s and
Rubens’s apartment, again wearing a mask. Jackson introduced
himself as “Deus.” By now, Rubens knew Deus was somebody
who had been emailing Goodman. Rubens told Jackson to wait
for Goodman to arrive, because police said they would have a
better chance of contacting Jackson that way.
Rubens phoned police that Jackson had returned. Rubens
told them Jackson was harmless but had mental issues. Rubens
told them he suspected Jackson might have Asperger’s or autism.
Rubens said this at Goodman’s behest; she feared police
otherwise would “walk up and shoot” Jackson.
Police arrived in 10 minutes with two patrol cars and two
helicopters. One helicopter shined a spotlight down on Jackson,
who stood playing a video game.
Police handcuffed Jackson, sat him in a cruiser, and asked
why he was there. Jackson said he had to handle something with
Goodman’s husband in regard to Goodman. Jackson said
Goodman had been acting differently via social media. The police
11
tried to get more details, but Jackson’s answers were “very
facetious and disrespectful.” Jackson did not respond to police
questions with appropriate answers. Jackson instead spoke
about how realistic video games are and was checking out gear
inside the police car.
The officers told Rubens he could give Jackson a verbal
warning. Rubens went to the police car and addressed Jackson:
“I told you once, I will tell you again. I never want to see you
here again or I will call the cops.”
Jackson replied, “Actually I’m very lucky. I am very [lucky]
because I have tons of information contained in this—in this little
teeny, tiny space. Thank you. Thank you very much.”
Rubens took this statement as a threat because Jackson
had “learned information about us. He learned information
about our street and he would use it going forward.”
Jackson told Rubens, “well, you called the cops this time.”
Jackson got angry and started yelling at Rubens.
Police separated Jackson and Rubens.
A police officer said she decided to warn Jackson at that
point rather than arrest him. “I didn’t want to arrest him,
although he did create multiple radio calls. . . . I wanted to give
him a chance.”
Police warned Jackson not to return to that area or he
would be trespassing. Jackson disputed he was trespassing.
Police also gave Jackson a written trespass warning, took him
five houses away to a nearby intersection, told him not to get
closer to Goodman’s apartment, and left him there. The officers
watched Jackson put his mask and hood back on.
12
When police circled back in five minutes, Jackson was still
at the intersection, although he had crossed the street. Police
departed. Rubens was irate they left Jackson so close.
Jackson spent the night sleeping on the grass at that
intersection. Then he went to a nearby Starbucks.
The next day was Sunday, June 23.
At 5:33 a.m. on Sunday, Jackson sent Goodman an email
from the Starbucks. At trial, Jackson claimed he sent this email
to explain to Goodman “[h]ow a search algorithm works in
practical terms.” We excerpt this message:
Sun, Jun 23, 2019 at 5:33 AM
good morning syd..
i hope that you have a spectacular day, today..
fact: tracking moving target, such as a ball or an animal, is
a very intuitive process for human beings, so [its] mechanics can
easily be taken for granted, and not developed as a skill.. the first
thing that is needed to find a moving object is data.. . . . the
second thing that is needed is a search vector.. . . . these vectors
are all based on the data sets that you choose for the query.. you
can find public databases online, and at the libraries to find
people when large searches are being conducted, such as figuring
out where someone lives.. [it’s] a fun skill to practice, even around
the office, to surprise attack co-workers.. and, become really good
at it..
[heart]
the best regards,
deusxmachina303
That morning, Goodman awakened Rubens to show him
this new email from Jackson. The email scared Rubens because
13
it was about how tracking people and surprise attacks were
Jackson’s favorite things to do.
Goodman was afraid for her life. She was crying and was
trying to find a new apartment. She “felt very trapped because I
knew that he knew where I lived, but I felt afraid to go outside
because I wasn’t sure if he was watching me. I felt so scared for
my husband, and I just—I felt like I needed to find a new career
path.” “. . . I felt like I could never imagine bringing kids into my
life knowing that they’re—sorry—that they’re, like, at that kind
of risk . . . . [H]aving a family is something that’s really
important to me, and I just—it feels like I have to choose.”
Goodman and Rubens went to a police station to report this
development and to get an order prohibiting Jackson from being
in their neighborhood. They could not get this order on a
weekend.
For the first time, Goodman responded to Jackson. She
emailed: “Stop contacting me. I have filed a restraining order, as
has my spouse. If you contact us or get anywhere near us, I’ll call
the police. Sydnee Goodman.”
Meanwhile, Jackson left the Starbucks and returned to the
intersection. He again went to sleep on the grass.
Rubens and Goodman were away from home later that
Sunday when neighbors notified Rubens that Jackson again was
near their apartment. Rubens and Goodman called police and,
before heading home, waited for word police were there. On the
way, Goodman had a panic attack and Rubens had to stop the
car. When they arrived back in their neighborhood, they saw
police putting Jackson in the back of a car. Police had arrested
Jackson at the intersection where they had left him the night
before, five doors from Goodman’s apartment.
14
C. Jackson’s Defense
At trial, Jackson testified he never intended to threaten or
scare Goodman. Jackson claimed he wore his mask for innocuous
reasons, and he traveled to Goodman’s place only to see if she
was okay or whether Rubens was physically abusing her. In
short, Jackson claimed his only motivation was noble.
Jackson testified he routinely wears his mask. It “protects
me from bugs, from particles in the air, from the sun, from
certain levels of radiation from the sun, it also protects me from
facial recognition algorithms as well as being part of my religious
expressions.” Jackson also wore the mask to prevent drones from
using facial recognition software to identify him “as a human.”
“I’m talking about weaponized microdrones or antipersonnel
drones.” His mask “prevents drones from being able to
specifically target me during a possible terrorist attack.” Also,
the mask is “very comfortable. Like, it’s like being hugged on
your face. Consistently it helps you keep a—it helps you keep
calm.”
Jackson testified he wears the mask, sunglasses, and a
hood as part of his religious expression.
Jackson sent the emails to help Goodman by giving her
valuable information: “She could pay me for this.”
Jackson denied any intent to threaten Goodman. In court
he repeated this denial more than 25 times. He explained his
June 23, 5:33 a.m. email about a “surprise attack” “just means
giving a surprise on somebody . . . like, they surprised me with
balloons.”
Jackson told the jury he traveled to Goodman’s apartment
because he believed she might be the victim of domestic abuse.
15
He was concerned for her safety and he wanted to check to see if
she was okay.
Jackson explained he had examined Goodman’s video posts
and saw three signs that she was in danger. First, Goodman had
posted a picture on Instagram that included her glass table.
Under the glass Jackson could see a pair of garden shears.
Jackson concluded Goodman had stashed the shears there as a
weapon to protect herself from her husband’s domestic abuse.
Second, Goodman had posted another picture on social
media. Jackson thought he saw a dark spot on Goodman’s ankle,
which he suspected was a bruise. (Goodman testified it was
eczema.) Goodman also stumbled in a video that day. Jackson
thought the dark spot and stumble suggested Goodman was
injured. He suspected Goodman’s husband might be abusing her.
Third, Goodman had posted a picture of her cat in front of
her balcony. Jackson believed this was the first time Goodman
had posted an image that showed the world outside her
apartment. Behind the cat, the photo showed a view of the city
outside Goodman’s apartment.
This was an “abrupt deviation” from her normal practice of
not revealing scenery outside of her apartment. Jackson believed
Goodman might be letting people know where she was so she
could be rescued.
On Friday, June 21, Jackson used Goodman’s posted
cityscape images to locate her Los Angeles apartment address.
The next day, Saturday, June 22, Jackson traveled by bus from
Ontario to Goodman’s apartment. The trip took about three
hours. Jackson arrived at Goodman’s place around 1:00 or 2:00
o’clock in the afternoon. Jackson wore the mask on the journey.
16
Jackson knocked on Goodman’s door. No one answered, so
Jackson played his handheld video game for a while. He knocked
again later and Rubens answered through a window in the door.
Jackson asked if Goodman was there. Rubens said she was not
and told Jackson to leave. Jackson then walked to a nearby
Starbucks. He was on the premises for a total of about 30
minutes.
In terms of Jackson’s physical movements, his testimony
meshed with the prosecution’s case-in-chief. That is, Jackson left
the apartment in the afternoon and returned that night. Police
that night warned him not to return. Jackson slept at the nearby
intersection where they left him, later went to the Starbucks, and
finally returned to the intersection and slept again. Police
arrested him there for stalking.
The jury found Jackson guilty of one count of stalking
pursuant to section 646.9, subd. (a). The trial court sentenced
him to five years of formal probation with various probation
conditions, including that he attend mental health counseling
twice monthly for a year. He was ordered to serve 261 days in
jail, for which he was given credit as time served. Jackson timely
appealed.
DISCUSSION
1. There Was Sufficient Evidence of a Credible
Threat
Jackson contends there is insufficient evidence to support a
finding that he made a credible threat in violation of section
646.9. He claims his conduct was protected by the First
Amendment and should be reviewed independently pursuant to
In re George T. (2004) 33 Cal.4th 620, 632 (George T.). The
People disagree, pointing out that no case has extended
17
independent review to a stalking conviction. The People rely on
People v. Lopez (2015) 240 Cal.App.4th 436, 447 (Lopez). In
Lopez, the court held credible threats under section 646.9 “ ‘pose
a danger to society and thus are unprotected by the First
Amendment.’ ” (Id. at p. 453.)
Following Lopez, we decline to resolve the issue of which
standard of review to apply because we would affirm under either
standard. We thus apply both deferential and George T.’s
independent review.
Section 646.9, subdivision (a) provides: “Any person who
willfully, maliciously, and repeatedly follows or willfully and
maliciously harasses another person and who makes a credible
threat with the intent to place that person in reasonable fear for
his or her safety, or the safety of his or her immediate family is
guilty of the crime of stalking, punishable by imprisonment in a
county jail for not more than one year, or by a fine of not more
than one thousand dollars ($1,000), or by both that fine and
imprisonment, or by imprisonment in the state prison.”
Subdivision (g) of section 646.9 defines a credible threat as:
“a verbal or written threat, including that performed through the
use of an electronic communication device, or a threat implied by
a pattern of conduct or a combination of verbal, written, or
electronically communicated 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 had the
intent to actually carry out the threat. . . . Constitutionally
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protected activity is not included within the meaning of ‘credible
threat.’ ”
Substantial evidence shows Jackson made a credible
threat. Jackson’s emails spoke of the possibility Jackson and the
“beloved” Goodman would “grow together,” were “two sides of the
same coin,” and together would plant “a community garden”
while “building relationships with neighbors, and their kids who
looked up to us.” He told Goodman, “[W]e are biologically ordered
made to be a successful pair, or we will inevitably be killed [off]
by natural selection.” Jackson wrote of espionage, assassination,
his “dark” hardware and accounts, his guerrilla warfare, and of
being “killed off, in the near future.” Jackson also stated “we
already live in the apocalypse”; “secret skills” were the best
defense against “dark arts”; and he would become the antichrist
who was loyal and “exacting.” He relayed the nightmare of his
entire family being killed off, and of hand-to-hand combat with
his “ambiguous life partner.” He claimed to be skilled at
“tracking targets” and “hunting.”
After writing these statements every day for a month,
Jackson appeared in person, at Goodman’s front door, wearing a
hood and mask on a summer afternoon in a desert climate, and
asked for “Syd”—a nickname used by friends and Goodman’s
online audience. Rubens correctly surmised an anonymous
online viewer somehow found their home. Jackson said nothing
to allay Rubens’s instant concern. Rather, Jackson refused to
leave when ordered; loitered on the interior second floor landing
of the small apartment building playing a video game; vanished
before police arrived; and returned after dark, at about 9:45 p.m.
that evening, still masked. Police and Rubens ordered him off
19
again, without equivocation, but Jackson spent the next 20 hours
lurking at the line police had drawn.
The next morning Jackson sent Goodman his email about
tracking moving targets based on online data. “[It’s] a fun skill to
practice, even around the office, to surprise attack co-workers”
and “become really good at it.”
Jackson testified he merely wished to explain how a search
algorithm works in practical terms. The context cuts against
Jackson. He wrote this final email at a Starbucks near
Goodman’s place, at 5:33 a.m., after a three-hour bus journey,
after two encounters at her apartment, both of which involved
demands for Jackson to go away and stay away, after a police
helicopter spotlighted him, after police handcuffed him and
warned him off, orally and in writing, and after Jackson spent
the night sleeping on the grass five doors from Goodman’s
apartment—as close as police would permit. The context was
Jackson’s determined and menacing intrusion, not a seminar on
algorithms.
In context, the reasonable reading of this email was what
Goodman thought it was: Jackson was telling Goodman, I can
find you. What happens next is up to me. You are not safe.
Jackson calculated his conduct, culminating with his 5:33 a.m.
email about tracking and surprise attacks, to instill fear in
Goodman. As we have described, substantial evidence supports
the jury’s finding that Jackson made a credible threat with the
intent to place Goodman in reasonable fear for her and her
husband’s safety.
To avoid the substantial evidence we have described,
Jackson claims the standard of review should be that enunciated
in George T. George T. was a criminal threats case under section
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422, which is a different statute than the stalking proscription in
section 646.9. George T. held the First Amendment protected a
high schooler’s poem because it was too ambiguous to amount to
a criminal threat. (George T., supra, 33 Cal.4th at p. 638.)
“[E]xactly what the poem means is open to varying
interpretations because a poem may mean different things to
different readers. As a medium of expression, a poem is
inherently ambiguous.” (Id. at p. 636.) “[T]he poetry of Sylvia
Plath, John Berryman, Robert Lowell, and other confessional
poets” depicted “ ‘extraordinarily mean, ugly, violent, or
harrowing experiences.’ ” (Id. at p. 638.) The poem in George T.
followed that tradition and enjoyed First Amendment protection
against a criminal threats prosecution under section 422. The
poet won.
The George T. decision formulated a mixed standard of
review to safeguard the free speech right at stake. The standard
was mixed because the reviewing court must defer to the jury’s
credibility determinations but also must conduct an independent
review of the whole record to ensure the judgment did not intrude
on free expression. The George T. type of independent review,
however, is not “the equivalent of de novo review ‘in which a
reviewing court makes an original appraisal of all the evidence to
decide whether or not it believes’ the outcome should have been
different.” (George T., supra, 33 Cal.4th at p. 634.) This is so
because, compared to an appellate court, the fact finder at trial is
in a superior position to observe the demeanor of witnesses, and
its credibility determinations are thus not subject to independent
review. (Ibid.)
The Lopez court wrote that, as between the substantial
evidence standard and the George T. mixed standard, “We do not
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find it necessary to determine which standard applies in the
present case because we would affirm under either one.” (Lopez,
supra, 240 Cal.App.4th at p. 447.) Lopez noted that “if
independent review is appropriate, it is applicable only to issues
that could implicate the First Amendment, such as the content of
the appellant’s communications; sufficiency of the evidence to
support the jury’s finding on intent is determined according to
the usual substantial evidence standard.” (Ibid.) Like Jackson,
the Lopez defendant claimed his communications with the victim
were not “true threats,” meaning they were not expressive
conduct that communicated an intent to commit a violent act.
Thus, they were protected by the First Amendment. (Id. at p.
448.)
The Lopez court rejected this characterization of his
communications with the victim. Although he never explicitly
threatened the victim, the record disclosed he “was obsessed with
[the victim] over a period of many years, contacted her repeatedly
despite her efforts to stop him directly and through involving the
police, and made clear both that he knew where she lived and
where she went, and that he would not accept her ending what he
perceived to be their relationship.” (Lopez, supra, 240
Cal.App.4th at p. 452.) The court concluded a reasonable person
would understand his communications and conduct to be
threatening. “Such threats ‘pose a danger to society and thus are
unprotected by the First Amendment.’ ” (Id. at p. 453.)
Under George T., our review of the record as a whole shows
Jackson’s communications with Goodman did not fall within the
protection of the First Amendment. First, we accept the jury’s
credibility determinations. The jury’s rejection of Jackson’s
credibility logically and likewise entails rejection of his noble “I
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just went to ensure Syd was okay” motivation. When Jackson
claimed his motivation was benign and the jury did not believe it,
the reasonable inference is Jackson’s true motivation was not
benign. In context, Jackson’s “tracking” email was not benign; it
was a veiled but transparent threat: I can find you. What
happens next is up to me. You are not safe. Jackson’s threat was
implied and general but clear in context. It threw Goodman into
a panic. Her reaction was reasonable. Just as in Lopez, a
reasonable person would understand Jackson’s communications
to be threatening; they fall outside the protection of the First
Amendment.
2. There Was Sufficient Evidence Jackson Intended
to Instill Fear
Jackson also contends the evidence was insufficient to
prove he intended to instill fear in Goodman. Again, we disagree.
Here, the jury rejected Jackson’s benign explanation of his
own motivation. Jurors had an ample basis for inferring
Jackson’s purpose indeed was to threaten and frighten Goodman,
as we have set forth. (People v. Falck (1997) 52 Cal.App.4th 287,
299 [“it can be inferred that appellant intended to cause fear in
the victim from the fact that he insisted on maintaining contact
with her although she clearly was attempting to avoid him, and
although he had been warned away by the police, the court and
the victim’s husband”].) Because the evidence was abundant, we
have no occasion to evaluate whether some lesser mental state
than purpose would satisfy this statute.
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3. The Trial Court Did Not Abuse Its Discretion in
Denying the Request to Reduce Jackson’s Offense to
a Misdemeanor
Jackson next contends the trial court should have reduced
his conviction to a misdemeanor. We disagree.
Section 17, subdivision (b) allows a court to reduce a
wobbler conviction from a felony to a misdemeanor by considering
“the nature and circumstances of the offense, the defendant’s
appreciation of and attitude toward the offense, or his traits of
character as evidenced by his behavior and demeanor at the
trial.” (People v. Morales (1967) 252 Cal.App.2d 537, 547.) On
appeal, we review the trial court’s decision for abuse of discretion.
(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–
978.) “ ‘The burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial
court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.’ ” (Ibid.)
After the verdict and in preparation for the sentencing
hearing, the trial court said its goal was to ensure Jackson did
not contact Goodman or Rubens again, and that, rather than
prison, “probation is a far better way to handle the case.” The
court commented that a “lengthy period of probation” would allow
the court to see how Jackson was doing, “because I think he’s
someone who is intelligent and may be able to understand.”
The sentencing hearing was October 31, 2019. Goodman
sent a written statement. Rubens spoke. The prosecution asked
the court to sentence Jackson to prison. Jackson’s attorney asked
the court to reduce his felony conviction to a misdemeanor. The
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court rejected both these requests and sentenced Jackson to five
years of probation. The court ordered Jackson to return to court
in two months.
The trial court declined to exercise its discretion to reduce
the conviction to a misdemeanor. “I note I watched the defendant
here in court. . . . This court believes that this situation in which
[Jackson] finds himself is a game and that he’s not accepted
responsibility for his actions. If he did, he would have left the
first time he went to Ms. Goodman’s and Mr. Rubens’[s] home.
He would have left when the police contacted him later that night
instead of walking to a Starbucks, instead of walking anywhere.
He sat within four houses because that’s exactly where the police
told him he had to stay, the minimum amount away. He
terrorized both Ms. Goodman and Mr. Rubens. This court
believes his actions are indeed a felony and not a misdemeanor.”
Jackson’s attorney argued Jackson deserved misdemeanor
treatment because the stalking was not aggravated. “So if this
isn’t misdemeanor stalking, what is?”
The court responded, “I entirely disagree with you. Ms.
Goodman and Mr. Rubens were totally unknown to the defendant
. . . . [T]here are plenty of misdemeanor stalkings that this court
has seen and believes appropriately [were] misdemeanors. [¶]
He sent her notes, emails I should say, over a period of time of
four to five months from what the court can tell, and at some
point that escalated. It escalated so that he actually had to figure
out where they lived. When that address was never posted, . . .
he had to actually actively search out where she lived. And then
he shows up on her doorstep wearing a balaclava and a hood after
showing her pictures of the balaclava and hood a few days
earlier. [¶] When he’s told she’s not there, he comes back late at
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night I might add. I think it’s 9:30 at night when he shows up,
and he’s told to go away at that point in time. He still chooses
not to leave. He still chooses to push the envelope as far as it can
go and literally for the next approximately 20 or so hours is on
the street corner nearest to where Ms. Goodman and Mr. Rubens
live. If that’s not terrorizing, if that’s not felony terrorizing, I
don’t know what is.”
The court added, “I’m sorry that his financial aid will be
impacted. I’m sorry that his education might be impacted
because it’s clear Mr. Jackson is incredibly smart.”
Jackson’s counsel persisted: “He’s not a bad person, Your
Honor. I’ve interacted with him. He’s a good person.”
The court responded: “I don’t know because good people do
not harass and threaten people in the manner that he did. I
think if you look at his life as a total—a totality of who he is, if
you look at the fact that he is clearly incredibly well educated and
well versed, I might agree with you. But I don’t know him from
any other human being. I hope he’s a good person, but what I see
is someone who has significant mental health issues. I can’t tell
you what those are. But they’re mental health issues.”
“When the prosecutor asked him questions on cross-
examination, it was a game. When I told him to follow my
instructions on the stand, it was a game. He took one word and
made it a semantic game. I don’t know if he’s going to follow any
orders of probation and just push the envelope. I hope that’s not
the case.”
The court imposed a 10-year stay away order and mental
health counseling twice monthly for at least a year. The court
ordered Jackson to surrender passwords to enable searches of his
computer.
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The court concluded the combination of probationary
conditions “gives me much more control to change his behavior.
And ultimately, my goal’s to not have him back here in court
other than on this case. I don’t want any new offenses from him.”
Jackson claims the trial court did not give individualized
consideration to the offender, the offense, and the public interest.
The record is to the contrary. On appeal, Jackson attempts
merely to reargue his trial position, which his trial lawyer
outlined with admirable force and clarity. The trial court
thoughtfully considered and rejected this presentation, using an
analysis taking full account of Jackson as an individual, of his
offense, and of the public interest. We find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
WILEY, J.
We concur:
BIGELOW, P. J.
STRATTON, J.
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