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Name: People v. McPheeters
Case #: C069702
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 07/24/2013

Under the facts of this stalking offense, the trial court did not err by instructing the jury with CALCRIM No. 1301. Appellant had a long and violent criminal history, including domestic violence against the victim. No-contact orders were issued in Washington and California to protect the victim from appellant, which appellant repeatedly violated. After initially allowing appellant to contact her, the victim refused contact in 2010 after she developed a relationship with another man and they began living together. In 2011, appellant moved into an apartment next to the victim’s apartment and continued harassing her. After threatening both the victim and her new boyfriend with physical harm, appellant was arrested. Appellant told a police officer that he would not stop his behavior despite the court orders and threatened to shoot the victim. The officer relayed the threat to the victim. Appellant was subsequently convicted of felony stalking and disobeying a court order. On appeal, he raised several challenges to the jury instruction on the stalking charge (CALCRIM No. 1301). Affirmed. Based on the facts of the case, there was no error in failing to instruct the jury that statements to a person other than the victim constitute a credible threat within the meaning of section 646.9, subdivision (g) only if the defendant knows that the person is an immediate family member of the victim. Because the prosecution’s theory of the case was that appellant’s entire course of conduct, and not merely his threat to the boyfriend, constituted the stalking offense, it was not critical to instruct the jury as to the defendant’s knowledge of the status of the boyfriend. Likewise, the court did not err by failing to instruct the jury that it had to find that the defendant specifically intended that comments to third parties be conveyed to the victim. Given appellant’s entire course of conduct, whether he intended his words uttered to the officer be relayed to the victim is irrelevant for purposes of establishing a credible threat under section 646.9. Finally, the court did not err in not instructing the jury that appellant was not guilty of stalking if his conduct was constitutionally protected activity because appellant’s conduct and threats were not protected by the First Amendment.