People v. Astalis

• Decision Date: 20 May 2014
• Docket Number: No. BR 051027.,BR 051027.
• Citation: 226 Cal.App.4th Supp. 1,172 Cal.Rptr.3d 568
• Court: California Superior Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. John ASTALIS, Defendant and Appellant.

226 Cal.App.4th Supp. 1

172 Cal.Rptr.3d 568

The PEOPLE, Plaintiff and Respondent,

v.John ASTALIS, Defendant and Appellant.

No. BR 051027.

Appellate Division, Superior Court, Los Angeles County.

May 20, 2014.

See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and Welfare, § 521.

Deborah Blanchard for Defendant and Appellant.

Michael N. Feuer, City Attorney, and Debbie Lew, Assistant City Attorney, for Plaintiff and Respondent.

OPINION

RICCIARDULLI, J.

INTRODUCTION

Defendant John Astalis appeals the judgment of conviction following a jury trial for violating a restraining order (Pen.Code, § 273.6, subd. (a)), and for making repeated telephone calls and repeated contact by means of an electronic communication device with the intent to annoy or harass (Pen.Code, § 653m, subd. (b)). On appeal, he seeks reversal of only the conviction for making repeated calls and repeated electronic contacts, contending that Penal Code section 653m, subdivision (b) is unconstitutionally overbroad under the First Amendment, and violates due process of law because it is vague. As discussed below, we affirm.

BACKGROUND

A complaint charged defendant with violating Penal Code section 653m, subdivision (b). It was alleged that, with the intent to annoy and harass, he made repeated telephone calls, and repeated contact by means of electronic communication devices, and by a combination thereof, directed at Bondan Kosenko. Defendant pled not guilty and the case proceeded to trial.

The evidence at trial pertinent to the Penal Code section 653m, subdivision (b) charge showed that defendant became extremely jealous upon learning that Kosenko stayed at the home of defendant's estranged wife, Anne–Marie Ackerman. During a span of about one month, defendant called Kosenko on the telephone several times and left voicemail messages, insisting Kosenko call him, and accusing Kosenko of having “sex parties” at the house. Defendant during this time also sent Kosenko e-mail and text messages, calling him “Beelzebub” and other derogatory names, and alleging Kosenko was engaging in lewd activity at the house in front of defendant's minor children. Both Kosenko and Ackerman testified Kosenko did not engage in any such behavior, nor was there any reason for defendant to so suspect. In the following four months, defendant left over 40 postings on Kosenko's Facebook page, unjustifiably stating Ackerman was mentally ill, and leaving many incoherent messages. Kosenko testified he felt harassed, intimidated, threatened, and annoyed by the calls and contacts. William Bowles and Mary Ann Quintana testified on behalf of defendant that they knew Ackerman, and in their opinion, Ackerman was not an honest person. Defendant testified that he only tried to contact Kosenko because he was concerned about the welfare of his minor children who lived with Ackerman, and he did not intend to annoy or harass Kosenko.

Defendant was found guilty, and the court imposed a probationary sentence. He filed a timely notice of appeal.

DISCUSSION

I. The Statute Is Not Overbroad

General Principles

The First Amendment to the United States Constitution states that “ ‘Congress shall make no law ... abridging the freedom of speech....’ ” ( Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 133, 87 Cal.Rptr.2d 132, 980 P.2d 846.) This is a fundamental right applicable to the states through the due process clause of the Fourteenth Amendment. ( Id. at pp. 133–134, 87 Cal.Rptr.2d 132, 980 P.2d 846.)

Under the overbreadth doctrine, “litigants may challenge a statute not because their own rights of free expression are violated, but because the very existence of an overbroad statute may cause others not before the court to refrain from constitutionally protected expression. [Citations.]” (In re M.S. (1995) 10 Cal.4th 698, 709, 42 Cal.Rptr.2d 355, 896 P.2d 1365.) In order to not be unconstitutionally overbroad, “statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. [Citations.]” ( Broadrick v. Oklahoma (1973) 413 U.S. 601, 611–612, 93 S.Ct. 2908, 37 L.Ed.2d 830.)

Courts have “insisted that the overbreadth involved be ‘substantial’ before the statute involved will be invalidated on its face.” ( New York v. Ferber (1982) 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113.) “Substantial overbreadth” requires a showing of actual or serious potential encroachments on fundamental rights. “[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.... [¶] ... [T]here must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds. [Citations.]” ( Members of City Council of Los Angeles v. Taxpayers for Vincent (1984) 466 U.S. 789, 800–801, 104 S.Ct. 2118, 80 L.Ed.2d 772.) Facial overbreadth “is, manifestly, strong medicine” which has been used “sparingly and only as a last resort,” and which “has not been invoked when a limiting construction has been or could be placed on the challenged statute.” ( Broadrick v. Oklahoma, supra, 413 U.S. at p. 613, 93 S.Ct. 2908.)

Application to the Statute

Penal Code section 653m, subdivision (b) provides, “Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.” The term “electronic communication device” is defined to include “telephones, cellular phones, computers, video recorders, facsimile machines, pagers, personal digital assistants, smartphones, and any other device that transfers signs, signals, writing, images, sounds, or data.” (Pen.Code, § 653m, subd. (g).)

With respect to the requirement that the statute serve the “compelling needs of society” ( Broadrick v. Oklahoma, supra, 413 U.S. at p. 612, 93 S.Ct. 2908), we are guided by People v. Hernandez (1991) 231 Cal.App.3d 1376, 1382, 283 Cal.Rptr. 81( Hernandez ). The Court of Appeal held a former version of Penal Code section 653m, subdivision (b) was not unconstitutionally overbroad. The statute at the time provided a person was guilty of a misdemeanor if he or she made a telephone call, “with intent to annoy another,” and “without disclosing his true identity to the person answering the telephone.” ( Id. at p. 1379, fn. 1, 283 Cal.Rptr. 81.)Hernandez found “[t]he ‘protection of innocent individuals from fear, abuse or annoyance at the hands of persons who employ the telephone, not to communicate, but for other unjustifiable motives,’ ” was a compelling government interest supporting regulation of speech. ( Id. at p. 1381, 283 Cal.Rptr. 81.)

Protecting individuals from unwanted calls and contact in the present version of the statute—which applies to both making repeated telephone calls and making repeated contact by means of electronic communication devices, including sending text messages and leaving messages on the internet (see Pen.Code, § 653m, subd. (g))—is also a compelling government interest. The government has an important interest in protecting the substantial privacy interests of individuals from being invaded in an intolerable manner. (See Cohen v. California (1971) 403 U.S. 15, 21, 91 S.Ct. 1780, 29 L.Ed.2d 284.) “The purpose of [Penal Code] section 653m is to deter people from making harassing [communications] with the intent to annoy and thus, to secure an individual's right to privacy against unwanted intrusion.' [Citation.]” ( People v. Powers (2011) 193 Cal.App.4th 158, 164, 122 Cal.Rptr.3d 709.)

Although not considered by Hernandez, the government has a strong interest in protecting persons from abusive intrusions by means of electronic communication devices, including repeated contact through the internet. “Computers and Internet access have become virtually indispensable in the modern world of communications and information gathering” ( United States v. Peterson (2nd Cir.2001) 248 F.3d 79, 83), and computers and the Internet now “ ‘comprise[ ] the “backbone” of American academic, governmental, and economic information systems....' [Citation.]” (In re Stevens (2004) 119 Cal.App.4th 1228, 1234, 15 Cal.Rptr.3d 168.)

In addition, even though the present version of the statute does not require that a defendant fail to “disclose his true identity to the person” being called or contacted, the government interest in protecting individuals from unwanted intrusions can be as strong, if not stronger, when a person identifies himself. Receiving repeated calls and electronic communications from a person the recipient knows to be the same person that has contacted him over and over could be considered at least as intolerable as receiving contacts from an anonymous caller.

Regarding the requirement that the statute must be “narrowly drawn” in restricting or burdening the exercise of free speech under the First Amendment ( Broadrick v. Oklahoma, supra, 413 U.S. at p. 611, 93 S.Ct. 2908), we find the statute passes constitutional muster. We construe the statute's terms in order to preserve the statute's constitutionality. “It is the duty of this court in construing a statute to ascertain and give effect to the intent of the Legislature. [Citations.] And it is fundamental that the Legislature will not be presumed to intend unconstitutional results. [Citations.]” ( ...