People v. Chilelli

• Decision Date: 14 April 2014
• Docket Number: B247311
• Citation: 170 Cal.Rptr.3d 395,225 Cal.App.4th 581
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Salvatore CHILELLI, Defendant and Appellant.

225 Cal.App.4th 581

170 Cal.Rptr.3d 395

The PEOPLE, Plaintiff and Respondent,

v.Salvatore CHILELLI, Defendant and Appellant.

B247311

Court of Appeal,

Second District, Division 5, California.

Filed April 14, 2014

See 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Introduction To Crimes, § 11 et seq.

APPEAL from a judgment of the Superior Court of Los Angeles County, Terry A. Bork, Judge. Affirmed as modified with directions. (Los Angeles County Super. Ct. No. BA397934)

Marilee Marshall & Associates and Christine M. Aros, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II, Viet H. Nguyen and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendant, Salvatore Chilelli, pled no contest to stalking in violation of Penal Code section 646.9, subdivision (b).¹ As charged in the felony complaint, defendant's stalking-related activity was a single offense consisting of a continuing course of conduct. According to the felony complaint, defendant stalked the victim between July 23, 2009, through May 18, 2012. This time period, July 23, 2009, through May 18, 2012, straddled three changes in the law governing the rate at which presentence conduct credits accrue. The presentence conduct credit computation method on May 18, 2012, was slightly less favorable than during one of the three accrual rates in effect during defendant's continuous course of conduct. At our request, the parties have briefed the question of whether the slightly less favorable accrual rate can apply to defendant without violating federal and state ex post facto provisions. We conclude there is no ex post facto violation because of the continuing nature of defendant's criminal conduct. We modify defendant's presentence custody credit. We affirm the judgment in all other respects.

II. DISCUSSION

A. Defendant Committed A Continuing Offense

In order to resolve the ex post facto question, we must initially determine whether defendant committed a continuous offense which straddles the applicable presentence conduct accrual rate. Our Supreme Court discussed the concept of a continuing offense in Wright v. Superior Court (1997) 15 Cal.4th 521, 525–526, 63 Cal.Rptr.2d 322, 936 P.2d 101 (Wright ). In Wright, the defendant was a registered sex offender who was convicted of failing to notify law enforcement officials of a change of address. Our Supreme Court explained: “Most crimes are instantaneous since they are committed as soon as every element is satisfied. Some crimes, however, are not terminated by a single act or circumstance but are committed as long as the proscribed conduct continues. Each day brings ‘a renewal of the original crime or the repeated commission of new offenses.’ ( Toussie v. United States (1970) 397 U.S. 112, 119 [90 S.Ct. 858, 25 L.Ed.2d 156] (Toussie ).) The distinction is critical because it determines the application of many legal principles such as the statute of limitations period, venue, jurisdiction, sentencing, double jeopardy, and, as here, the prohibition against ex post facto laws. [¶] The concept of a continuing offense is well established. For present purposes, it may be formulated in the following terms: ‘Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform the duty.’ (Duncan v. State ( [Md.] 1978) [282 Md. 385, 384 A.2d 456, 459]; John v. State [ (Wis.1980) 96 Wis.2d 183, 291 N.W.2d 502,] 505.) Thus, when the law imposes an affirmative obligation to act, the violation is complete at the first instance the elements are met. It is nevertheless not completed as long as the obligation remains unfulfilled. ‘The crime achieves no finality until such time.’ (United States v. Cores (1958) 356 U.S. 405, 409 [78 S.Ct. 875, 2 L.Ed.2d 873]; see State v. Morse (1969) [54 N.J. 32, 252 A.2d 723, 725] ...; see also Williams v. Superior Court [ (1978) ] 81 Cal.App.3d [330,] 343–344 .)” (Wright v. Superior Court, supra, 15 Cal.4th at pp. 525–526, 63 Cal.Rptr.2d 322, 936 P.2d 101, fn. omitted.) A continuous course of conduct crime is not completed by a discrete act; the continuous course of conduct is complete when the last criminal act is performed. (People v. Grant (1999) 20 Cal.4th 150, 158–159, 83 Cal.Rptr.2d 295, 973 P.2d 72; People v. Palacios (1997) 56 Cal.App.4th 252, 257, 65 Cal.Rptr.2d 318.)

Whether a particular violation of law constitutes a continuous crime is primarily a question of statutory interpretation. (Toussie, supra, 397 U.S. at p. 115, 90 S.Ct. 858; Wright, supra, 15 Cal.4th at p. 526, 63 Cal.Rptr.2d 322, 936 P.2d 101.) In Wright, our Supreme Court considered whether the 1974 version of former section 290, subdivision (f), which required a sex offender to register with the authorities, was a continuing offense. Our Supreme Court explained how, for ex post facto purposes, a statute should be evaluated in terms of whether it was a continuing offense: “The answer, however, does not depend solely on the express language of the statute. Equally important is whether ‘the nature of the crime involved is such that [the Legislature] must assuredly have intended that it be treated as a continuing one.’ (Toussie, supra, at p. 115, 90 S.Ct. 858; see United States v. Cores, supra, 356 U.S. at pp. 409–410, 78 S.Ct. 875.) Accordingly, we must consider both the text of section 290(f) and its statutory context.” (Wright, supra, 15 Cal.4th at p. 526, 63 Cal.Rptr.2d 322, 936 P.2d 101.)

Our Supreme Court discussed the rules governing statutory construction in People v. Lopez (2003) 31 Cal.4th 1051, 1056, 6 Cal.Rptr.3d 432, 79 P.3d 548: “In construing a statute, our role is to ascertain the Legislature's intent so as to effectuate the purpose of the law. (People v. Gardeley(1996) 14 Cal.4th 605, 621, 59 Cal.Rptr.2d 356, 927 P.2d 713.) In determining intent, we must look first to the words of the statute because they are the most reliable indicator of legislative intent. (People v. Lawrence (2000) 24 Cal.4th 219, 230, 99 Cal.Rptr.2d 570, 6 P.3d 228.) If the statutory language is clear and unambiguous, the plain meaning of the statute governs. (Id. at pp. 230–231, 99 Cal.Rptr.2d 570, 6 P.3d 228.)” In People v. Brookfield (2009) 47 Cal.4th 583, 592, 98 Cal.Rptr.3d 535, 213 P.3d 988, our Supreme Court further explained: “ ‘We do not, however, consider the statutory language “in isolation.” [Citation.] Rather, we look to “the entire substance of the statute ... to determine the scope and purpose of the provision.... [Citation.]” [Citation.] That is, we construe the words in question “ ‘in context, keeping in mind the nature and obvious purpose of the statute....’ ” ' (People v. Murphy (2001) 25 Cal.4th 136, 142 [105 Cal.Rptr.2d 387, 19 P.3d 1129].)”

Here, defendant was convicted of stalking. The Legislature has defined stalking as a crime requiring a continuous course of conduct. (See People v. Ibarra (2007) 156 Cal.App.4th 1174, 1198, 67 Cal.Rptr.3d 871; People v. Jantz (2006) 137 Cal.App.4th 1283, 1292–1293, 40 Cal.Rptr.3d 875; People v. Zavala (2005) 130 Cal.App.4th 758, 769, 30 Cal.Rptr.3d 398; People v. Kelley (1997) 52 Cal.App.4th 568, 576, fn. 5, 60 Cal.Rptr.2d 653.) Section 646.9, subdivision (a) states, “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....” (Italics added.) Section 646.9, subdivision (e) defines “harasses,” “For the purposes of this section, ‘harasses' means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.” (Italics added.) Section 646.9, subdivision (f) defines “course of conduct:” “For the purposes of this section, ‘course of conduct’ means two or more acts occurring over a period of time, however, short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’ ” (§ 646.9, subd. (f), italics added.) The clear and unambiguous language of section 646.9 defines stalking as a continuous course of conduct crime. (Accord People v. Grant, supra, 20 Cal.4th at p. 155, 83 Cal.Rptr.2d 295, 973 P.2d 72 [section 288.5 prohibits continuous sexual abuse of a child, a continuous course of conduct]; see In re E.J. (2010) 47 Cal.4th 1258, 1273, 104 Cal.Rptr.3d 165, 223 P.3d 31.)

Here, defendant pled no contest to stalking the victim between July 23, 2009, and May 18, 2012. In calculating custody and conduct credits, as with other sentencing decisions, the trial court could consider, and impliedly did evaluate, all of the information before it relative to the crime. (Williams v. Oklahoma (1959) 358 U.S. 576, 584, 79 S.Ct. 421, 3 L.Ed.2d 516; People v.Arbuckle (1978) 22 Cal.3d 749, 754, 150 Cal.Rptr. 778, 587 P.2d 220; People v. Lamb (1999) 76 Cal.App.4th 664, 683, 90 Cal.Rptr.2d 565.) Substantial evidence in the record as a whole established a continuing course of conduct that straddled various presentence conduct credit accrual rates. We have evaluated: probation officers' reports; defendant's January 23, 2013, probation violation hearing transcript; and law enforcement investigation reports. That evidence demonstrates: defendant began stalking the victim in July 2008; the victim first obtained a restraining order and began documenting defendant's acts in 2009; defendant continued to stalk the victim relentlessly through May 18, 2012; and defendant was arrested on...