People v. Falck

• Decision Date: 27 January 1997
• Docket Number: No. A071025,A071025
• Citation: 60 Cal.Rptr.2d 624,52 Cal.App.4th 287
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 646, 97 Daily Journal D.A.R. 986 The PEOPLE, Plaintiff and Respondent, v. George F. FALCK, Defendant and Appellant.

Page 624

60 Cal.Rptr.2d 624

52 Cal.App.4th 287, 97 Cal. Daily Op. Serv. 646,

97 Daily Journal D.A.R. 986

The PEOPLE, Plaintiff and Respondent, v. George F. FALCK, Defendant and Appellant.

No. A071025.

Court of Appeal, First District, Division 1, California.

Jan. 27, 1997.

Certified for Partial Publication ^*

Rehearing Denied Feb. 24, 1997.

Review Denied April 16, 1997.

[52 Cal.App.4th 290] Gail Harper, First District Appellate Project, for Appellant.

Daniel E. Lungren, Attorney General, George H. Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, for Respondent.

STEIN, Associate Justice.

Appellant George F. Falck stands convicted of stalking, a violation of Penal Code section 646.9, subdivision (a). ¹ Appellant

contends on appeal that the term "safety" set forth in the statute is unconstitutionally vague and overbroad. He further raises issues of the sufficiency of the [52 Cal.App.4th 291] evidence to support his conviction. We reject the contention of unconstitutionality. We find that the evidence is sufficient to support appellant's conviction, and accordingly affirm the judgment. ^**

FACTS

Appellant has been diagnosed as suffering from schizophrenia. His ability to control his impulses is reduced unless he receives and takes antipsychotic medication. Although appellant graduated from college, received an M.B.A. and served in the army, receiving an honorable discharge, he has been unable to obtain employment since 1978 or 1979, apparently declining into homelessness until 1982 or 1983 when he was given a place to sleep by the Resurrection Lutheran Church.

In 1982, when appellant was 35 or 36, he began to frequent a Nations' Hamburgers restaurant. There he noticed, and became fixated with, a 19-year-old woman working at the restaurant. He sent her 12 black roses. One or two days later he began to send her letters at the restaurant, identifying himself as George Frederick and writing about astrology and how they were meant to be together for eternity. Appellant sent the victim two or three letters a day. The manager of the restaurant told appellant he would be arrested if he came into the restaurant again. Appellant did go into the restaurant again, the police were called, and appellant was arrested. Appellant was put on six months court probation and ordered to stay away from the victim.

For 12 years appellant almost managed to comply with this admonition, although he did not cease thinking about the victim. He obtained a copy of her birth certificate. He obtained some pictures of her from her high school year book. He learned from county records that she had married. He tried to call her at two different telephone numbers over this period of time, but was unsure if she was the person who answered the telephone. In November 1994, appellant stopped taking the medication prescribed for his mental condition, and shortly thereafter embarked on the course of conduct leading to the charges filed against him in this case. ² Appellant explained at trial that he believed that if he had been able to continue seeing the victim in 1982 they would have married. He believes that astrology is God's system for creating different types of people. In late 1994 to early 1995, his study of astrology and the movement of the planets convinced him that the time was right to try again to get together with the victim. He felt that it was nearly imperative that he contact her.

Appellant telephoned the victim at her home in January 1995, identifying himself as "George Frederick," and stating: "I found you. I can tell by your voice." The victim hung up immediately and called the police. Appellant called again. The victim's husband answered, but disguised his voice as the victim's. Appellant, believing himself to be talking to the victim, said that they were deemed by God to be together forever, and spoke about astrology. The victim's husband identified himself, telling appellant not to call again. Appellant called the next morning, again reaching the victim's husband. The husband told appellant that a police report had been filed. The victim and her husband changed their telephone number. The victim received no further calls from appellant. She began, however, to receive letters from him. Appellant sent the victim pictures of her and pictures of himself. He sent her pornographic pictures cut from a magazine Appellant was arrested on February 3, 1995. The police searched his apartment. They found pictures of the victim in various places. They found written notes referring to astrological matters linking appellant's name to the victim's. One of the notes referred to the date March 21, 1982. Appellant told the police that March 21, 1982, was the date he and the victim were married. Some of the notes referred to the victim by her first name and appellant's last name. The police also found Hustler Magazines, some with cut-out spaces corresponding to the pictures sent to the victim, and a copy of the advertisement placed by appellant in the newspaper. At a police interview following his arrest, appellant openly discussed his obsession with the victim. Appellant's statements were coherent but rambling. He discussed the victim, astrology, his need to be dominated sexually, his past, his illness, and his intention to marry the victim. He explained that he had obtained the victim's pictures from high school year books obtained at the library. He stated that he could not keep away from the victim, and asked the interviewing officer to take him to the victim or at least to give her his telephone number.

putting captions on them explaining that they were intended to represent the victim. Appellant's letters were sprinkled with astrological references, with discussions of the sexual acts appellant wished to experience with the victim and his anticipation of their impending marriage. In addition, appellant placed a personal advertisement in the newspaper, which the victim read, that recited that appellant had to contact her, that he loved her and had to find her and that he wanted to marry her.

By the time of the trial, appellant was again taking medication. He told the jury that he never had intended to cause any harm to the victim or to frighten her. He had wanted to marry her, but had no intention of forcing her to marry him. He stated that his interest in the victim had faded, and that he no longer was in love with her or wanted to marry her.

DISCUSSION

I.

Constitutionality of Section 646.9

California's high court recently summarized the relevant legal principles:

"The Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution, each guarantee that no person shall be deprived of life, liberty, or property without due process of law. This constitutional command requires 'a reasonable degree of certainty in legislation, especially in the criminal law....' (In re Newbern (1960) 53 Cal.2d 786, 792 [3 Cal.Rptr. 364, 350 P.2d 116].) '[A] penal statute [must] define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.' (Kolender v. Lawson (1983) 461 U.S. 352, 357 [103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 908-909]; see also Burg v. Municipal Court (1983) 35 Cal.3d 257, 269, 198 Cal.Rptr. 145, 673 P.2d 732.)

"It is established that in order for a criminal statute to satisfy the dictates of due process, two requirements must be met. First, the provision must be definite enough to provide a standard of conduct for those whose activities are proscribed. (People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 389 [250 Cal.Rptr. 515, 758 P.2d 1046]; see also Walker v. Superior Court (1988) 47 Cal.3d 112, 141 [253 Cal.Rptr. 1, 763 P.2d 852].) Because we assume that individuals are free to choose between lawful and unlawful conduct, 'we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he [or she] may act accordingly. Vague laws trap the innocent by not providing fair warning.' (Grayned v. City of Rockford (1972) 408 U.S. 104, 108 [92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222, 227]; see Cranston v. City of Richmond (1985) 40 Cal.3d 755, 763 [221 Cal.Rptr. 779, 710 P.2d 845].)

"Second, the statute must provide definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement.

                (People v. Superior Court (Caswell) supra, 46 Cal.3d at p. 390, 250 Cal.Rptr. 515, 758 P.2d 1046;  Burg v. Municipal Court, supra, 35 Cal.3d 257, 269, 198 Cal.Rptr. 145, 673 P.2d 732.)   When the Legislature fails to provide such guidelines, the mere existence of a criminal statute may permit ' "a standardless sweep" ' that allows police officers, prosecutors and juries ' "to pursue their personal predilections." '  (Kolender v. Lawson, supra, 461 U.S. at p. 358 [103 S.Ct. at p. 1858, 75 L.Ed.2d at pp. 909-910], quoting Smith v. Goguen (1973) [1974] 415 U.S. 566, 575 [94 S.Ct. 1242, 1248, 39 L.Ed.2d 605, 613];  Walker v. Superior Court, supra, 47 Cal.3d at p. 142, 253 Cal.Rptr. 1, 763 P.2d 852.)"  (People v. Heitzman (1994) 9 Cal.4th 189, 199-200, 37 Cal.Rptr.2d 236, 886 P.2d 1229.)
                

Section 646.9 has withstood constitutional challenge for its inclusion of the term "repeatedly." (People v. Heilman (1994) 25 Cal.App.4th 391, 400-401, 30 Cal.Rptr.2d 422.) It also has been found that the terms "harasses" and "credible threat" are sufficiently defined by the statute, and that the terms "willfully" and "maliciously" are sufficiently definite. (People v. McClelland (1996) 42 Cal.App.4th 144, 151, 49 Cal.Rptr.2d 587.) Appellant here challenges the term "safety," present in the phrase "Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in...