 1   Filed 5/20/14

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                                   CERTIFIED FOR PUBLICATION
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                         APPELLATE DIVISION OF THE SUPERIOR COURT
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                        STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
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     THE PEOPLE,                                          )   BR 051027
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             Plaintiff and Respondent,                    )   (Central Trial Court
11                                                        )   No. 2CA05968)
             v.                                           )
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     JOHN ASTALIS,                                        )
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             Defendant and Appellant.                     )   OPINION
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16           APPEAL from a judgment of the Superior Court of Los Angeles County, Central Trial

17   Court, Renee F. Korn, Judge. Affirmed.

18           Deborah Blanchard for Defendant and Appellant.

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

20   and Respondent.

21
22
23                                           INTRODUCTION

24           Defendant John Astalis appeals the judgment of conviction following a jury trial for

25   violating a restraining order (Pen. Code, § 273.6, subd. (a)), and for making repeated telephone

26   calls and repeated contact by means of an electronic communication device with the intent to

27   annoy or harass (Pen. Code, § 653m, subd. (b)). On appeal, he seeks reversal of only the

28   conviction for making repeated calls and repeated electronic contacts, contending that Penal


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 1   Code section 653m, subdivision (b) is unconstitutionally overbroad under the First
 2   Amendment, and violates due process of law because it is vague. As discussed below, we
 3   affirm.
 4                                             BACKGROUND
 5             A complaint charged defendant with violating Penal Code section 653m, subdivision (b).
 6   It was alleged that, with the intent to annoy and harass, he made repeated telephone calls, and
 7   repeated contact by means of electronic communication devices, and by a combination thereof,
 8   directed at Bondan Kosenko. Defendant pled not guilty and the case proceeded to trial.
 9             The evidence at trial pertinent to the Penal Code section 653m, subdivision (b) charge
10   showed that defendant became extremely jealous upon learning that Kosenko stayed at the
11   home of defendant‟s estranged wife, Anne-Marie Ackerman. During a span of about one
12   month, defendant called Kosenko on the telephone several times and left voicemail messages,
13   insisting Kosenko call him, and accusing Kosenko of having “sex parties” at the house.
14   Defendant during this time also sent Kosenko e-mail and text messages, calling him
15   “Beelzebub” and other derogatory names, and alleging Kosenko was engaging in lewd activity
16   at the house in front of defendant‟s minor children. Both Kosenko and Ackerman testified
17   Kosenko did not engage in any such behavior, nor was there any reason for defendant to so
18   suspect. In the following four months, defendant left over 40 postings on Kosenko‟s Facebook
19   page, unjustifiably stating Ackerman was mentally ill, and leaving many incoherent messages.
20   Kosenko testified he felt harassed, intimidated, threatened, and annoyed by the calls and
21   contacts. William Bowles and Mary Ann Quintana testified on behalf of defendant that they
22   knew Ackerman, and in their opinion, Ackerman was not an honest person. Defendant testified
23   that he only tried to contact Kosenko because he was concerned about the welfare of his minor
24   children who lived with Ackerman, and he did not intend to annoy or harass Kosenko.
25             Defendant was found guilty, and the court imposed a probationary sentence. He filed a
26   timely notice of appeal.
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 1                                                DISCUSSION
 2   I.     The Statute Is Not Overbroad
 3          General Principles
 4          The First Amendment to the United States Constitution states that “„Congress shall make
 5   no law . . . abridging the freedom of speech . . . .‟” (Aguilar v. Avis Rent A Car System, Inc.
 6   (1999) 21 Cal.4th 121, 133.) This is a fundamental right applicable to the states through the
 7   due process clause of the Fourteenth Amendment. (Id. at pp. 133-134.)
 8          Under the overbreadth doctrine, “litigants may challenge a statute not because their own
 9   rights of free expression are violated, but because the very existence of an overbroad statute
10   may cause others not before the court to refrain from constitutionally protected expression.
11   [Citations.]” (In re M.S. (1995) 10 Cal.4th 698, 709.) In order to not be unconstitutionally
12   overbroad, “statutes attempting to restrict or burden the exercise of First Amendment rights
13   must be narrowly drawn and represent a considered legislative judgment that a particular mode
14   of expression has to give way to other compelling needs of society. [Citations.]” (Broadrick v.
15   Oklahoma (1973) 413 U.S. 601, 611-612.)
16          Courts have “insisted that the overbreadth involved be „substantial‟ before the statute
17   involved will be invalidated on its face.” (New York v. Ferber (1982) 458 U.S. 747, 769.)
18   “Substantial overbreadth” requires a showing of actual or serious potential encroachments on
19   fundamental rights. “[T]he mere fact that one can conceive of some impermissible applications
20   of a statute is not sufficient to render it susceptible to an overbreadth challenge. . . . [¶] . . .
21   [T]here must be a realistic danger that the statute itself will significantly compromise
22   recognized First Amendment protections of parties not before the Court for it to be facially
23   challenged on overbreadth grounds. [Citations.]” (Members of City Council of Los Angeles v.
24   Taxpayers for Vincent (1984) 466 U.S. 789, 800-801.) Facial overbreadth “is, manifestly,
25   strong medicine” which has been used “sparingly and only as a last resort,” and which “has not
26   been invoked when a limiting construction has been or could be placed on the challenged
27   statute.” (Broadrick v. Oklahoma, supra, 413 U.S. at p. 613.)
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 1          Application to the Statute
 2          Penal Code section 653m, subdivision (b) provides, “Every person who, with intent to
 3   annoy or harass, makes repeated telephone calls or makes repeated contact by means of an
 4   electronic communication device, or makes any combination of calls or contact, to another
 5   person is, whether or not conversation ensues from making the telephone call or contact by
 6   means of an electronic communication device, guilty of a misdemeanor. Nothing in this
 7   subdivision shall apply to telephone calls or electronic contacts made in good faith or during
 8   the ordinary course and scope of business.” The term “electronic communication device” is
 9   defined to include “telephones, cellular phones, computers, video recorders, facsimile
10   machines, pagers, personal digital assistants, smartphones, and any other device that transfers
11   signs, signals, writing, images, sounds, or data.” (Pen. Code, § 653m, subd. (g).)
12          With respect to the requirement that the statute serve the “compelling needs of society”
13   (Broadrick v. Oklahoma, supra, 413 U.S. at p. 612), we are guided by People v. Hernandez
14   (1991) 231 Cal.App.3d 1376, 1382 (Hernandez). The Court of Appeal held a former version of
15   Penal Code section 653m, subdivision (b) was not unconstitutionally overbroad. The statute at
16   the time provided a person was guilty of a misdemeanor if he or she made a telephone call,
17   “with intent to annoy another,” and “without disclosing his true identity to the person
18   answering the telephone.” (Id. at p. 1379, fn. 1.) Hernandez found “[t]he „protection of
19   innocent individuals from fear, abuse or annoyance at the hands of persons who employ the
20   telephone, not to communicate, but for other unjustifiable motives,‟” was a compelling
21   government interest supporting regulation of speech. (Id. at p. 1381.)
22          Protecting individuals from unwanted calls and contact in the present version of the
23   statute—which applies to both making repeated telephone calls and making repeated contact by
24   means of electronic communication devices, including sending text messages and leaving
25   messages on the internet (see Pen. Code, § 653m, subd. (g))—is also a compelling government
26   interest. The government has an important interest in protecting the substantial privacy
27   interests of individuals from being invaded in an intolerable manner. (See Cohen v. California
28   (1971) 403 U.S. 15, 21.) “„The purpose of [Penal Code] section 653m is to deter people from

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 1   making harassing [communications] with the intent to annoy and thus, to secure an individual‟s
 2   right to privacy against unwanted intrusion.‟ [Citation.]” (People v. Powers (2011) 193
 3   Cal.App.4th 158, 164.)
 4          Although not considered by Hernandez, the government has a strong interest in
 5   protecting persons from abusive intrusions by means of electronic communication devices,
 6   including repeated contact through the internet. “Computers and Internet access have become
 7   virtually indispensable in the modern world of communications and information gathering”
 8   (United States v. Peterson (2nd Cir. 2001) 248 F.3d 79, 83), and computers and the Internet
 9   now “„comprise[] the “backbone” of American academic, governmental, and economic
10   information systems. . . .‟ [Citation.]” (In re Stevens (2004) 119 Cal.App.4th 1228, 1234.)
11          In addition, even though the present version of the statute does not require that a
12   defendant fail to “disclose his true identity to the person” being called or contacted, the
13   government interest in protecting individuals from unwanted intrusions can be as strong, if not
14   stronger, when a person identifies himself. Receiving repeated calls and electronic
15   communications from a person the recipient knows to be the same person that has contacted
16   him over and over could be considered at least as intolerable as receiving contacts from an
17   anonymous caller.
18          Regarding the requirement that the statute must be “narrowly drawn” in restricting or
19   burdening the exercise of free speech under the First Amendment (Broadrick v. Oklahoma,
20   supra, 413 U.S. at p. 611), we find the statute passes constitutional muster. We construe the
21   statute‟s terms in order to preserve the statute‟s constitutionality. “It is the duty of this court in
22   construing a statute to ascertain and give effect to the intent of the Legislature. [Citations.]
23   And it is fundamental that the Legislature will not be presumed to intend unconstitutional
24   results. [Citations.]” (People v. Freeman (1988) 46 Cal.3d 419, 425.) “[W]here „“the terms of
25   a statute are by fair and reasonable interpretation capable of a meaning consistent with the
26   requirements of the Constitution, the statute will be given that meaning, rather than another in
27   conflict with the Constitution.”‟ [Citation.]” (People v. Davenport (1985) 41 Cal.3d 247, 264.)
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 1          The requirement in the statute that a defendant intend to annoy or harass serves to
 2   narrow the law because, by referring to a person‟s “„intent to do some further act or achieve
 3   some additional consequence, the crime is deemed to be one of specific intent.‟ [Citation.]”
 4   (Stark v. Superior Court (2011) 52 Cal.4th 368, 391.) Since specific intent to annoy or harass
 5   is required, a person who merely acts under a mistake of fact or by accident does not violate the
 6   statute. (See Pen. Code, § 26, subds. (3), (5).) “A specific intent requirement narrows the
 7   scope of telephone harassment statutes because it requires the caller to intend to cause the
 8   recipient actual psychic or emotional harm.” (Royall, Constitutionally Regulating Telephone
 9   Harassment: An Exercise in Statutory Precision (1989) 56 U.Chi. L.Rev. 1403, 1408.)
10          Penal Code section 653m, subdivision (b) requires the defendant make “repeated” calls
11   or contacts. “Repeated” means “recurring” or “frequent.” (Webster‟s 9th New Collegiate Dict.
12   (1988) p. 998; 2 Oxford English Dict. (1971) p. 2494; see Scott v. State (Tex. Crim. App. 2010)
13   322 S.W.3d 662, 669, fn. 12 [applying this definition in upholding telephone harassment
14   statute].) Defining the word “repeated” in this manner serves to narrow the scope of the statute;
15   “[p]rudence may justify a hands-off policy for single calls made with the intent to harass, but as
16   harassing calls are repeated the state interest in intervening to protect the recipient becomes
17   more compelling.” (Royall, supra, 56 U.Chi. L.Rev. at p. 1431; see Scott v. State, supra, 322
18   S.W.3d at p. 669, fn. 12.)
19          The statute further requires that the person intend to “annoy” or “harass.” “Annoy,” for
20   purposes of annoying or molesting a child under Penal Code section 647.6, subdivision (a)(1),
21   means “conduct designed to disturb, irritate, offend, injure, or at least tend to injure, another
22   person. [Citations.]” (People v. Lopez (1998) 19 Cal.4th 282, 289.) “Harass,” in the context of
23   stalking under Penal Code section 646.9, “means . . . a knowing and willful course of conduct
24   directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person,
25   and that serves no legitimate purpose.” (Pen. Code, § 646.9, subd. (e).)
26          Use of these definitions is fair and reasonable given the similarity between the unwanted
27   intrusions involved in the laws. Regarding both annoying children and stalking, the
28   government‟s interest is, in part, to protect the privacy of the victims, a like interest which is

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 1   served by the present statute. (See People v. Kongs (1994) 30 Cal.App.4th 1741, 1752 [Pen.
 2   Code, § 647.6, subd. (a)(1) serves government‟s substantial interest in preventing conduct
 3   which invades a child‟s privacy and security]; People v. Borrelli (2000) 77 Cal.App.4th 703,
 4   716 [aim and effect of Pen. Code, § 646.9 is to protect individuals in the exercise and
 5   enjoyment of their “constitutional rights of privacy and the pursuit of happiness”]; cf. Brekke v.
 6   Wills (2005) 125 Cal.App.4th 1400, 1412 [Code Civ. Proc, § 527.6, providing expedited
 7   injunctive relief to victims of harassment, was enacted “„to protect the individual‟s right to
 8   pursue safety, happiness and privacy‟”].) In addition, the harassing conduct in stalking can be
 9   performed by telephone or by means of electronic communication devices, such as e-mail or
10   text messages (see Pen. Code, § 646.9, subd. (g)), and there is no reason why a child could not
11   be annoyed through the telephone or by electronic communications.
12          Lastly, we also determine the statute does not pose “a realistic danger” that it will
13   “significantly compromise recognized First Amendment protections.” (Members of City
14   Council of Los Angeles v. Taxpayers for Vincent, supra, 466 U.S. at p. 801.) A telephone
15   harassment statute can be found unconstitutional if it does not exempt a substantial number of
16   legitimate calls. “[T]here are times when citizens make legitimate calls with the intent to annoy
17   the recipient of the call, e.g., a consumer calling the seller or producer of a product to express
18   dissatisfaction of product performance, a businessman calling another to protest failure to
19   perform a contractual obligation, a constituent calling his legislator to protest the legislator‟s
20   stand on an issue, etc.” (State v. Dronso (1979) 90 Wis.2d 110, 117 [279 N.W.2d 710, 714], fn.
21   omitted.) If such calls fall within the sweep of a statute, “[s]uch proscription would be a real
22   and substantial interference with free speech.” (Ibid., fn. omitted.) The statute here does not
23   suffer from such an infirmity because it specifically exempts “telephone calls or electronic
24   contacts made in good faith or during the ordinary course and scope of business.” (Pen. Code,
25   § 653m, subd. (b); see State v. Elder (Fla. 1980) 382 So.2d 687, 691 [upholding
26   constitutionality of telephone harassment statute which included similar exemption for good
27   faith business calls].)
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 1   II.    The Statute Does Not Violate Due Process
 2          “The Fourteenth Amendment to the United States Constitution and article I, section 7 of
 3   the California Constitution, each guarantee that no person shall be deprived of life, liberty, or
 4   property without due process of law. This constitutional command requires „a reasonable
 5   degree of certainty in legislation, especially in the criminal law . . . .‟ [Citation.] „[A] penal
 6   statute [must] define the criminal offense with sufficient definiteness that ordinary people can
 7   understand what conduct is prohibited and in a manner that does not encourage arbitrary and
 8   discriminatory enforcement.‟ [Citations.] [¶] It is established that in order for a criminal
 9   statute to satisfy the dictates of due process, two requirements must be met. First, the provision
10   must be definite enough to provide a standard of conduct for those whose activities are
11   proscribed. [Citations.] . . . [¶] Second, the statute must provide definite guidelines for the
12   police in order to prevent arbitrary and discriminatory enforcement. [Citations.]” (People v.
13   Heitzman (1994) 9 Cal.4th 189, 199-200.)
14          Narrowly interpreted to preserve its constitutionality under the First Amendment, a
15   person violates the statute only when he or she (1) makes “repeated” contacts, meaning
16   “recurring” or “frequent” contacts; (2) with the specific intent to “annoy,” meaning
17   intentionally engaging in “conduct designed to disturb, irritate, offend, injure, or at least tend to
18   injure, another person,” or with the specific intent to “harass,” meaning engaging in “a knowing
19   and willful course of conduct directed at a specific person that seriously alarms, annoys,
20   torments, or terrorizes the person, and that serves no legitimate purpose.” Finally, calls or
21   contact in “good faith or during the ordinary course and scope of business” are excluded from
22   the statute. (Pen. Code, § 653m, subd. (b).) Thus construed, Penal Code section 653m,
23   subdivision (b) is not vague on its face.
24          The elements of the statute satisfy the first requirement of due process because they are
25   definite enough for a person to understand the law. The statute provides a “person of ordinary
26   intelligence a reasonable opportunity to know what is prohibited, so that he [or she] may act
27   accordingly.” (Grayned v. City of Rockford (1972) 408 U.S. 104, 108.) The requirement that
28   persons have the specific intent to annoy or harass, in particular, provides a clear standard of

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 1   conduct for persons to obey. “Courts are in virtually unanimous agreement that the
 2   requirement of specific intent (that is, requiring the government to prove that the caller‟s
 3   subjective purpose in making the call was to annoy or harass) saves [harassment] statutes . . .
 4   from vagueness problems.” (McKillop v. State (Alaska Ct.App. 1993) 857 P.2d 358, 364, fn. 6
 5   [collecting cases].)
 6          Similarly, the statute satisfies the second requirement of due process because its specific
 7   terms provide law enforcement with sufficient guidelines to check arbitrary and discriminatory
 8   enforcement of the law. The statute is clear regarding what a suspect must do to be guilty of
 9   the crime and does not vest excessive discretion in law enforcement. (See People v.
10   Richardson (1994) 33 Cal.App.4th Supp. 11, 16.)
11                                             DISPOSITION
12          The judgment of conviction is affirmed.
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15                                                     RICCIARDULLI, J.
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            WE CONCUR.
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                                                       KUMAR, Acting P. J.
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                                                       B. JOHNSON, J.
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