Filed 7/24/13
                         CERTIFIED FOR PARTIAL PUBLICATION*




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                              (Placer)
                                                ----


THE PEOPLE,                                                            C069702

                  Plaintiff and Respondent,                  (Super. Ct. No. 62106498)

        v.

DONALD JAMES MCPHEETERS,

                  Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of Placer County, Mark S. Curry,
Judge. Affirmed as modified.

      J. Wilder Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and
Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.




* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II, III, and IV of the Discussion.

                                                 1
       A jury convicted defendant Donald James McPheeters of felony stalking in
violation of a restraining order (Pen. Code, § 646.9, subd. (b) [count 1]; unless otherwise
stated, all statutory references that follow are to the Penal Code), and three counts of
disobeying a court order (§ 166, subds. (a)(4), (c)(1) [counts 2 through 4]). The trial
court found true an allegation as to count 1 that defendant had a prior conviction for
assault with a deadly weapon (§ 245, subd. (a)(1)) within the meaning of sections 667,
subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d). The court
sentenced defendant to the midterm of three years in state prison for count 1, doubled to
six years because of defendant‟s prior strike. For counts 2 through 4, the court sentenced
defendant concurrently to six months each in state prison. The court awarded defendant
175 days of actual credit and 87 days of conduct credit, for a total of 262 days credit.
       Defendant contends on appeal that the trial court erred in instructing the jury, that
the six-month sentences on the misdemeanor charges should have been stayed pursuant to
section 654, and that he is entitled to two-for-two conduct credits under the current
section 4019 rather than four-for-two conduct credits under former section 4019, which
was in effect when defendant was arrested. We agree the misdemeanor sentences on
counts 2 through 4 should have been stayed under section 654. In all other respects, we
affirm the judgment.

                                FACTS AND PROCEEDINGS
       Defendant and the victim, Kathryn C., met in 2003. Although never married, they
were in a relationship for approximately five and a half years. They had three children
together, one of whom passed away shortly after birth. The couple broke up in 2009
while Kathryn C. was pregnant with their third child.
       Defendant has a long and violent criminal history, and in particular a history of
committing domestic violence against Kathryn C. Defendant verbally and emotionally
abused Kathryn C. on countless occasions and physically abused her three times. In


                                              2
April 2004, defendant and Kathryn C. were watching a fight on television and were
rooting for opposing fighters. Kathryn C. playfully teased defendant when her contestant
won. Defendant began screaming at Kathryn C. and threw a phone across the room,
hitting her in the leg. Defendant was convicted of a misdemeanor domestic violence
charge.
       In September 2004, Kathryn C. was sitting on a bicycle she and defendant had
purchased. After getting into an argument, defendant grabbed Kathryn C.‟s wrist and
yanked her off the bike. Kathryn C. sustained bruises and scratches to her wrist and
ankle. Kathryn C. then went into the house she shared with her mother. Defendant
followed, charging towards the screen door and throwing his body against the door to try
to force his way into the house.
       Defendant began yelling at Kathryn C. for his medication, which was located in
her room upstairs. After retrieving defendant‟s pills, Kathryn C. handed the medicine to
her mother. Kathryn C.‟s mother placed the pills in a dining room window. Defendant
tried to grab Kathryn C.‟s mother and pull her through the window. Sometime during the
melee, defendant made his way into the house and Kathryn C.‟s mother attempted to call
911. After she hung up, the emergency operator called back and Kathryn C. answered
the phone. While Kathryn C. was on the phone, defendant pulled the phone plug out of
the wall stating he did not want Kathryn C. speaking to the police and that he was not
going back to jail. Defendant grabbed a knife and ran upstairs threatening to kill himself.
Among other things, defendant was convicted in Placer County of misdemeanor domestic
battery.
       In June 2005 when defendant and Kathryn C. were living in the state of
Washington, defendant became enraged when he could not locate a shaving razor. After
screaming at Kathryn C. that she had lost the razor, defendant charged her and threw her
on the bed. Defendant shoved his forearm across Kathryn C.‟s throat and began choking
her for approximately a minute; Kathryn C. could barely breathe. While choking her

                                             3
defendant stated, “I don‟t want you to breathe.” Defendant‟s mother ran into the
bedroom, jumped on defendant‟s back, and pulled his hair to get him to stop choking
Kathryn C. Defendant was convicted of a felony domestic violence-related assault.
       No-contact orders were issued in Washington and California protecting
Kathryn C. from defendant. Following the choking incident, a Washington court issued a
no-contact order in September 2005. In February 2010, the Placer County Superior Court
issued a criminal protective order prohibiting defendant from having any contact with
Kathryn C. That order was modified in March 2010 to further prohibit defendant from
coming within 100 yards of Kathryn C. In August 2010, the Placer County court again
modified the protective order requiring defendant to stay at least 60 yards away from
Kathryn C., but permitting peaceful contact for the sole purpose of safely exchanging
their children during court-ordered supervised visits between defendant and the children
at a designated facility known as Parenting Time.
       Defendant‟s violent past terrified Kathryn C., and she was very afraid for herself
and her children because defendant continually violated the no-contact orders. She called
the police six to 10 times to report defendant‟s violations. Although he had been arrested
and jailed on at least one violation, upon his release defendant immediately contacted
Kathryn C. Kathryn C. did not seek any new restraining orders because she believed
defendant did not abide by the existing protective orders and she felt the orders did little
to keep him away from her.
       Between 2005 and 2010, Kathryn C. invited defendant over to her house
approximately 15 times despite the no-contact orders so that he could see his son and
help her while she was pregnant with their third child. After the birth in April 2010,
Kathryn C. stopped inviting defendant over.
       Yet defendant continued contacting Kathryn C. On June 19, 2010, defendant
showed up unannounced at Kathryn C.‟s home accusing her of stealing money from his
father. When police later spoke to defendant on the phone about the incident, reminding

                                              4
him of the no-contact restraining order, defendant said he did not care whether the
protective order was no-contact or peaceful contact because he intended to continue
contacting Kathryn C. and his children regardless of the nature of the order.
        On August 10, 2010, defendant had a friend living near Kathryn C. call her to
convince Kathryn C. to bring the children over to the friend‟s house to see defendant.
Kathryn C. called police to report a violation of the no-contact order. Defendant was
convicted of a misdemeanor for violating the restraining order.
        During this time period Kathryn C. started dating another man, David F. They
began dating at the end of June 2010 and by August 2010 David F. was living fulltime
with Kathryn C. at her house. The three had been mutual friends when Kathryn C. and
defendant were together. After Kathryn C. and David F. began dating, defendant was
verbally combative and repeatedly tried to pick fights with David F. in front of Kathryn
C. or otherwise make him uncomfortable. She believed defendant was jealous of David
F. because he perceived him as taking over defendant‟s family. Around this time,
defendant told Kathryn C., “If you don‟t be careful, something is going to happen to
you.”
        Toward the end of April or beginning of May 2011, defendant moved into a
friend‟s apartment located next door to Kathryn C.‟s apartment. After moving in,
defendant‟s contacts with Kathryn C. became more frequent and aggressive. Defendant
could see Kathryn C. walking from her residence to the sidewalk through a window in his
apartment. He began contacting her two to three times a day--nearly every time Kathryn
C. left her apartment. In approximately one month, defendant contacted Kathryn C.
between 40 and 50 times.
        During this time defendant repeatedly asked Kathryn C. to let him see or take the
children. When Kathryn C. told him no and asked him to leave her alone, defendant
swore at her and angrily stated, “Somebody needs to beat you up . . . .” On multiple
occasions after Kathryn C. pleaded with defendant to stop bothering her, defendant told

                                             5
Kathryn C. that “Somebody is going to kick your butt just like I did this to [certain
individuals defendant had hurt in other fights].”
       On May 20, 2011, defendant approached Kathryn C. and David F. near the garage
of Kathryn C.‟s apartment requesting to see the children. David F. told defendant they
did not want to speak to him right then and asked him to go away. Defendant replied
either, “Oh, talk to me that way, someone is going to end up breaking your jaw for
talking to somebody that way,” or “You better get the fuck out of here or you‟re going to
get knocked out.” 1 After Kathryn C. told David F. she did not feel safe with defendant
living next door because he constantly intimidated her, David F. flagged down a passing
police officer, Officer Fox, and reported the incident.
       Officer Fox located and arrested defendant a short distance away. After being
placed under arrest, defendant became irate, cussing at Officer Fox and calling him a
“piece of shit.” Defendant repeated that the officer was a “piece of shit” and that he was
“just as fucked up as the justice system.” While in the patrol car, defendant told the
officer that the restraining order against him “didn‟t mean shit, and he was going to be
out [of jail] in 20 minutes . . . and he was going to go back to [Kathryn C.‟s] house
immediately.” When the officer responded that he could not contact Kathryn C. due to
the restraining order defendant replied, “You can‟t keep me away. I have proof. There‟s
two warrants for the same thing and the dollar amounts are so low for the warrants that
I‟ll just . . . [get released on his own recognizance] from the jail.”
       Based on defendant‟s statements about immediately returning to Kathryn C.‟s
house upon his release, Officer Fox contacted the on-call judge to raise defendant‟s bail.
When defendant learned of the higher bail, defendant said he did not care and would not



1 David F. testified that defendant made the comment regarding the broken jaw, while
Officer Fox testified that David F. told him on the day of the incident that defendant said
David F. had “better get the fuck out of here or you‟re going to get knocked out.”

                                               6
show up when his case was called. Defendant also said, “When I get out of here, if I
shoot her, there‟s nothing you can do about it.” Defendant repeated the statement when
asked by the officer what he had said.
       Officer Fox called Kathryn C. and told her what defendant said about shooting
her. He asked whether Kathryn C. knew if defendant had a gun. She said she did not
know, but that she was very scared. She also informed the officer defendant had told her
there was nothing the police could do to keep him away from her.
       Defendant was charged with stalking Kathryn C. from June 1, 2010 to May 20,
2011. He was also charged with violating the no-contact orders on June 19 and August
10, 2010 and May 20, 2011. A jury convicted defendant of all charges. Defendant
timely appeals.

                                         DISCUSSION
                                              I
                                    CALCRIM No. 1301
       Defendant contends the trial court erred in instructing the jury on the stalking
charge. Defendant‟s challenge to the given instruction is three-fold.
       First, defendant alleges the trial court erred by failing to instruct the jury defendant
had to know David F. was a member of Kathryn C.‟s immediate family when he
threatened David F. in Kathryn C.‟s presence.
       Second, defendant argues the court failed to instruct the jury that threats made
about the victim to a third party could only constitute a credible threat under the statute if
defendant intended that those threats be conveyed to the victim.
       Third, defendant claims the instruction, as given, failed to require the jury to
determine whether some of defendant‟s statements were constitutionally protected free
speech under the First Amendment. As a corollary, defendant argues his statements to




                                              7
Officer Fox about shooting Kathryn C. qualified as free speech and therefore could not
form the basis of a stalking violation.

       A. Forfeiture

       Before considering defendant‟s alleged errors, we first address the People‟s
argument defendant forfeited his instructional challenge by failing to object to the
stalking instruction below. “Generally, a party forfeits any challenge to a jury instruction
that was correct in law and responsive to the evidence if the party fails to object in the
trial court.” (People v. Franco (2009) 180 Cal.App.4th 713, 719 (Franco).) Defendant‟s
claim, however, is that the instruction is not correct in law, and that it violated his federal
constitutional rights because it omitted required elements from the statute. This type of
claim need not be preserved by objection before an appellate court can address the issue.
(People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) We therefore consider defendant‟s
instructional error challenge.

       B. Standard of Review

       We determine independently whether a jury instruction correctly states the law.
(People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 [court “determine[s] whether a jury
instruction correctly states the law under the independent or de novo standard of
review”].) Our task is to determine whether the trial court “ „fully and fairly instructed
on the applicable law.‟ ” (Ibid.) We consider the instructions as a whole as well as the
entire record of trial, including the arguments of counsel. (Franco, supra, 180
Cal.App.4th at p. 720.) If reasonably possible, instructions are interpreted to support the
judgment rather than defeat it. (Ibid.)

       C. Knowledge Person Is Victim’s Immediate Family Member

       Based on CALCRIM No. 1301, the trial court instructed the jury on the stalking
charge as follows: “The defendant is charged in Count One with stalking in violation of


                                               8
Penal Code Section 646.9. To prove that the defendant is guilty of this crime, the People
must prove that:
        “1. The defendant willfully and maliciously harassed or willfully, maliciously,
and repeatedly followed another person,
        “2. The defendant made a credible threat with the intent to place the other person
in reasonable fear for her safety or for the safety of her immediate family, and
        “3. A criminal protective order in Placer County Superior Court Case No. 62-
96081 and/or a domestic violence no-contact order from Chelan County Superior Court
of Washington, Case No. 5103244 prohibiting the defendant from engaging in this
conduct against the threatened person was in effect at the time of the conduct.
        “A credible threat is one that causes the target of the threat to reasonably fear for
his or her safety or for the safety of his or her immediate family, and one that the maker
of the threat appears to be able to carry out. A credible threat may be made orally, in
writing, or electronically or may be impliedly [sic] or may be implied by a pattern of
conduct or a combination of statements and conduct. [¶] . . . [¶]
        “Immediate family means: (A) Any spouse, parent, children; [¶] (B) Any
grandchildren, grandparents, brother, sisters, related by blood or by marriage or [¶] (C)
Any person who regularly lives in the other person‟s household. . . .”
        The court‟s instruction was based on section 646.9, which reads in part: “(a) 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 . . . . [¶] . . . [¶]
        “(e) 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.



                                                   9
       “(f) 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.‟
       “(g) For the purposes of this section, „credible threat‟ means a verbal or written
threat, including that performed through the use of an electronic communication device,
or a threat implied by a pattern of conduct or a combination of verbal, written, or
electronically communicated statements and conduct, made with the intent to place the
person that is the target of the threat in reasonable fear for his or her safety or the safety
of his or her family, and made with the apparent ability to carry out the threat so as to
cause the person who is the target of the threat to reasonably fear for his or her safety or
the safety of his or her family. It is not necessary to prove that the defendant had the
intent to actually carry out the threat. The present incarceration of a person making the
threat shall not be a bar to prosecution under this section. Constitutionally protected
activity is not included within the meaning of „credible threat.‟ . . . [¶] . . . [¶]
       “(l) For purposes of this section, „immediate family‟ means any spouse, parent,
child, any person related by consanguinity or affinity within the second degree, or any
other person who regularly resides in the household, or who, within the prior six months,
regularly resided in the household.” (§ 646.9.)
       Defendant‟s position is that the challenged instruction was not correct in law
because the statute must be interpreted to require knowledge that a person is the victim‟s
immediate family member within the meaning of the section 646.9, subdivision (l),
before any statements or conduct towards that person can qualify as a credible threat to
the victim. According to defendant, statements made 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.
Absent such knowledge, defendant argues, an accused could not harbor the specific intent

                                               10
to place the victim in reasonable fear for the safety of that family member. Defendant
contends this violates section 20, which requires that “[i]n every crime or public offense
there must exist a union, or joint operation of act and intent, or criminal negligence.”
(§ 20.)
          Given the prosecution‟s theory of the credible threat, however, we need not decide
whether knowledge of one‟s status as an immediate family member of the victim is an
implicit element of the stalking statute even though it may lack any explicit statutory
requirement. This is because the prosecutor argued that defendant‟s entire course of
conduct--not just his statement to David F. in Kathryn C.‟s presence--constituted the
credible threat. The statement to David F. was but a minute aspect of this pattern of
threatening conduct.
          Prior to trial, the judge specifically asked the prosecutor to explain his theory of
the threat supporting the stalking charge. After listening to the prosecutor the judge
replied, “So your theory is that his course of conduct was intended by him to be a threat
to her?” The prosecutor responded, “Yes, your Honor.” As the prosecutor preliminarily
explained to the judge, this course of conduct included defendant‟s long history of
domestic violence against Kathryn C., his repeated violations of the no contact orders, his
statements directly to her that he would not abide by the restraining orders, his threats to
David F. in Kathryn C.‟s presence outside her home, and his conduct of watching her and
contacting her almost on a daily basis every time she left her apartment.
          During closing argument, the prosecutor reiterated his theory that defendant‟s
entire course of conduct, and not merely his threat to David F., satisfied the credible
threat element under the statute. The prosecutor first asked, “Did his conduct create a
credible threat? Did his conduct cause her to fear for her safety?” Later the prosecutor
told the jury that, “It is not just the repeated contacts. It is the repeated contacts along
with the statements along with the prior history all of that plays into this. . . . [¶] It is not



                                                11
just the fact that he violated the restraining order that is element number 3 of stalking, but
his overall course of conduct.”
       While the prosecutor did refer to the threat to David F. as one aspect of this course
of conduct, it was not the only incident forming the basis of the credible threat. When
viewing the record in light of the prosecution‟s actual theory, it is apparent that the real
issue below was whether defendant‟s pattern of conduct implied a credible threat to
Kathryn C. and not whether the statement to David F. alone constituted a threat to her.
Even defense counsel characterized the threat to David F. and the immediate family issue
as a “red herring” or “nonissue.” That defendant‟s appellate counsel, in hindsight, might
have argued the matter differently cannot alter the record of what actually occurred.
       But even if we assume, without deciding, that the trial court erred by failing to
instruct the jury that defendant had to know David F. qualified as Kathryn C.‟s immediate
family member before the statements to David F. in Kathryn C.‟s presence could qualify
as a credible threat to her, the error was harmless beyond a reasonable doubt. (People v.
Sengpadychith (2001) 26 Cal.4th 316, 324 [“a trial court‟s failure to instruct on an
element of a crime is federal constitutional error [citation] that requires reversal of the
conviction unless it can be shown „beyond a reasonable doubt‟ that the error did not
contribute to the jury‟s verdict”]; see also Chapman v. California (1967) 386 U.S. 18,
24.) The evidence overwhelmingly showed that even without the threat to David F.
defendant‟s entire course of conduct implied a credible threat to Kathryn C.
       As the prosecutor reminded the jury, defendant directly threatened Kathryn C. He
had an extensive history of domestic violence against Kathryn C.; he physically,
mentally, and emotionally abused her. Even defense counsel conceded that defendant
“did some horrible things to this woman in the past . . . [p]robably the most horrendous
thing he did to her was when he put his arm--she described it as how he was choking
her.” Based on their extensive domestic violence history, Kathryn C. was justifiably
scared of defendant.

                                              12
       Defendant repeatedly disregarded the no-contact orders, even moving in next door
to Kathryn C. and seemingly watching her from his apartment. Over the course of a
month, defendant contacted Kathryn C. 40 to 50 times--nearly every time she left her
home. He bragged about beating people up, told her someone should similarly beat her
up after she asked him to leave her alone, told her she should be careful or else something
was going to happen to her, and told her there was nothing the police could do to keep
him away from her. Similar behavior has been found to constitute a credible threat
within the meaning of section 646.9. (See, e.g., People v. Uecker (2009) 172
Cal.App.4th 583, 594-596 (Uecker) [credible threat implied by defendant‟s conduct of
following victim over seven months, placing hostile notes on her car, and positioning
himself so he could see her come and go at work, and calling over 30 times in three
weeks and leaving cryptic and irate messages on victim‟s answering machine constituted
credible threat]; People v. Halgren (1996) 52 Cal.App.4th 1223, 1233 [defendant‟s
appearance at victim‟s work, his positioning himself where he could watch people leave
the office, his repeated telephone calls insisting victim speak with defendant, and his
statements that victim would pay for her rudeness and he would “fix her” or “fix this”
constituted a credible threat with clear intent to place victim in fear for safety]; see also
People v. Norman (1999) 75 Cal.App.4th 1234, 1241, fn. 4 (Norman) [defendant‟s
attempt to climb over wall at victim‟s residence, his lies about his employment and
relationship with victim, and statements that he wanted to rape victim was sufficient to
constitute credible threat].) On this record, we are convinced beyond a reasonable doubt
that any alleged instructional error did not contribute to the verdict.

       D. Threats Communicated to Third Person

       Defendant next challenges the stalking instruction because it did not inform the
jury that before determining defendant‟s statements to Officer Fox about shooting
Kathryn C. constituted a credible threat, the jury had to find defendant intended Officer


                                              13
Fox to convey the statements to Kathryn C. In other words, defendant again asks us to
construe section 646.9 as including an additional element not expressly stated in the
statute--that of specifically intending that comments to third parties be conveyed to the
victim.
       While defendant concedes no published decisions have held such an imbedded
intent element exists in section 646.9, other courts construing an analogous threat statute
have concluded a defendant is guilty of issuing a criminal threat based on his or her
threatening statements made to a third person only if there is at least some evidence the
defendant intended the third person to relay the threatening words to the victim to
accomplish the defendant‟s goal of instilling fear in the victim. (In re David L. (1991)
234 Cal.App.3d 1655, 1659; see, e.g., In re Ryan D. (2002) 100 Cal.App.4th 854, 861;
People v. Felix (2001) 92 Cal.App.4th 905, 913-914 (Felix).) To a certain extent, these
cases support defendant‟s argument about an implicit intent to convey requirement.
       For example, in In re David L., the court noted “[t]he kind of threat contemplated
by section 422 may as readily be conveyed by the threatener through a third party as
personally to the intended victim. Where the threat is conveyed through a third party
intermediary, the specific intent element of the statute is implicated. Thus, if the
threatener intended the threat to be taken seriously by the victim, he must necessarily
have intended it to be conveyed.” (In re David L., supra, 234 Cal.App.3d at p. 1659.)
The court inferred the intent that the threat be conveyed to the victim because the
defendant made the statement to the victim‟s friend. (Ibid.)
       In Felix, the defendant made threatening statements about shooting his ex-
girlfriend to a psychotherapist while in jail. Given the confidential setting in which the
statements were made while discussing highly personal thoughts about homicide, suicide,
and his emotions about his ex-girlfriend, the court found the requisite intent to convey
lacking. (Felix, supra, 92 Cal.App.4th at pp. 913-914)



                                             14
       On the other hand, our colleagues in the Second Appellate District, albeit in a
somewhat different context, determined that for purposes of a credible threat, it is
irrelevant that a victim learns of a stalker‟s threats through a third person rather than
directly from the stalker. (Norman, supra, 75 Cal.App.4th at p. 1241, fn. 4.) There, the
court considered whether a victim‟s fear must be contemporaneous with the stalker‟s
threats and harassment in order to violate section 646.9. (Norman, at pp. 1235-1236.)
Norman, the defendant, was convicted of stalking Steven Spielberg. (Id. at p. 1235.)
Spielberg was out of the country when Norman, among other things, tried to scale the
wall of Spielberg‟s residence and admitted he wanted to rape Spielberg. (Id. at pp. 1236-
1238.) Spielberg‟s lawyer ultimately told Spielberg of Norman‟s bizarre antics and
threatening conduct, which caused Spielberg to fear for the safety of himself and his
family. (Id. at p. 1237.)
       In rejecting Norman‟s claim that insufficient evidence of a credible threat
supported his conviction the court stated, “The fact that Spielberg learned about
Norman‟s threatening conduct from Ramer [his attorney] is irrelevant--it was Norman
whose course of conduct . . . was threatening and which created a foreseeable need to
inform Spielberg of the danger.” (Norman, supra, 75 Cal.App.4th at p. 1241, fn. 4.)
Thus, whether a defendant intends that words uttered to third parties be relayed to the
victim arguably appears irrelevant for purposes of establishing a credible threat under
section 646.9. As Norman intimates, it is a defendant‟s entire course of conduct,
including conduct and statements to third parties that foreseeably a victim may be told,
that is relevant for establishing a credible threat and not necessarily any particular intent
that the comments be conveyed to the victim. (Norman, at p. 1241, fn. 4.)
       Norman’s conclusion is supported by other opinions that provide, “ „in
determining whether a threat occurred [under section 646.9], the entire factual context,
including the surrounding events and the reaction of the listeners, must be considered.‟ ”
(Uecker, supra, 172 Cal.App.4th at p. 598, fn. 10.) As Uecker points out, a court “cannot

                                              15
ignore what a victim knows about a defendant, regardless of how it is learned, in
assessing whether a defendant‟s behavior rises to the level of a credible threat.” (Ibid.,
italics added.)
       In this case, Officer Fox told Kathryn C. what defendant had said. Kathryn C.‟s
knowledge of these statements, once gained, cannot be ignored when assessing whether
defendant‟s course of conduct rose to the level of a credible threat. (Uecker, supra, 172
Cal.App.4th at p. 598, fn. 10.) The fact that Officer Fox conveyed the statements,
whether or not defendant intended him to relay the threatening messages, appears
irrelevant. (Norman, supra, 75 Cal.App.4th at p. 1241, fn. 4.)
       But even if we assume, without deciding, that defendant is correct that the trial
court erred by failing to instruct the jury he had to intend for Officer Fox to convey his
threatening statements to Kathryn C., we are satisfied the error was harmless beyond a
reasonable doubt. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.)
       The record shows defendant told Officer Fox he intended to immediately return to
Kathryn C.‟s house as soon as he was released, the restraining order “didn‟t mean shit,”
and that nothing could be done if he shot her upon his release. These comments were
made to the peace officer who had just arrested defendant for violating a no-contact order
after he threatened Kathryn C.‟s boyfriend in her presence and outside her home. This
evidence is uncontradicted.
       Defendant did not make the threatening statements in a confidential setting or
during a therapy session. Thus, unlike in Felix, defendant had no expectation the
statements would remain confidential. Instead, like in Norman, it was reasonably
foreseeable under these circumstances that defendant‟s conduct and comments would
prompt the arresting officer to inform Kathryn C. about the threatening statements.
Assuming the jury had been instructed that defendant had to intend for Officer Fox to
relay his threats to Kathryn C., we are confident beyond a reasonable doubt the jury
would have inferred such an intent based on the uncontradicted evidence in the record.

                                             16
(In re David L., supra, 234 Cal.App.3d at p. 1659 [intent that third party act as
intermediary to convey threat to victim was implied]; People v. Lopez (1986) 188
Cal.App.3d 592, 602 [uncontradicted evidence defendant knew, or exercising reasonable
care should have known, police officers were attempting to arrest him].)
       And even had the jury found defendant did not intend for Officer Fox to convey
his shooting comments to Kathryn C., defendant still fails to carry his burden to show
prejudice in light of the prosecution‟s credible threat theory, which as discussed above,
was that a credible threat against Kathryn C. could be implied from defendant‟s entire
course of conduct rather than merely his statements to Officer Fox. (Uecker, supra, 172
Cal.App.4th at p. 597.) The court is satisfied beyond a reasonable doubt the jury would
have implied such a credible threat based on defendant‟s violent history and his pattern of
conduct. The alleged instructional error, assuming it occurred, did not contribute to the
guilty verdict.

       E. Constitutionally Protected Speech

       Defendant next contends the stalking instruction was erroneous because it did not
require the jury to determine whether his statements to Officer Fox constituted free
speech under the First Amendment, and that because the statements so qualified, they
could not form the basis of a credible threat under section 646.9.
       Our resolution of the latter issue necessarily resolves the former. We therefore
consider first whether defendant‟s statements to Officer Fox constituted constitutionally
protected free speech. We find they do not.
       Section 646.9 provides that “constitutionally protected activity” is not included in
the statutory definitions of either “course of conduct” or “credible threat.” (See § 646.9,
subds. (f) & (g).) Thus, if defendant‟s statements to Officer Fox qualify as
“constitutionally protected activity,” they cannot form the basis of the stalking charge.




                                              17
       The First Amendment protects “expression that engages in some fashion in public
dialogue, that is, „ “communication in which the participants seek to persuade, or are
persuaded; communication which is about changing or maintaining beliefs, or taking or
refusing to take action on the basis of one‟s beliefs . . . .” ‟ ” (In re M.S. (1995) 10
Cal.4th 698, 710.) “As speech strays further from the values of persuasion, dialogue and
free exchange of ideas, and moves toward willful threats to perform illegal acts, the state
has greater latitude to regulate expression.” (Ibid.)
       A threat constitutes an “ „ “expression of an intent to inflict evil, injury, or damage
on another.” ‟ ” (In re M.S., supra, 10 Cal.4th at p. 710.) “When a reasonable person
would foresee that the context and import of the words will cause the listener to believe
he or she will be subjected to physical violence, the threat falls outside First Amendment
protection.” (Ibid.) Such comments are “punishable because of the state‟s interest in
protecting individuals from the fear of violence, the disruption fear engenders and the
possibility the threatened violence will occur.” (Id. at p. 714.)
       In this case, defendant told Officer Fox the restraining orders “didn‟t mean shit,
and he was going to be out [of jail] in 20 minutes . . . and he was going to go back to
[Kathryn C.‟s house] immediately.” He also told the officer that he could not keep him
away from Kathryn C. and that when he got out of jail, if he shot Kathryn C., there was
nothing Officer Fox could do about it. Defendant angrily made these statements after
having just been arrested for contacting Kathryn C. at her home in violation of the no-
contact order and threatening her boyfriend in her presence. Given this context and based
on the nature of the comments, it was reasonably foreseeable the officer would believe
the victim might be subjected to physical violence at defendant‟s hand.
       That is precisely what occurred when Officer Fox heard defendant‟s statements.
When asked whether he was concerned or worried about the statements, Officer Fox
testified, “I took it very seriously that if he‟s going to make--based on his actions up to



                                              18
this point and based on if he‟s going to make that claim to a police officer, not only once
but twice, I felt it was my job to do the best I can to protect her.”
       Defendant‟s reliance on Watts v. United States (1969) 394 U.S. 705, 708 (Watts),
for the proposition that defendant had a First Amendment right to make “ „ “vehement,
caustic, and sometimes unpleasantly sharp attacks on government and public officials” ‟ ”
is misplaced. Watts involved a political rally at the Washington Monument in
Washington D.C. during the time of the Vietnam War. Watts, a young man attending the
rally, informed a group of attendees that he had just received his draft notice and declared
he would not report for duty. He then stated, “ „[i]f they ever make me carry a rifle the
first man I want to get in my sights is L.B.J.‟ ” (Watts, at p. 706.) Both Watts and those
that heard the statement laughed. (Id. at p. 707.)
       In reversing Watts‟s conviction for threatening the president‟s life, the United
States Supreme Court considered the context and expressly conditional nature of the
statement, as well as the listener‟s reaction. (Watts, supra, 394 U.S. at p. 708.)   The
high court concluded the statement, rather than a threat, was merely a “ „very crude
offensive method of stating a political opposition to the President.‟ ” (Id. at p. 708.)
       We find Watts inapt to the facts of the present case. At the time defendant made
the comments about shooting Kathryn C., he was not taking part in a political rally
against an unpopular war or the President of the United States. Instead, he had just been
arrested for violating a no-contact order and had told the arresting officer that he intended
immediately to return to Kathryn C.‟s house as soon as he was released from jail. Neither
he nor Officer Fox were laughing after defendant twice said that nothing could be done if
he shot Kathryn C. upon his release. Although the “political hyperbole” of the sort at
issue in Watts remains within the “marketplace of ideas” protected by the First
Amendment, threats to an arresting officer about physically harming a former girlfriend
by shooting her do not constitute such political hyperbole. (In re M.S., supra, 10 Cal.4th
at p. 711.) Defendant‟s off-handed comment that the justice system was “fucked up”

                                              19
does not cloak the threat to shoot Kathryn C. in First Amendment protection. As Officer
Fox‟s testimony reveals, the context in which the threatening statement was made
conveyed a gravity of purpose so as to constitute speech beyond the pale of the First
Amendment. (Id. at p. 714 [“Violence and threats of violence, by contrast, fall outside
the protection of the First Amendment because they coerce by unlawful conduct, rather
than persuade by expression, and thus play no part in the „marketplace of ideas‟ ”].)
       Having concluded defendant was not engaged in constitutionally protected First
Amendment speech when making the statements to Officer Fox, we next consider
whether the trial court erred by not instructing the jury that defendant was not guilty of
stalking if his conduct was a constitutionally protected activity.
       Defendant concedes a specific instruction regarding constitutionally protected
speech under CALCRIM No. 1301 is optional. Because we determined defendant was
not engaged in such activity, we reject defendant‟s argument that the court erred in
omitting any reference to constitutionally protected activity when instructing the jury on
the stalking charge.
                                              II
                                     Cumulative Error
       Based on the premise that multiple instructional errors occurred, defendant
contends the cumulative impact of the errors mandates reversal of the stalking conviction
even if considered individually none of the errors does. Because we find the record
overwhelmingly establishes a credible threat based on defendant‟s entire course of
conduct even if defendant‟s statements to David F. and Officer Fox are disregarded,
defendant‟s cumulative impact argument fails for want of a valid premise. (People v.
Ibarra (2007) 156 Cal.App.4th 1174, 1198-1199.)




                                             20
                                              III
                                          Section 654
       Defendant contends the six month concurrent sentences on counts 2 through 4
should have been stayed under section 654 because the acts used to prove the
misdemeanor restraining order violations were the same acts used to prove the stalking
charge in count 1. Section 654 prohibits punishing the same act under more than one
penal provision. (§ 654, subd. (a) [“An act or omission that is punishable in different
ways by different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision”].)
       The People concede the misdemeanor sentences should have been stayed. We
accept the People‟s concession.
                                              IV
                                 Additional Conduct Credits
       Defendant finally contends he is entitled to additional conduct credits under the
most recent amendments to section 4019, and that denying him such credits violates his
right to equal protection. We disagree.
       Section 4019 specifies the rate at which conduct credits can be earned by those in
local custody before sentencing. At the time of defendant‟s arrest on May 20, 2011,
former section 4019 entitled defendant to two days of conduct credit for every four days
spent in local custody. The statute provided, “It is the intent of the Legislature that if all
days are earned under this section, a term of six days will be deemed to have been served
for every four days spent in actual custody.” (Stats. 2010, ch. 426, § 2, eff. Sept. 28,
2010.) Based on defendant‟s 175 days of actual presentence custody credit, the court
awarded defendant 87 days of conduct credit under the former section 4019. Defendant
concedes his conduct credits were calculated accurately under the prior statute if it
applies.

                                              21
       In 2011, section 4019 was amended to allow prisoners good conduct credits on a
two-for-two basis. The statute presently states, “It is the intent of the Legislature that if
all days are earned under this section, a term of four days will be deemed to have been
served for every two days spent in actual custody.” (§ 4019, subd. (f).) It is this version
of the statute that defendant contends the court should apply to re-calculate his conduct
credits. The plain language of the statute as well as the Supreme Court‟s recent decision
in People v. Brown (2012) 54 Cal.4th 314 (Brown), compel us to reject defendant‟s
contention.
       The Legislature expressly stated the amendment was to be applied prospectively
for crimes committed on or after October 1, 2011. (§ 4019, subd. (h) [“The changes to
this section enacted by the act that added this subdivision shall apply prospectively and
shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or
road camp for a crime committed on or after October 1, 2011. Any days earned by a
prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior
law”].) Under the statute‟s plain language, then, the Legislature did not intend the
October 2011 amendments to section 4019 to apply retroactively. (See People v. Ellis
(2012) 207 Cal.App.4th 1546, 1550 [holding same]; Franco, supra, 180 Cal.App.4th at
p. 720 [courts role in construing statute is to ascertain Legislature‟s intent so as to
effectuate statute‟s purpose].)
       Contrary to defendant‟s argument, applying amended section 4019 prospectively
does not violate equal protection. A nearly identical issue was considered and rejected by
the Supreme Court in Brown, supra, 54 Cal.4th 314. There, the Supreme Court
addressed whether a former amendment to section 4019 that became operative on January
25, 2010, during a state fiscal emergency, should be given retroactive effect so as to
permit prisoners who served time in local custody before that date to earn conduct credits
at the increased rate provided for by that amendment. (Brown, supra, 54 Cal.4th 314.)
After concluding retroactive application was not required even though the statute did not

                                              22
expressly contain a prospective application clause (id. at pp. 319-320), the court also
determined equal protection did not require treating prisoners serving time before and
after former section 4019 took effect the same. (Id. at p. 329.)
       In rejecting the equal protection challenge, the high court emphasized that those
serving time before and after the effective date of the amended statute were not similarly
situated for equal protection purposes. (Brown, supra, 54 Cal.4th at p. 329.) This
conclusion logically flowed from the important correctional purposes of a statute like
section 4019, which authorizes incentives for good behavior while incarcerated. The
statute‟s purpose is not served by rewarding prisoners who served time before the
incentives took effect since they “could not have modified their behavior in response.”
(Brown, at pp. 328-329.) Brown’s conclusions and holding regarding the January 25,
2010, amendment apply equally to the October 1, 2011, amendment. (See People v.
Ellis, supra, 207 Cal.App.4th at p. 1552.) We therefore reject defendant‟s claim he is
entitled to conduct credits at the enhanced rate provided by current section 4019.

                                       DISPOSITION
       The sentences on the misdemeanor charges are stayed pursuant to section 654.
The trial court is directed to prepare an amended abstract of judgment to reflect a stay of
each six-month concurrent sentence imposed for counts 2 through 4, and to forward a
copy of the corrected abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.

                                                        HULL                  , J.

We concur:


      RAYE                  , P. J.


      MURRAY                , J.


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