People v. Sorden

65 Cal.App.5th 582

280 Cal.Rptr.3d 116

The PEOPLE, Plaintiff and Respondent,

v.Mark Aaron SORDEN, Defendant and Appellant.

D076458

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

Filed May 18, 2021

As Modified on Denial of Rehearing June 15, 2021

Matthew R. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Acosta and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

IRION, J.

Mark Aaron Sorden (Appellant) appeals from a judgment following his conviction for contempt of court for violating a Criminal Protective Order—Domestic Violence (CPO) issued in a prior action. ( Pen. Code, § 166, subd. (c)(1)(B) ( § 166(c)(1)(B) ); further undesignated statutory references are to this code.)

As we explain, Appellant did not meet his burden of establishing reversible error. In reaching this decision, to the extent Appellant has not forfeited appellate review, we will conclude: (A) Appellant may not collaterally attack the CPO in this action; (B) the trial court properly instructed the jury as to the meaning of "disturbing the peace" for purposes of the contempt conviction ( § 166(c)(1)(B) ); (C) the trial court did not deny Appellant due process of law when it allowed the jury to consider evidence of cellphone tracking that was not presented at the preliminary hearing; (D) the trial court properly instructed the jury as to the meaning of "act of violence" for purposes of the conduct enhancement ( § 166, subd. (c)(1) ); (E) the trial court was not required to give a unanimity instruction for the conduct enhancement ( § 166, subd. (c)(4) ); and (F) without individual instances of trial court error, there can be no prejudice from "cumulative error." Finally, we will further conclude that, as Appellant and the Attorney General agree, because Senate Bill No. 136 (2019-2020 Reg. Sess.; Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020) (Senate Bill No. 136) applies retroactively, the two one-year sentence enhancements based on prior prison terms should be stricken from the judgment.

Accordingly, we will modify the judgment to strike the two one-year sentence enhancements and otherwise affirm the judgment.

I. PROCEDURAL BACKGROUND

In February 2019, the district attorney filed a two-count information, charging Appellant with false imprisonment by violence, menace, fraud, or deceit (count 1; §§ 236, 237, subd. (a)) and the violation of a protective order issued in connection with a prior domestic violence conviction (previously identified as the CPO) (count 2; § 166, subd. (c)(1) ). The second count also alleged that the violation occurred within seven years of a prior conviction of section 166, subdivision (c)(1), and involved an act of violence or a credible threat of violence. ( § 166, subd. (c)(4).) In addition, the information alleged that Appellant had served two prior prison terms. (Former § 667.5, subd. (b); Stats. 2018, ch. 423, § 65.)

At trial, the jury found Appellant guilty of count 2 (violation of the CPO) and found true the allegation that the offense involved an act of violence or a credible threat of violence. The jury was unable to reach a verdict as to count 1 (false imprisonment), and the court declared a mistrial and dismissed this count in response to the People's motion. Appellant then changed his plea to the allegations of the two prison priors and admitted their truth.

In August 2019, the trial court denied Appellant's requests both to reduce the conviction to a misdemeanor and to sentence Appellant to a term of probation. The court sentenced Appellant to a term of five years in prison, as follows: the upper term of three years on count 2 and consecutive one-year terms for each of the two prison priors.¹

Appellant timely appealed.

II. FACTUAL BACKGROUND

In May 2017, Appellant pled guilty to one count of violating a section 136.2 protective order ( § 166, subd. (c)(1) ), admitting that he "violated a court order [he] knew was in place to prevent domestic violence." As part of a plea agreement, in part Appellant was required to comply with the terms of a criminal protective order with a "no negative contact" provision.

On the same date, the court entered a criminal protective order (previously identified as the CPO). Gloria G. is the "protected person"; and, as relevant to the present action, the CPO ordered that Appellant "must not harass, strike, threaten, assault (sexually or otherwise), follow, stalk, molest, destroy or damage personal or real property, disturb the peace, keep under surveillance, or block movements of" Gloria.

The incident at issue occurred on September 24, 2018. At the time, Gloria and Appellant had been in a dating relationship for four years, living in a converted tool shed—which Appellant compared to "a cottage on the side of the house"—on East Alvarado Street in Fallbrook. Across the street from them, Frank A. lived in a studio apartment—which Frank described as a "bungalow, pool house" or "little guest house"—at the top of the driveway; his parents lived in the main house on the property.

Over a month earlier, in August 2018, Gloria "needed some space" from Appellant and left the East Alvarado cottage, moving in temporarily with people in Vista whom she referred to as Appellant's niece and nephew.² Gloria did not tell Appellant where she was and did not answer any of Appellant's telephone calls; and she asked the nephew not to tell Appellant where she was. During this time period, Appellant came by Frank's residence once a week looking for Gloria.

At or around 10:00 p.m. on the night of September 24, 2018, Gloria arrived at Frank's apartment, explaining to him that she had left the month before because she needed some space from Appellant and still was hiding from him.

An hour or two later—i.e., shortly before midnight, as Gloria was waiting for a ride back to the apartment in Vista—Appellant arrived at Frank's studio and let himself in. Appellant and Gloria seemed surprised to see the other. Appellant asked Gloria to step outside so that they could talk. Frank and Appellant exchanged words—with Frank telling Appellant to stay outside, and Appellant telling Frank to mind his own business. During this exchange, Frank told Appellant that Gloria did not want to speak with him, that Gloria was leaving Appellant, and that Appellant should just "get over it." Although the evidence is not clear as to who first grabbed Gloria's arm, the evidence is consistent that, Appellant took one of her arms in an attempt to lead her outside, and Frank took her other arm in an attempt to keep her inside (as he thought she wanted). During this scuffle just inside the door of the studio apartment, Appellant punched Frank in the eye, and Frank returned the punch.

As Gloria was attempting to extricate herself from the middle of the men's physical altercation, her foot got stuck under the front door (which opened into the apartment), and she fell to the floor. Appellant helped Gloria get up and carried her outside. Concerned because the police had been called, Appellant lifted Gloria, placed her over his shoulder, and hauled her down Frank's driveway to the street. At the end of the driveway, as Gloria screamed to be put down, Appellant placed Gloria on the ground. According to Gloria, she screamed because she was in extreme pain due to cancer.

By this time, a small crowd of neighbors had congregated near the bottom of Frank's driveway. Appellant drove away in his car, and a friend of Gloria's waited with her for the police to arrive.

III. DISCUSSION

In the present case, the jury found that Appellant violated section 166(c)(1)(B), which provides in relevant part:

"(c)(1) ... [A] willful and knowing violation of a protective order or stay-away court order described as follows shall constitute contempt of court, a misdemeanor, punishable by imprisonment in a county jail for not more than one year, by a fine of not more than one thousand dollars ($1,000), or by both that imprisonment and fine: [¶] ... [¶] (B) An order issued pursuant to paragraph (2) of subdivision (a) of Section 1203.097."

In this regard, section 1203.097, subdivision (a)(2) (section 1203.097(a)(2)) provides in relevant part:

"(a) If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include all of the following: [¶] ... [¶] (2) A criminal court protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment[.]"

For purposes of section 1203.097(a)(2), Gloria qualifies as "a person defined in Section 6211 of the Family Code."³

In the present action, for purposes of the section 166(c)(1)(B) conviction, the CPO is the section 1203.097(a)(2) criminal protective order that the jury found Appellant to have violated.

"It is the policy of our state that contempt citations not be taken lightly, especially criminal contempt[ ]. An alleged contemnor in this state is entitled to the full panoply of substantive and due process rights ...." ( People v. Kalnoki (1992) 7 Cal.App.4th Supp. 8, 11, 9 Cal.Rptr.2d 827 [appeal from misdemeanor contempt under former § 166, subd. (2) ].) "In the review of a contempt proceeding ‘the evidence, the findings, and the judgment are all to be strictly construed in favor of the accused’ "; and, contrary to general appellate procedure, " ‘no intendments or presumptions can be indulged in aid of their sufficiency.’ " ( Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1256, 265 Cal.Rptr. 144, 783 P.2d 731 [review of criminal contempt judgment based on violation of injunction issued under Red Light Abatement Law].)

As we explain, here Appellant has not met his burden of establishing reversible error on appeal.

A. Appellant May Not Collaterally Attack the CPO in this Action

Appellan...