Filed 1/8/15 P. v. Hupp CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, D064053 Plaintiff and Respondent, v. (Super. Ct. No. SCD238651) PAUL HUPP, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Margaret A. Powers, Judge. (Retired Judge of the San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.

Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood, Marilyn George, and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

Paul Hupp appeals from a judgment convicting him of stalking, stalking in violation of a court order, and other offenses based on his conduct of sending numerous threatening-type letters to a pro tem administrative law judge who had issued a decision unfavorable to him. Defendant argues the judgment must be reversed because his counsel provided ineffective representation by failing to move to exclude evidence of a contempt conviction incurred by defendant when he violated a restraining order obtained by the victim. Defendant also contends he was deprived of a fair trial because the prosecutor was allowed to present to the jury collateral, irrelevant, and prejudicial matters, including during a lengthy cross-examination of defendant and in closing arguments. We reject these contentions.

Finally, defendant argues he cannot properly be convicted of both simple stalking (count 1) and stalking in violation of a court order (count 2). Under the circumstances of this case we agree. We modify the judgment to vacate the count 1 simple stalking conviction.

FACTUAL AND PROCEDURAL BACKGROUND Letters Sent by Defendant in 2000 and 2006 Concerning Freedman's 1998 Administrative Decision In June 1998, victim Jeffrey Freedman, sitting as a pro tem administrative law judge (ALJ), presided over an administrative hearing to adjudicate an appeal filed by defendant to challenge a decision by the California Commission on Teacher Credentialing (Commission) denying defendant's application to obtain an emergency permit to be a substitute teacher. Freedman submitted a written proposed decision unfavorable to defendant, which was adopted by the Commission. Defendant filed a petition for writ of mandate in superior court, and in September 1999 the trial judge ruled in defendant's favor, finding that the Commission's findings did not support that defendant was unfit to teach and ordering the Commission to grant his application for a teaching permit.1 Notwithstanding his ultimate success in the mandamus proceedings, defendant was extremely upset by Freedman's 1998 decision. In February 2000 and June 2006, defendant sent letters to Freedman at his home address expressing his sentiments in a derogatory and expletive-laden style. The February 2000 correspondence was in an envelope addressed to "Jeffery 'Dickhead' Freedman"; it included a handwritten note stating "Pull your head out of your ass!"; and it enclosed a copy of the 1999 mandamus order overturning the Commission's denial of defendant's teaching permit application.

The June 2006 correspondence consisted of a lengthy typewritten letter which was addressed to "Bozo Freedman" and which contained numerous attacks on the 1998 decision and Freedman himself, stating such things as the decision was "one of the worst administrative law decisions in California history"; it was either a "set up" or Freedman was a "stupid motherfucker"; Freedman was a "cock sucking liar" and "cock sucking piece of shit"; Freedman misrepresented and made up evidence; based on the "lies and damage" Freedman had caused it was a miracle that "nothing has happened" to him; Freedman "better learn to treat people in a fair and decent manner—do you understand me bitch?"; and Freedman had "a beautiful home." Defendant included a copy of the 1998 administrative decision with handwritten comments referring to portions of the opinion and containing numerous additional derogatory statements and obscenities.2 Freedman testified that about four months before he received the June 2006 correspondence, he began receiving obscene phone calls at home from a caller who said Freedman's name and then used "a stream of obscenities" that matched the obscenities used in the June 2006 letter, stating for example, " 'Hey motherfucking cocksucker. Hey, Jeff, you are a fucking cocksucker." After receiving the June 2006 letter, Freedman applied for a restraining order prohibiting defendant from contacting him. In his written opposition to the restraining

Anonymous Letters Sent to Freedman in 2009 and 2010, and 2010 Restraining Order Against Defendant Shortly after the expiration of the three-year restraining order issued in 2006, Freedman again started receiving letters, but this time they were anonymous. These anonymous letters form the basis for the stalking and other charges brought in the criminal proceeding at issue in this appeal.

The first anonymous letter, sent in September 2009 to both Freedman's home and office, consisted of a short typed note stating, "Hey you little cock sucking mother fucker-have you lied under oath recently you little fucking bitch? . . . [¶] Why don't you do the world a favor and get cancer and DIE. [¶] Because the world will be a much better place without a perjuring piece of shit like you in it." Freedman testified he was certain the letter was from defendant, explaining the language was similar to the 2006 letter from defendant; Freedman had testified at the hearing on his 2006 restraining order

Anonymous Letters Sent in 2011, Contempt Conviction, and Other Actions by Defendant After issuance of the 2010 restraining order, additional anonymous typed letters were sent to Freedman's home and office in January and February 2011. The January letter stated: "Your perjuring days are over you cock sucking little bitch, remember that because there is not a rock on the face of this earth you are going to be able to hide under[.]" The February letter stated: "Your perjuring days are over motherfucker. [¶] Remember that you cock sucking piece of shit [Freedman's home address]." After receiving the January and February 2011 letters, on July 12, 2011, Freedman filed an order to show cause (OSC) to hold defendant in contempt for violating the 2010 restraining order. Defendant appeared at an ex parte hearing on July 20, and the matter was set for a full hearing. About one week after the ex parte hearing, on July 28, 2011, another anonymous typed letter was sent to Freedman's home. The letter stated: "[Freedman's home address] you perjuring motherfucker [¶] your perjuring days are over cocksucker." While the hearing on the contempt petition was pending, in October 2011 defendant filed a federal lawsuit against Freedman in which he complained about the 1998 administrative proceeding, stating that Freedman framed him, improperly failed to disclose that he was a pro tem ALJ, made false and fabricated statements in his decision, and defrauded defendant out of "[l]iterally millions of dollars." The contempt petition was adjudicated in November 2011, with defendant in attendance. The court found defendant in contempt, and ordered him to serve 25 days in custody, with a report date of January 3, 2012. On December 19, 2011, defendant's federal lawsuit against Freedman was dismissed with prejudice.

On December 27, 2011 (one week before defendant's date to report for custody), another anonymous typed letter was sent to Freedman's home, stating: "Your perjuring days are over you cocksucking motherfucker we'll see how much perjury you do with your brains splattered all over the wall the end will come at a time and place of my choosing you little fucking bitch[.]" Freedman contacted the police, and the police recommended that he and his wife leave town.

On January 13, 2012, the district attorney's office filed the stalking and other charges at issue in the case before us. Freedman received no more threatening letters after the December 2011 letter. Freedman testified that he was certain all the anonymous letters were sent by defendant, explaining that defendant was the only person who had made accusations that Freedman had committed perjury, ruined his life, and conspired to frame him.

Defense Defendant did not dispute that he sent the letters to Freedman in 2000 and 2006 which referenced the 1998 administrative hearing, but claimed he did not send the anonymous letters that were sent starting in 2009.

Testifying on his own behalf, defendant stated that while his substitute teaching permit application was pending he had obtained teaching jobs and was doing well; the Commission's denial of his permit caused him to lose these jobs; and even after the superior court overturned the Commission's denial he was unable to get rehired in the teaching field because too much time had passed, he would have had to return to school to retake credentialing classes, and he lacked the funds to do this. Defendant maintained that because of the Commission's denial of his teaching permit, his career and future "had basically been destroyed." After losing his teaching career, he obtained a law degree from a school in another state so he could learn to defend himself; the California State Bar initially granted him the required background clearance and he took the California bar examination several times; but in 2005 or 2006 when he did not pass the California bar examination and had to renew his clearance application, the clearance was denied.

Concerning his communications to Freedman, defendant explained that after the superior court judge overturned the Commission's denial of his teaching permit, he sent the 2000 letter because he wanted Freedman to know "what an idiot he was." He sent the 2006 letter because during this time period he re-read Freedman's administrative decision to get information for his bankruptcy case that he was filing, and he noticed how "bad" the administrative decision was now that he had a legal education. He acknowledged he was "very angry" and writing the letter made him feel less angry, but denied that he intended the letter to be a threat.

Defendant stated that during the time period of the anonymous letters, he was occupied with filing numerous lawsuits in which he represented himself about a variety of matters, and he filed these lawsuits to stand up for himself and others who could not defend their rights. He testified that he viewed the various judges who ruled against him as "lying," committing "perjury," and "railroad[ing] the poor and innocent," and he used derogatory language in pleadings and documents he filed concerning these judges because he was "blowing off steam" and the judges oppressed and "steamroll[ed] little people all the time" and he wanted them to know how he felt.5 To support that he did not send the anonymous letters received by Freedman, he noted that he identified himself in these materials concerning the various judges. He stated that when he was upset with Freedman he sued him, and he had no reason to send Freedman anonymous letters and he had no idea who sent them.

Jury Verdict and Sentence Defendant was charged with simple stalking between September 30, 2009 and December 29, 2011 (count 1, Pen. Code, § 646.9, subd. (a))6; stalking in violation of a court order between October 29, 2010 and December 29, 2011 (count 2, § 646.9, subd. (a)); making a criminal threat between December 27 and 29, 2011 (§ 422); and

At sentencing, the court selected a three-year term for count 2 stalking in violation of a court order and a concurrent term for count 1 stalking, and stayed the terms for counts 3 and 4. The court suspended execution of the sentence and granted defendant probation conditioned on a one-year jail sentence.

DISCUSSION I. Claim of Ineffective Assistance Based on Defense Counsel's Failure To Move To Exclude Defendant's Contempt Conviction Defendant argues his counsel provided ineffective representation because she did not move to exclude the evidence that he was convicted of contempt for sending letters to Freedman in violation of the November 2010 restraining order. He asserts the contempt conviction was excludable on the basis that it was secured in violation of his Brady7 disclosure rights. In support, he asserts that prior to the contempt hearing the prosecution had conducted forensic testing on the January and February 2011 letters used to establish the contempt violation; the test results showed two fingerprints on the envelopes that did not belong to defendant and the absence of usable DNA matter; and the prosecutor failed to disclose this exculpatory information to defendant in the contempt proceedings.8

Defendant has not shown there is a reasonable probability the trial court would have excluded the contempt conviction if his counsel had requested this relief based on an alleged Brady violation during the contempt proceedings. A Brady violation occurs when the prosecution fails to disclose evidence that is favorable to the accused and material on the issue of guilt or innocence. (People v. Lucas (2014) 60 Cal.4th 153, 273- 274.) In this context, evidence is material if its nondisclosure resulted in prejudice; i.e., if there is a reasonable probability that had the evidence been disclosed, the result of the proceeding would have been different. (Id. at p. 274; People v. Alvarez (2014) 229 Cal.App.4th 761, 771.)

The record shows that defendant's claim there was a Brady violation during the contempt proceedings was presented in support of his motion to dismiss the stalking case based on a variety of claims of prosecutorial error or misconduct. After a lengthy office in February 2011. Other than excluding defendant, no other identification was made for the fingerprints. As to DNA, the testing showed an insufficient amount of DNA to test on the January envelopes, and no DNA on the February envelopes. discussion with the parties, the trial court denied the motion to dismiss. When making its ruling, the court explicitly stated that it had "considered the Brady issue as part of the prosecutorial misconduct" and it "found no evidence of any violation there." Based on this ruling, there is no basis to find the court would have reached a different conclusion concerning the existence of a Brady violation had defense counsel made a motion to exclude the contempt conviction instead of a motion to dismiss.

Likewise, the record does not show the court was required to find a Brady violation.

Assuming the forensic testing results were available to the prosecution at the time of the contempt proceeding and there was a prosecutorial duty of disclosure at this proceeding, defendant has not established the materiality prong of a Brady violation; i.e., that there is a reasonable probability that disclosure of the testing results would have resulted in defendant not being found in contempt.9 The test results were exculpatory in the sense that they revealed that there was no affirmative forensic evidence tying defendant to the letters. However, the presence of someone else's fingerprints on the envelopes did not exclude defendant as the author because numerous people likely touched the envelopes

Because the forensic testing results provided minimal information concerning the question of authorship, there is no reasonable probability that disclosure of the results would have caused the court not to find defendant in contempt at the contempt hearing; accordingly the Brady claim fails to satisfy the materiality requirement. And, absent a showing that a Brady violation actually occurred at the contempt proceeding, there is no reasonable probability the trial court at the current criminal trial would have excluded the contempt conviction on Brady grounds had defense counsel brought such a motion.

Also, the record supports that the contempt conviction was highly relevant because it supported the prosecution's theory that defendant had a motive to send the overtly- threatening anonymous December 2011 letter, which was mailed a few days before defendant was ordered to report for custody for the contempt. We note further that to ensure the jury would not improperly rely on the contempt finding to establish defendant's identity as the author of the anonymous letters for purposes of the stalking charges, the jury was given special instructions stating the evidence of other legal proceedings was relevant solely to the issue of motive or other limited purposes specified by the court; the prior contempt finding involved different law and evidence and should not be considered as evidence that defendant had committed the current charged offenses; and the jury should make its own independent determination of the facts presented in the current trial.

Given the showing that there was no Brady violation, as well as the high relevancy of the contempt conviction on the issue of motive and the provision of a limiting instruction to prevent improper use of the conviction, there is no reasonable likelihood a defense motion to exclude the conviction would have been successful. Accordingly, defendant's claim of ineffective assistance is unavailing.

II. Claims of Prosecutorial Misconduct and Erroneous Court Rulings Defendant argues he was deprived of a fair trial because during cross-examination of defendant and closing arguments, the prosecutor improperly attempted to disparage his character to bias the jury against him. He contends the prosecutor engaged in excessive cross-examination on collateral, irrelevant, and prejudicial matters and sought to depict him as a child molester and "parasite" on society. Also, he contends the trial court abused its discretion and failed to ensure a fair trial because it overruled many of his counsel's objections and allowed the prosecutor to continue to present collateral and prejudicial information to the jury.

We have reviewed the record, including defendant's testimony on direct and cross- examination and the prosecutor's closing arguments, and find no prosecutorial misconduct or abuse of discretion by the trial court. When questioned on direct examination, defense counsel elicited a substantial amount of testimony from defendant about a wide variety of matters to support the theory that defendant had no reason to send anonymous letters because when he was angry at a judge he openly filed derogatory pleadings without trying to conceal his identity. This testimony included defendant's views about the various legal matters he was involved in, including the administrative proceeding before Freedman, his bankruptcy, lawsuits he filed concerning his student loans, a lawsuit he filed against the state bar and its employees concerning the denial of his background clearance, and complaints and letters he sent to California's Commission on Judicial Performance regarding the judge who convicted him of contempt.

For example, defendant testified about his 1982 conviction for contributing to the delinquency of a minor that gave rise to the Commission's denial of his teaching permit application (see fn. 1, ante). Defendant stated that he met some girls at an "over 21" bar and then went to the car with the girls to drink beer; when he entered his plea he did not have a lawyer and was never offered one; the judge told him if he went to trial and lost he would receive three years in prison; the judge offered to give him a fine and that would " 'be the end of it' "; and at the time of his plea he was under the influence of pain killers due to a motorcycle injury. Further, he said he did not disclose this conviction on his teaching credential application because the application asked if he had ever been convicted of a crime in an Education Code section, and there was no way for him to discover what crimes were covered by the Education Code section without hiring a lawyer which he did not have the money to do.

Defendant testified that Freedman's administrative decision contained "millions of things that were completely unfounded" and the decision had "no legal standing at all"; he was very upset that Freedman referenced a dispute about cocaine use in his decision because there was no evidence of this at the hearing; Freedman's decision referenced information in a police report that Freedman had excluded from evidence; and defendant submitted documentation showing that his 1982 conviction had been expunged. Also, defendant first learned that Freedman was a pro tem judge when he was served with the restraining order in 2010; he sued Freedman for fraud based on this nondisclosure; and he lost his case against Freedman because of the doctrine of judicial immunity which allows judges to "cheat and defraud people . . . with impunity." Further, defendant testified that he filed for bankruptcy because he was unable to obtain employment and pay his student loans after the Commission denied him his teaching permit, and he pursued lawsuits about student loans because student loans could not be discharged in bankruptcy and this was a "gigantic scam." Regarding a complaint he filed in federal court, defendant opined the federal judge should not have dismissed the complaint with prejudice but should have done so without prejudice, and this judge committed "perjury in her order" and set forth a reason that was "completely bogus." Overall, defendant maintained that his lawsuits concerned legitimate claims and he did not pursue them to be a nuisance or to be threatening; rather, he was a voice for the "weak, the little guy" because he had a legal education and could at least try to fight back.

Following defendant's testimony on direct examination, the prosecutor engaged in a lengthy cross-examination of defendant, which—in addition to questions directly related to the letters sent to Freedman—included questions about such matters as whether defendant knew the age of the girls with whom he was drinking beer in 1982; whether the transcript of the 1998 administrative hearing supported his complaints about Freedman's decision; his claimed inability to obtain employment and to pay his student loans; the contents of the various lawsuits that he pursued and accusations he made against judges; and his understanding of legal concepts related to his claims of improper judicial conduct and decisionmaking. During the course of the questioning, defense counsel frequently objected that the questions were irrelevant or argumentative, and in several instances complained the prosecutor was engaging in improper impeachment on collateral matters and had "gone far beyond what's appropriate." The court overruled many of the objections, and during discussions outside the presence of the jury, the court stated that the cross-examination questions were related to defendant's direct examination testimony.

At various points the court did, however, state the prosecutor should "move on" and finish his cross-examination, and at one point curtailed the prosecutor's questioning under Evidence Code section 352.

To violate a defendant's constitutional rights, the prosecutor must engage in a pattern of conduct so egregious that it renders the trial fundamentally unfair, or the prosecutor's conduct must involve deceptive or reprehensible methods to attempt to persuade the jury. (People v. Hamilton (2009) 45 Cal.4th 863, 950.) A prosecutor is given wide latitude to vigorously argue the case as long as the argument is "a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom." (People v. Harrison (2005) 35 Cal.4th 208, 244.) Also, when a defendant chooses to take the stand, the defendant is subject to cross-examination in the same manner as any other witness, and the prosecutor has wide latitude to ask questions and may do so in a vigorous manner. (People v. Mayfield (1997) 14 Cal.4th 668, 755; People v. Arias (1996) 13 Cal.4th 92, 175; People v. Cooper (1991) 53 Cal.3d 771, 822.)

Although the prosecutor should not question a defendant about matters that are collateral to the issues (People v. Ortega (1969) 2 Cal.App.3d 884, 902), a defendant may properly be cross-examined upon any matter within the scope of direct examination (People v. Price (1991) 1 Cal.4th 324, 474; People v. Saddler (1979) 24 Cal.3d 671, 679). On appeal, we review the trial court's rulings with respect to cross-examination for abuse of discretion. (People v. Mayfield, supra, 14 Cal.4th at pp. 755-756.)

Contrary to defendant's contention, the record does not show that the prosecutor improperly impugned defendant's character or questioned him about collateral, irrelevant matters.10 Rather, the record supports that the cross-examination and closing arguments were within the scope of permissible, vigorous cross-examination and argument and related to matters elicited on direct examination. For example, defendant complains the prosecutor was permitted to insinuate that his 1982 offense involved an attempt to get the girls drunk so he could commit a sexual molestation crime.11 The trial court could

Also, defendant argues the prosecutor's questioning and closing arguments insinuated to the jury that defendant was "nefariously withholding evidence" because he did not submit into evidence the transcript of the 1998 administrative hearing. The trial court could reasonably view the questioning and arguments concerning the administrative hearing transcript as permissible responses to defendant's testimony that the record of the administrative hearing showed the falsity and impropriety of matters set forth in Freedman's administrative decision. (See People v. Jasso (2012) 211 Cal.App.4th 1354, 1370-1371 [although defendant has no duty to present evidence, prosecutor may properly comment on a defendant's failure to present logical evidence to support defense theory]; People v. Wilson (2005) 36 Cal.4th 309, 338.)

We note further that the record does not support defendant's claim that the prosecutor committed misconduct by continuing to refer to defendant's failure to produce the transcript even though the court sustained objections to the questioning. Although the court sustained defense objections to certain particular questions and sought to limit excessive questioning, the court ruled the prosecutor could generally pursue this avenue of questioning. Also, to the extent the prosecutor continued with a line of questioning [defense counsel] wants you to to . . . find that that affects his credibility negatively.

Really? Does she really? [¶] Which one of you thinks a 14-year-old is not a little girl for purposes of alcohol in a car with a guy? [¶] . . . [¶] . . . A 14-year-old in a bar with her 15-year-old friend. I'm sure they looked—they must have looked at least 17. Please.

They weren't out in that car for the conversation." notwithstanding the court's sustaining of a defense objection, this conduct was isolated and did not constitute egregious behavior creating an unfair trial or a reprehensible method to attempt to persuade the jury. (People v. Hamilton, supra, 45 Cal.4th at p. 950.)

Defendant further posits the prosecutor improperly cross-examined him, introduced into evidence, and made closing arguments about numerous collateral matters, including concerning the pleadings and other documents filed by defendant in other cases; the definitions of various legal concepts and defendant's misunderstanding of these concepts; and defendant's claimed inability to obtain jobs and pay his student loans.12 The trial court could reasonably find that these matters related to defendant's testimony on direct examination concerning the reasons he filed lawsuits and believed the judges' decisions were legally incorrect, and the financial and employment difficulties he claimed to have suffered because of the Commission's denial of his permit.

Although the prosecutor's examination of defendant was lengthy, it stayed within the bounds of permissible cross-examination on matters raised by defendant in direct examination. Likewise, the evidence introduced by the prosecutor, the prosecutor's closing argument, and the instructions were a reasonable response to the defense case.

Defendant's claim that he was deprived a fair trial due to prosecutorial misconduct or court error is unavailing.

III. Dismissal of Count 1 Stalking Offense Defendant argues the count 1 simple stalking conviction must be dismissed because it is a lesser included offense of the count 2 conviction for stalking in violation of a court order. The Attorney General does not dispute that count 1 is a lesser included offense of count 2, but contends two convictions are proper because the offenses concern different acts committed during different time periods. Under the circumstances of this case, we conclude only one stalking conviction is warranted.

A defendant may properly sustain multiple convictions for different offenses or different statements of the same offense based on a single criminal act or an indivisible course of conduct, unless one offense is necessarily included in the other. (People v. Gonzalez (2014) 60 Cal.4th 533, 536-537; § 954.) For purposes of the multiple conviction bar, an offense is necessarily included in another offense if all the elements of the lesser offense are included in the elements of the greater offense, so that the greater cannot be committed without also committing the lesser. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) Because by definition a greater offense cannot be committed without also committing a lesser included offense, the multiple conviction bar prevents the defendant from in effect being convicted twice of the lesser offense. (People v. Medina (2007) 41 Cal.4th 685, 702.)

However, in some circumstances a defendant may sustain multiple convictions based on the same statutory crime (or, logically, a lesser offense included within that crime) when the circumstances show a divisible course of conduct establishing multiple criminal violations. For example, multiple convictions of the same offense have been found proper for distinct acts each of which gave rise to a completed crime, even though the offenses were otherwise committed during a single incident or course of conduct. (See, e.g., People v. Johnson (2007) 150 Cal.App.4th 1467, 1473-1477 [defendant could properly be convicted of multiple counts of corporal injury to a cohabitant occurring during single incident because each infliction of injury completed the statutory crime]; accord People v. Healy (1993) 14 Cal.App.4th 1137, 1138-1140 [multiple convictions of corporal injury to cohabitant occurring over one-year time period].) In contrast, some offenses are by their nature viewed as contemplating a continuous course of conduct that should give rise to only one conviction of the same offense for the same course of conduct. (See, e.g., People v. Lewis (1978) 77 Cal.App.3d 455, 459-461 [only one conviction of pimping based on ongoing conduct with the same prostitute during a five- year period].) On the other hand, some types of crimes that are recognized as continuing offenses have nevertheless been deemed to warrant multiple convictions when there are distinct criminal acts that effectively create independent courses of conduct. (See, e.g., People v. Meeks (2004) 123 Cal.App.4th 695, 702-703 [multiple convictions proper based on distinct acts of failing to register upon change of address and failing to register on birthday; "a failure to register when one moves to a different residence is a continuing offense; a failure to register on the event of the defendant's birthday is a separate continuing offense"].)

The offense of stalking is defined in section 646.9, subdivisions (a) through (d), with each subdivision providing for different punishments depending on the attendant circumstances. The statute defines, and prescribes particular punishments, for simple stalking (§ 646.9, subd. (a)); stalking in violation of a court order (§ 646.9, subd. (b)); and stalking after having been convicted of specified felonies (§ 646.9, subd. (c)). The elements of stalking are repeatedly following or harassing another person, and making a credible threat with the intent to place that person in fear. (§ 646.9, subd. (a); People v. Muhammad (2007) 157 Cal.App.4th 484, 493, fn. 8.) Simple stalking is a lesser included offense of stalking in violation of a court order because the latter offense necessarily constitutes a commission of the former offense. (See Muhammad, supra, at p. 490, fn. 6.)

Further, the stalking statute has been construed as defining a single offense, albeit with different associated penalties under each subdivision. (Id. at pp. 490-492.) Also, stalking is viewed as a continuing offense because it requires repeated following or a course of harassing conduct. (§ 646.9, subds. (a), (e), (f) [stalking crime committed by "person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person"; " 'harasses' means engages in a knowing and willful course of conduct"; " 'course of conduct' means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose"]; People v. Chilelli (2014) 225 Cal.App.4th 581, 586.)

Given that the stalking statute defines a single, continuing offense that requires repetitive behavior, and that simple stalking is necessarily included within aggravated stalking, typically a defendant cannot sustain both simple stalking and aggravated stalking convictions absent some type of circumstance that separates the defendant's behavior into two severable courses of conduct. For example, in Muhammad, the court concluded the defendant could incur only one stalking conviction in a case involving allegations of simple stalking and aggravated stalking (i.e., stalking in violation of a court order and stalking with specified felony convictions). (People v. Muhammad, supra, 157 Cal.App.4th at p. 494.) The restraining order in Muhammad was issued in August 2003, and the information charged the defendant with one simple stalking count and three aggravated stalking counts between December 2003 and December 2004. (Id. at pp. 487, 489, fn. 3.) Thus, all the stalking counts in Muhammad were based on conduct that occurred during the same time period after issuance of the restraining order.

Here, the TRO was served on defendant on October 27, 2010, and the information charged defendant with (1) count 1 simple stalking between September 30, 2009 and December 29, 2011, and (2) count 2 stalking in violation of a court order between October 29, 2010 (when the first letter was sent after service of the TRO) and December 29, 2011. As charged in this case, both counts 1 and 2 involved the same post-TRO conduct occurring between October 2010 and December 2011. Thus, defendant was not charged in a manner that divided counts 1 and 2 into severable courses of conduct (i.e., pre-TRO acts between September 2009 and October 26, 2010, and post-TRO acts after

October 27, 2010), and the jury was never called upon to decide whether the elements of simple stalking were satisfied by the pre-TRO acts alone.13 Based on the overlapping time periods in counts 1 and 2, this case equates with the circumstances in Muhammad, involving allegations of simple stalking and stalking in violation of a court order based on a single, indivisible course of conduct. Accordingly, only a single stalking conviction is warranted. Because the court selected count 2 as the principal offense and imposed a concurrent sentence on count 1, we modify the judgment to dismiss the count 1 simple stalking conviction.

DISPOSITION The judgment is modified to vacate the count 1 simple stalking conviction. In all other respects, the judgment is affirmed.

HALLER, J.

WE CONCUR:

MCCONNELL, P. J.

MCINTYRE, J.