Filed 2/15/18 P. v. Rodriguez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

DAVID ANTHONY RODRIGUEZ,

Defendant and Appellant.
D072621



(Super. Ct. Nos. RIF1401807,
RIF1500940)

APPEAL from a judgment of the Superior Court of Riverside County, Michael B. Donner, Judge. Affirmed.
Richard C. Power, under appointment by the Court of Appeal, and Charles R. Khoury, Jr., for Defendant and Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant David Anthony Rodriguez appeals from his conviction on multiple counts related to threatening and harassing behavior directed toward his former wife, who is identified in the trial court record as "Jane Doe." Rodriguez was convicted of one count of stalking, in violation of Penal Code section 646.9, for conduct directed at Doe during the period between August 12, 2014 and June 25, 2015, and one count of making a criminal threat, in violation of Penal Code section 422, as a result of threatening comments that he made to Doe in 2012, in addition to other offenses.
On appeal, Rodriguez challenges only his convictions on these two counts. With respect to his conviction for stalking, as alleged in count 4 of the charging document, Rodriguez raises a number of contentions. He challenges the sufficiency of the evidence with respect to several elements of the offense, including the "harass[ ]" or "follow[ ]" element, the "credible threat" element, and the element of intent to cause reasonable fear in the victim. He also argues that his right to due process was violated because the prosecutor relied on evidence of threats that he made outside of the period of time identified in the charging document as the time period during which he committed this offense to argue that Rodriguez was guilty of stalking.
With respect to his conviction for making a criminal threat as alleged in count 2 of the charging document, Rodriguez challenges the sufficiency of the evidence to support his conviction.
Finally, with respect to his convictions for stalking and making a criminal threat, Rodriguez asserts that any speech that formed the basis of the "threats" that he is alleged to have made during the relevant time periods, as identified in the charging document, was protected by the First Amendment.
We conclude that Rodriguez's contentions are without merit. We therefore affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. Basic background facts and prior domestic violence
Rodriguez, a former police officer, and Doe were married in 2002 and had two children together. According to Doe, although Rodriguez seemed nice and kind at the beginning of the marriage, things changed after the children were born. Specifically, Doe testified that Rodriguez became increasingly controlling and aggressive. He told Doe where she could go, whom she could speak to, and who could visit their house. By the end of 2011, Doe and Rodriguez were having significant marital difficulties; they argued and Rodriguez began physically assaulting Doe by pinching her lips together so that she could not speak and pulling her hair.
Doe documented some of Rodriguez's conduct toward her in a day planner that she kept at her workplace. Among the incidents that she recorded was one that began on May 30, 2011, after Doe refused to sign an inaccurate tax return. Rodriguez woke Doe during the night and yelled at her that she had to sign the document. He then put a pillow over her face and held one hand around her throat. He said that he wished he could kill her. He told her that she "had to submit" and "had to obey him." Rodriguez referred to instances when he used his hands on Doe's throat as a "restraining hold," and according to Doe, he "would do it often."
Another incident occurred on July 5, 2011, when the pair argued over tickets to a musical that Doe had purchased. Rodriguez ordered Doe to return the tickets because "he did not give [her] prior authorization" to buy them, and the pair argued. At the time, Doe was planning to sleep on the couch that night so as "not [to] bother him." While Doe was lying on the couch, Rodriguez came up to her and began choking her with his hands. She could not breathe. Rodriguez was calling her perjorative names in Spanish while he was choking her. The following day, Rodriguez became angry with Doe again, this time because she had taken back her ATM card, which he had previously taken from her. He told her that "he could see doing [her] in just because [she] wasn't following his lead."
Rodriguez would tell Doe that "if [she] didn't make him so mad, he wouldn't be like that [i.e., physically violent toward her]."
In November 2011, another incident occurred during which Rodriguez was physically violent with Doe. He threw a remote control toward her and hit her with it, and then threatened her life. Rodriguez's cousin, J.G., was present during this incident. J.G. testified that he heard Rodriguez tell Doe that "he could bury her in the desert in Mexico." Doe testified that Rodriguez had said, " 'I'm going to bury you in Mexico.' "
2. Relevant events of May 11 and 12, 2012, leading to counts 1 and 2
On the night of May 11, 2012, Rodriguez and Doe each wanted to go out, separately. Rodriguez said that he would go out and return by 10:00 p.m., and that Doe could then go out. Rodriguez did not return at 10:00 p.m. At approximately 11:30 p.m., Doe thought she heard a door to the house open, and she went upstairs to check the bedroom. She did not see Rodriguez. She went back downstairs and checked the doors, and then returned upstairs and found Rodriguez in bed with their two sleeping sons. He appeared to be pretending to be asleep. Doe lifted the blanket off of him and saw that he was wearing underwear and a t-shirt. Doe asked him why he had sneaked into the house, and he cursed at her. Doe noticed a video camera sticking out of a pocket in Rodriguez's pants, which were laid out on a rocking chair. She grabbed the video camera and ran into the bedroom where she had been staying. She believed that the camera had video footage of her that Rodriguez had taken the month prior, which he had been threatening to use in obtaining a divorce and getting custody of their children.
Rodriguez chased Doe into the bedroom. Doe ran into the attached bathroom. Rodriguez followed her there. Doe then ran into the shower. Rodriguez grabbed her right arm and twisted it behind her back in what he referred to as a "police control hold." Rodriguez's action caused Doe pain. Rodriguez then grabbed the video camera from Doe. As Doe was trying to get out of the shower, Rodriguez put his hand around her throat in another restraining hold. He pushed her back into the shower, where she fell down and hit the back of her head. When Doe put her hand on her head because her head hurt, Rodriguez said, " 'Oh, you didn't hit that hard.' "
Doe testified that she said something like, "you know, this is domestic violence" or that she "could call the police." After Doe said this, Rodriguez put his fingers in her mouth, with his thumb under her chin. He moved her jaw back and forth. Doe "didn't know if he was trying to stop [her] from talking, [or] if he was trying to break [her] jaw." Upon removing his fingers from her mouth, he again choked her with one hand. Doe testified that while Rodriguez was doing these things to her, he was "threaten[ing]" her and was "tell[ing her] things like you're going to ruin my life." Specifically, she recalled him saying, " 'You know how easy it would be to kill you?' " She believed that he said this while he was choking her. During these events in the bathroom, Rodriguez also smacked Doe in the face with an open hand.
Rodriguez followed Doe into the bedroom. He pushed her down to the floor, causing minor injury to her knees. While she was on the floor, Rodriguez placed his bare foot on top of her throat, thereby holding her down. Doe was yelling at him to stop, and they continued to argue. Doe tried to yell for help out an open window, but Rodriguez closed the window. He then pressed her up against the wall, restraining her by her neck, and said, " 'You want to go to the desert, bitch?' " Doe was scared that he would follow through on his threat. In the past, he had said things like, " 'Do you want to be buried in Mexico,' " and had told her that "he knows people that would do something [to her for him]."
Rodriguez eventually stopped the physical attack. Doe was not sure whether the fact that she had called out the window for help had "made him stop."
After Rodriguez left the bedroom, Doe placed a small audio recorder that she had recently purchased inside of a shoe. She did so because she wanted to leave some evidence in case she went missing or died. Doe called the nonemergency police line, but then hung up. She did not call 911 because she "wasn't ready to report," and "didn't want to get him in trouble." Doe then tried to call Rodriguez's brother Adam, but when the call was sent to voicemail, she hung up. After Doe made these calls, Rodriguez, who was still angry, entered the bedroom where Doe was.
Rodriguez asked Doe whether she was "going to call the cops." Doe told Rodriguez to close the door and leave her alone. He said, "What did I do? I thought you flushed my fucking wallet down the toilet . . . ." Doe told Rodriguez that she did not deserve to be choked, slapped, thrown down, or have her life threatened. Rodriguez said he was sorry repeatedly, but also said that he had been angry. Rodriguez attempted to explain what had happened, saying things like, "So, I went like this and I went oh fuck the camera. And then you went forward. And then I pushed you and your head went backwards. I'm sorry. And I'm sorry for this. I did that to you."
Rodriguez said that Doe had "started it," and then said, "I reacted to you in the way I know how. When I'm confronted with aggression, I act with aggression." Doe pointed out that she had run away, and Rodriguez repeated himself. He then kept asking Doe whether "they," i.e., the police, were coming.
On the recording, Doe is then heard saying, "What are you doing?" After a long pause, Doe says, "Don't. Don't you dare. Don't you dare." Rodriguez says, "Don't I dare what?" and Doe responds, "Don't you dare. Don't you dare kill me. Don't you dare, David." When Rodriguez then says that he is not going to kill Doe, she states, "I heard I heard a gun. I heard. I heard your gun." She later says, "I heard you putting bullets in your gun." During this recording, Rodriguez repeatedly asks Doe whether the police were coming.
During this discussion, Rodriguez's brother called. After berating Doe for having called his brother, and continuing to argue with her, Rodriguez eventually left Doe alone. Doe then fell asleep. When she awakened at around 9:00 a.m., she felt nauseated and dizzy. She fell back asleep. When Doe awoke again, she felt worse than she had earlier. She left her children with a friend and went to a hospital.
While at the hospital, Doe vomited. Doe told a nurse what had happened, and the nurse indicated that Doe needed to "report it to the police." Doe was diagnosed as having suffered a concussion. Her head and neck felt painful for a few days after the incident.
After Doe left the hospital, she met with a Riverside County Sheriff's deputy to discuss what had happened. The deputy took photographs of Doe's injuries.
Doe obtained an emergency protective order on May 12, 2012, and obtained a temporary restraining order two days later. Despite these orders, Rodriguez continued to contact Doe.
On June 27, 2012, Doe recorded a telephone call from Rodriguez. Rodriguez apologized for all of the times that he had grabbed Doe's mouth and told her to "shut the fuck (unintelligible)." He said that he was sorry "for [his] reckless words in the past too about burying you in Mexico." He acknowledged that he had "pushed [h]er down and all that."
3. Rodriguez's attempts at reconciliation and other evidence regarding his conduct between 2012 and 2014

Rodriguez continued to place telephone calls to Doe during 2012. He sought to have her drop the restraining order so that he could have his guns returned to him for work. In November 2012, Doe overheard her children talking with Rodriguez. Rodriguez told the children that he had been at church while they were there, but said that they had not seen him because he had been wearing a disguise.
In 2013, Doe had the restraining order dissolved so that she and Rodriguez could attend counseling together. Rodriguez attended only one session. Although Doe had the restraining order dissolved, she continued to contact the District Attorney's office to inquire about the progress of the case against Rodriguez. At some point, she was informed that the District Attorney's office had declined to file any charges against Rodriguez because Doe had not provided her medical records. In June 2013, Doe provided a medical record release to the same sheriff's deputy who had interviewed her earlier in the case, and also provided him with recordings of at least two of her telephone conversations with Rodriguez.
4. Events leading to count 3⸻violating a criminal protective order in a domestic violence case

On July 10, 2014, the Riverside District Attorney's office filed charges against Rodriguez. A protective order was also issued at that time. Doe was not aware of the filing of the charges or the issuance of the protective order. She was no longer attempting to reconcile with Rodriguez. Doe first learned of the existence of the protective order when Rodriguez texted a photograph of the order to her. Between July 10 and August 10, 2014, Doe received hundreds of telephone calls and texts from Rodriguez.
5. Relevant events between August 12, 2014 and June 25, 2015, leading to counts 4, 5, and 6—stalking, violating a criminal protective order, and violating a family court protective order

On August 11, 2014, a family court judge issued an order requiring that Rodriguez stay inside his car and remain curbside for exchanges of the children, and that he communicate with Doe about the children solely through an Internet application called "Family Wizard."
On October 14, 2014, Rodriguez informed Doe that he would be dropping off one of the children's school projects at her home. Doe told him not to bring the project to her house, but he did so anyway. Doe took a photograph of Rodriguez in his car outside of her house on that occasion. Although the protective order that had been issued required that Rodriguez stay 100 yards away from Doe, he was approximately 100 feet away from her at that time. Later that day, Rodriguez sent Doe a message that said, " 'I can drive by any time.' "
On October 29, 2014, Rodriguez sent Doe a text message in which he told her to update her "Family Wizard" settings so that she would be notified immediately anytime he sent her a message.
On February 21, 2015, Doe was shopping in a beauty supply store. The children were in Rodriguez's care at that time. At some point, the children walked into the store and spoke with her. Doe was concerned because "[t]here was no reason for them to be there," and she wondered whether Rodriguez was following her. The following day, Doe was shopping at a grocery store when she saw her children enter the store. When she saw them, she "crouched down so that they wouldn't see [her] because [she] was at the tail end of [her] shopping trip, and [she] just wanted to pay and leave." She did not want Rodriguez "to have the opportunity to approach [her]." Seeing the children in the store "increase[d]" her feeling that Rodriguez was following her. Rodriguez and the children saw her, and approached. Rodriguez told her that she "shouldn't buy, you know, dairy milk, yogurt, the stuff that [she] had in [her] cart." Doe believed that Rodriguez was still attempting to "control everything in [her] life." She "wanted it to stop." She "thought that there was a restraining order" that was there to prevent him from approaching her.
On March 5, 2015, Rodriguez spoke to Doe at their son's baseball practice. Doe told him not to talk to her and walked away, but he followed her. When she asked him to leave her alone, he said, " 'I don't have to.' "
A week later, Rodriguez sent Doe a text message telling her that he was going to drop off a blanket for one of the children at her house. The next morning, Doe found a blanket and a basket of fruit on her front porch.
On March 22, 2015, Doe needed some of the children's baseball equipment that was in Rodriguez's possession. She had requested through "Family Wizard" that Rodriguez either leave the equipment at the children's school or drop it off with the babysitter. Rodriguez instead went to Doe's house and put the equipment on her front porch. While he was placing the equipment on her porch, he waved at her. Doe was upset because Rodriguez's conduct was "a total disregard of any court orders," and was "a constant bombardment of coming to the house unannounced and just getting away with it." In Doe's view, Rodriguez was "feeling like he can, like he he's above the law."
On June 14, 2015, Doe received a text message from a number that she did not recognize. The message said, " 'Hi, [Doe], David asked me to drop off the boys' things on the front porch, new clothes that they can use.' " Doe was "scared because [she] didn't know who this person was, and why would they be at [her] house unannounced when there [are] so many people that he could drop stuff off with." When Doe asked who was writing, the response she received said, " 'David's friend, G-N.' " Doe grew even more concerned by this response to her question because, she stated, "We have many friends in common that wouldn't do this. A stranger was coming to my house. A stranger knew where I lived with our sons, and I didn't know who this person was. I didn't know their agenda. I've been threatened that -- you know, he knows people that can do stuff to me. So to have an unknown person text me at that time at night [i.e., 9:37 p.m.] and already have been to my house, that was really concerning."
6. Relevant events leading to count 7⸻perjury
On April 9, 2015, Rodriguez signed a declaration regarding the events that had taken place in the grocery store on February 22, 2015. In the declaration, Rodriguez stated that he believed that Doe had followed him into the store, that he had stayed on the opposite side of the store from her, and that he did not talk to her. The declaration was submitted to the court for filing.
The jury viewed surveillance video of what occurred inside the grocery store. The video showed Doe entering the store at 5:14 p.m., and Rodriguez entering the store at 5:48 p.m. The recording also showed Rodriguez standing in front of Doe's shopping cart and speaking to her.
7. Evidence of Doe's fear and changed behavior
Doe testified that because of Rodriguez's behavior, she had an alarm installed in her home and had her home telephone disconnected. She stayed at the homes of friends or family members on at least 10 different occasions, when "there was a sensitive issue [that would] come up in court." Doe also had the locks to her home changed, and would not let her children have keys to the house, for fear that Rodriguez would ask the children to give him a key. She also did not let her children see the codes to the alarm, and she did not tell them where the remote control to the garage door was kept, for the same reason.
Doe testified that she does not tell her children what plans she has for them for the weekends when they are with her because she does not want Rodriguez to know her whereabouts and is worried that the children might tell him during their court-required telephone calls with him. She also changed the routes that she would take to different places.
Doe is particularly fearful because Rodriguez had "special training in surveillance." She testified that Rodriguez had, in the past, "planted cell phones and hidden them in [her] car so he could have a GPS device."
Doe testified that she felt like "you just never know who's watching. You never feel safe, not even in your own home." She also testified that she feels "more scared now" than she felt "during the incidents where he actually physically assaulted [her] in 2012." She noted, "[T]he fear goes beyond this trial. This is -- whatever happens in the outcome, he is feeling -- this is like the ultimate betrayal to him. So the possibility of him acting out threats that he's made in the past is more real to me now than when we were together."
B. Procedural background
On June 30, 2015, the Riverside County District Attorney filed an amended information charging Rodriguez with seven counts. Count 1 charged Rodriguez with inflicting corporal injury resulting in a traumatic condition upon Doe, his spouse, on or about May 11, 2012 (Pen. Code, § 273.5, subd. (a)). The information further alleged that Rodriguez personally inflicted great bodily injury under circumstances involving domestic violence (§§ 12022.7, subd. (e), 1192.7, subd. (c)(8)).
Count 2 charged Rodriguez with making a felony criminal threat on or about May 12, 2012 (§ 422). Count 3 charged Rodriguez with misdemeanor willful violation of a protective order issued in a criminal proceeding involving domestic violence between July 10, 2014 and August 10, 2014 (§ 136.2).
Count 4 charged Rodriguez with stalking Doe between August 12, 2014 and June 25, 2015 (§ 646.9, subd. (b)). The information further alleged, with respect to count 4, that Rodriguez committed the offense while released from custody on another offense (§ 12022.1).
Count 5 charged Rodriguez with willfully violating a protective order issued in a criminal proceeding involving domestic violence between August 12, 2014 and June 25, 2015, a misdemeanor (§ 166, subd. (c)(1)).
Count 6 charged Rodriguez with violating a protective order issued in a domestic violence case between August 12, 2014 and June 25, 2015, a misdemeanor (§ 273.6, subd. (a)).
Count 7 charged Rodriguez with perjury for making a false statement under penalty of perjury on or about April 9, 2015 (§ 118).
A jury found Rodriguez guilty on all counts, and further found true the enhancement allegation that Rodriguez committed the offense charged in count 4 while released from custody on another felony offense. However, the jury found not true the enhancement allegation that Rodriguez personally inflicted great bodily injury on Doe with respect to count 1.
The trial court sentenced Rodriguez to a term of seven years eight months in prison.
Rodriguez filed a timely notice of appeal.
III.
DISCUSSION
A. Rodriguez's conviction for stalking, as alleged in count 4
Rodriguez raises a number of challenges to his conviction for stalking, in violation of section 646.9, as alleged in count 4. Specifically, Rodriguez challenges the sufficiency of the evidence as to each element of the offense—i.e., the "follows" or "harasses" element, the credible threat element, and the intent to place the person in reasonable fear element. He further contends that his right to due process was violated by the People's reliance on evidence of threats that he made to the victim that did not occur during the specific time period that he is alleged to have stalked her, with respect to count 4.
1. Relevant law and additional background
Section 646.9, subdivision (a) provides: "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." (Italics added.)
Subdivision (b) of section 646.9 establishes increased punishment when the offense is committed while a restraining order or injunction is already in effect: "Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years."
The statute defines a "credible threat" in relevant part as "a verbal or written threat . . . or a threat implied by a pattern of conduct . . . made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety . . . and made with the apparent ability to carry out the threat." (§ 646.9, subd. (g), italics added.) Therefore, unlike the threat defined by section 422, which sets forth the offense of making a criminal threat, a threat for purposes of the stalking statute does not require verbalization, a writing, or an electronic communication; rather, the statute makes clear that the threat may be implied by a pattern of conduct. (People v. Franz (2001) 88 Cal.App.4th 1426, 1440 (Franz).)
The stalking statute also defines the terms "harasses" and "course of conduct." "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," and " 'course of conduct' means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose. . . ." (§ 646.9, subds. (e), (f).)
As used in the statute, the word "repeatedly" means "the perpetrator must follow the victim more than one time." (People v. Heilman (1994) 25 Cal.App.4th 391, 400 (Heilman).)
Consistent with these principles, the trial court instructed the jury with CALCRIM No. 1301, regarding the offense of stalking, as follows:
"The defendant is charged in Count 4[ ]with stalking in violation of Penal Code section 646.9 (b).

"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;

"AND

"3. A restraining order and a criminal protective order 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 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 implied by a pattern of conduct or a combination of statements and conduct.

"Harassing means engaging in a knowing and willful course of conduct directed at a specific person that seriously annoys, alarms, torments, or terrorizes the person and that serves no legitimate purpose.

"A course of conduct means two or more acts occurring over a period of time, however short, demonstrating a continuous purpose.

"Someone commits an act willfully when he or she does it willingly or on purpose.

"Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, annoy, or injure someone else.

"Repeatedly means more than once.

"The People do not have to prove that a person who makes a threat intends to actually carry it out.

"The terms and conditions of a restraining order and criminal protective order remain enforceable despite the parties' actions, and may only be changed by court order."

2. Analysis

a. There is sufficient evidence to support the jury's finding of guilt with respect to the offense of stalking

In determining whether there is sufficient evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
i. There is sufficient evidence to support a finding that Rodriguez harassed or followed Doe during the relevant time period

Rodriguez challenges the sufficiency of the evidence with respect to the "follows" or "harasses" element of stalking, pertaining to his conduct between August 12, 2014 and June 25, 2015, the dates alleged in count 4 of the charging document. According to Rodriguez, there was no evidence that he followed Doe, and his contacts with Doe could not amount to harassment because those contacts always concerned their children. In addition, he asserts that while Doe maybe have been "upset or mildly annoyed by what happened now and then," she "was not seriously terrorized, alarmed, tormented, or annoyed" by his conduct.
We conclude that the record discloses abundant evidence to support a finding that Rodriguez both "willfully, maliciously, and repeatedly follow[ed]" Doe and "willfully and maliciously harasse[d]" her. (§ 646.9.)
Again, the phrase "repeatedly" as used in the stalking statute requires only two instances of following. (Heilman, supra, 25 Cal.App.4th at p. 400.) The jury could have reasonably inferred, from the evidence presented with respect to events that occurred on February 21, 2015, and February 22, 2015, that Rodriguez followed Doe. On February 21, 2015, a date on which the children were in Rodriguez's care, Rodriguez appeared outside of a beauty supply store where Doe was shopping and permitted the children to go inside to see Doe. Doe testified that as soon as that happened, she was afraid that Rodriguez was following her. The next day, Rodriguez and the children again appeared at a store where Doe was shopping—this time a Vons grocery store. Rodriguez, who had nothing in his cart, walked up to Doe with the children and made critical comments about the items that Doe had in her cart. Doe testified that she was again afraid that Rodriguez was following her. Both of these incidents occurred in violation of a protective order, and also constituted violations of the family court order prohibiting Rodriguez from communicating with Doe other than through "Family Wizard." Given the circumstances, the jury could have concluded that these incidents were not accidental, but instead purposeful, and that they were done with the "unlawful intent to disturb [or] annoy" (CALCRIM No. 1301) Doe by causing her to be concerned that Rodriguez was keeping tabs on Doe's movements.
Further, there was abundant evidence that Rodriguez failed to comply with the family court order to communicate with Doe solely through the "Our Family Wizard" application, and that he instead chose to call and text her repeatedly on her cell phone, and/or to show up at her house, either with minimal or no warning, and despite her requests that he not do so. In fact, between August 12, 2014 and March 30, 2015, Rodriguez sent or left Doe hundreds of texts and voicemails. He appeared at her house a number of times. On one occasion, after she had specifically asked him not to come to her house, he texted her, " 'I can drive by any time.' " In addition, Rodriguez would not leave Doe alone when they were at events involving their children. She recounted that, at one of their children's baseball practices, Rodriguez began talking with her and she indicated to him that she did not wish to speak with him. He began to follow her and when she told him to leave her alone, his response was not to stop and walk away, but instead to say, " 'I don't have to.' " In fact, Rodriguez was under court orders that required him to stay away from Doe and to communicate with her only through "Family Wizard" at that time. Doe testified to the emotional consequences that she suffered as a result of Rodriguez's conduct. She did not feel safe, there was "always fear," and she experienced his actions as "a constant bombardment of coming to the house unannounced," which caused her great concern. Doe took affirmative steps to try to protect herself from Rodriguez, changing the locks, installing an alarm system, not giving her children keys to the house for fear that Rodriguez would have access to them, disconnecting a home telephone so that he would have less ability to reach her, staying with friends out of fear, and changing her driving routes.
Rodriguez further attempts to undermine the jury's finding that he harassed Doe by suggesting that because the parties shared children together, "there was a legitimate purpose behind [his] actions, even though they might have been violative of the restraining order." We reject this suggestion. The fact that the parties share children does not mean that a party who has been restrained by a court from specific methods of contacting the other has a "legitimate purpose" in using the prohibited methods. None of the instances of communication that Doe recounted involved emergencies or necessity; Rodriguez could have utilized "Family Wizard" to communicate with Doe, and he could have exchanged items at the children's school or through a babysitter, as she had specifically requested he do. He had no need to engage with Doe in person at any time.
From the evidence we have recounted, a reasonable jury could readily conclude that during the period of time charged in the information, Rodriguez harassed Doe—i.e., that he "engag[ed] in a knowing and willful course of conduct directed at [Doe]" that "seriously annoy[ed], alarm[ed], torment[ed], or terrorize[d] the person and that serve[d] no legitimate purpose." (§ 646.9, subds. (e), (f).)
ii. There is sufficient evidence to support a finding that Rodriguez's conduct constituted a credible threat to Doe

Rodriguez contends that there is insufficient evidence that he made a "credible threat" directed at Doe during the time period alleged in connection with the offense of stalking. Specifically, he asserts that there "was no qualifying accompanying credible threat made during the time period when the following or harassing allegedly occurred, regardless whether there was some following and/or harassment during the charged time period plus some threat made at some prior time." He further contends that, with respect to the time period identified in connection with the charge of stalking, there was "nothing done during th[at] time period . . . [that] qualifies . . . as being a 'credible threat.' "
Proof that the defendant made "a credible threat" is a required element for a conviction of stalking. (People v. Ewing (1999) 76 Cal.App.4th 199, 210.) The stalking statute defines a "credible threat" very broadly as "a verbal or written threat . . . or a threat implied by a pattern of conduct . . . made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety . . . and made with the apparent ability to carry out the threat." (§ 646.9, subd. (g), italics added.)
Thus, unlike the threat defined by section 422—i.e., a criminal threat—a threat for purposes of the stalking statute does not require verbalization, a writing, or an electronic communication of the alleged threat; rather, the threat may be implied by a pattern of conduct. (See Franz, supra, 88 Cal.App.4th at p. 1440.) Further, it is well understood that an implied credible threat may be inferred from a pattern of stalking conduct. (People v. Uecker (2009) 172 Cal.App.4th 583, 595 (Uecker) ["a reasonable jury could have found that defendant made an implied threat to her safety in that he was going to do whatever he needed to get M. to go out with him"]; People v. Falck (1997) 52 Cal.App.4th 287, 299 (Falck) ["it can be inferred that appellant intended to cause fear in the victim from the fact that he insisted on maintaining contact with her although she clearly was attempting to avoid him, and although he had been warned away by the police"].)
Rodriguez maintains that there is no evidence that he made a credible threat during the time period charged in the stalking count and suggests that his conviction for stalking "came about, and could only possibly have happened, because the jury was invited by the prosecutor to incorporate and treat as threats, actions or statement occurring or made outside the charged time frame." Rodriguez focuses his argument on the presupposition that the "qualifying threat" for the stalking offense occurred prior to the alleged harassment or following. Rodriguez fails to acknowledge that evidence of his pattern of harassing and/or following Doe itself amounts to a credible threat under the stalking statute. There was plenty of evidence of Rodriguez's repeated contacting of Doe, and his showing up at her house despite a court order to stay at least 100 yards away from her. Further, the evidence demonstrating that Rodriguez appeared in two different locations where Doe was shopping, two days in a row, could raise a reasonable inference that Rodriguez was purposely following Doe, to communicate to her that he could find her no matter where she was. In addition, on at least two different occasions during this time period, Rodriguez essentially told Doe that he could get to her whenever he wanted to, and that there was nothing she could do to prevent him from doing so. Specifically, when Rodriguez showed up at Doe's house, after she had asked him to refrain from doing so, he told her, " 'I can drive by any time.' " Later at a baseball practice, Rodriguez followed Doe when she tried to get away from him, and when she told him to leave her alone, he said, " 'I don't have to.' " Given Rodriguez's history of controlling and violent behavior, these comments could reasonably be viewed as threatening in nature.
The fact that Rodriguez did not make any overt suggestions that he would use violence against Doe during the time period charged in relation to the stalking offense does not preclude a finding that Rodriguez's pattern of conduct constituted a "credible threat." (See People v. Lopez (2015) 240 Cal.App.4th 436, 451–452 (Lopez) [although communication to victim "did not contain overt suggestions of violent intent," pattern of harassing conduct was still sufficient to support a finding that conduct amounted to a "credible threat"]; see also Uecker, supra, 172 Cal.App.4th at pp. 586–588 [pattern of conduct with respect to one victim sufficient to constitute credible threat despite absence of expression of violent intent].) We therefore reject Rodriguez's suggestion that there was "not a real threat involved" in connection with the stalking charge.
Further, the jury could properly consider whether Rodriguez's pattern of conduct during the time period of the stalking offense could be considered to constitute a "credible threat" within the greater context of Rodriguez's prior domestic violence toward Doe. Evidence Code section 1109 specifically contemplates the introduction of evidence of prior acts of domestic violence to prove that a defendant has a propensity to engage in domestic violence when the defendant is charged with an offense involving domestic violence. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1114.) Further, specifically with respect to consideration of whether a defendant's conduct amounts to a "credible threat" under the stalking statute, "a court 'cannot ignore what a victim knows about a defendant, regardless of how [that information] is learned, in assessing whether a defendant's behavior rises to the level of a credible threat.' " (People v. McPheeters (2013) 218 Cal.App.4th 124, 138, quoting, Uecker, supra, 172 Cal.App.4th at p. 598, fn. 10.) Courts have concluded that the admission of past domestic violence is highly relevant to questions involving both a defendant's intent to place a victim in fear, as well as whether the conduct engaged in by a defendant would cause a reasonable person in the victim's position to suffer substantial emotional distress. (See People v. McCray (1997) 58 Cal.App.4th 159, 172 (McCray).) As the McCray court noted, "it is difficult to imagine how the jury could have properly assessed [the victim]'s response to appellant's conduct without knowledge of these past [domestic violence] incidents." Further, a defendant is " 'not entitled to have the jury determine his guilt or innocence on a false presentation that his and the victim's relationship . . . [was] peaceful and friendly.' " (Ibid.)
We reject Rodriguez's attempt to compare his conduct with that of defendants in other cases to suggest that the pattern of conduct in which he engaged was insufficient to constitute a credible threat. Rodriguez cites People v. Tran (1996) 47 Cal.App.4th 253, Falck, supra, 52 Cal.App.4th 287, People v. Halgren (1996) 52 Cal.App.4th 1223, People v. McClelland (1996) 42 Cal.App.4th 144, People v. Gams (1997) 52 Cal.App.4th 147, People v. Kelley (1997) 52 Cal.App.4th 568, and Lopez, supra, 240 Cal.App.4th 436, and attempts to distinguish the facts of this case from the facts in those cases. Those cases generally involve more egregious behavior than the behavior in which Rodriguez engaged. However, that does not mean that the evidence presented as to Rodriguez's conduct is insufficient to support a finding that Rodriguez's pattern of conduct constituted a credible threat to Doe. The fact that there have been other defendants whose threatening behavior has been more explicit does not undermine the sufficiency of the evidence in this case.
We thus conclude that even in the absence of overt threats in Rodriguez's verbal or written communications during the time frame of the stalking offense, the evidence of the course of conduct in which Rodriguez engaged is sufficient to support a finding that his conduct constituted a credible threat within the meaning of section 646.9, subdivision (g), i.e., that it constituted a "threat implied by a pattern of 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."
iii. There is sufficient evidence to support a finding that Rodriguez intended to place Doe in reasonable fear for her safety

Rodriguez contends that there is insufficient evidence to support a finding that he intended to place Doe in reasonable fear for her safety. He asserts that "[a]t no time did [Doe] describe anything said or done by Rodriguez that actually threatened her safety or the safety of her family," and that "[n]othing that he said or did evidenced any intent to place [Doe] in reasonable fear for her safety." He further states, "Rodriguez was a pest and annoying but he never specifically said or did anything during the time period for which stalking was charged that was frightening or that appeared in any manner to threaten [Doe]'s safety."
Rodriguez fails to acknowledge the significant history between himself and Doe, including the fact that he had, in the past, not only threatened to harm and/or kill Doe, but that he had, in fact, been physically violent toward her. Viewed in context, Rodriguez's conduct during the time period for which the offense of stalking was charged, including the excessive number of calls and texts, despite the protective order prohibiting this conduct, his repeatedly showing up at Doe's house unannounced in spite of Doe's request that he not come to her house, his following and engaging with her when she clearly did not want to speak with him, and his "coincidental" appearances at public locations where Doe was shopping, could reasonably be found to be both frightening and threatening, and intentionally so. Rodriguez had been told in multiple ways, both by Doe and by the court system, to leave Doe alone and to communicate with her solely through "Family Wizard," so that his communications could be monitored by the court. Rodriguez persistently ignored these boundaries. Rodriguez's message to Doe, through his conduct and through his express words to her, was that regardless of the law and the court system, he could reach her at any time. And Doe received the message. She lived in fear and had to alter her life to try to protect herself from what she viewed as the threat that Rodriguez posed to her.
Prior to the parties' separation, Rodriguez had been physically abusive toward Doe. His message that he could still reach her, even after the separation, must be considered in light of this history. Given the evidence presented at trial, a reasonable jury could conclude that Rodriguez's intention was to send a message to Doe that she could not escape him, and that he intended to place her in fear for her safety.
3. There was no due process violation with respect to the People's references to threats that occurred prior to the specific time period alleged in the charging document as to count 4.

Rodriguez argues that his right to due process was violated because "the elements of following, harassing, and making a credible threat claimed by the People to support the stalking conviction did not all occur within the time period specifically alleged (noticed) in the charging document." We reject this contention, for a number of reasons.
First, Rodriguez did not object to any references to the evidence that the prosecutor made during closing arguments at trial. He has therefore forfeited the issue for purposes of appeal. The purpose of the doctrine of forfeiture " ' " 'is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .' " [Citation.] " 'No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' . . . " [Citation.] [¶] "The rationale for this rule [is that] . . . . ' "In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." ' " [Citation.]' (Fn. omitted; see [citations].)" (People v. Simon (2001) 25 Cal.4th 1082, 1103.)
Further, we are not convinced that Rodriguez's reading of the record is correct. He notes that the prosecutor told the jury that it could "look at the 'totality of the circumstances' " and that the prosecutor "mention[ed] the supposedly qualifying threat 'made when [Rodriguez's cousin] heard it.' " Although the prosecutor referred to Rodriguez's history of domestic violence and his history of threatening Doe in discussing the stalking offense, the prosecutor said, "You can look at all of that [history of violence] together, and you can look at the implied threat by the pattern of conduct, and when you think about this, you look specifically to what [Doe] knew about the defendant when he had previously gotten upset at somebody for coming forward with information, how he obsessed and he stalked and he threatened, and she was more worried about this because of the way that he had acted before. So that was to her state of mind that this was a credible threat, that this just wasn't some -- you know, a silly violation but that she was potentially in danger." (Italics added.) The prosecutor mentioned the pattern of conduct in which Rodriguez had engaged with respect to the following and/or harassing element, but also specifically appeared to focus on whether all of this conduct demonstrated an intent to place Doe in reasonable fear for her safety. The prosecutor was relying on the history of express threats and domestic violence, in particular, to establish that Doe's fear of Rodriguez during the period charged in relation to the stalking offense was reasonable, and that he harbored the intention to place her in fear. We are thus unconvinced that the prosecutor's argument suggested to the jury that it could convict Rodriguez of stalking based on express threats that he made toward Doe outside of the time frame alleged in the charging document rather than on a threat that the jury could infer based on his conduct.
Further, even if the prosecutor had suggested that the jury could rely on threats made prior to the time frame for which the offense of stalking was charged, Rodriguez still could not demonstrate that he was prejudiced by the prosecutor's argument with respect to his conviction on count 4 for a number of reasons. First, the jury asked a question of the trial court that demonstrates that the jury was considering the specific dates alleged with respect to count 4, and the court informed the jury that it could base a conviction for stalking, as alleged in count 4, only on conduct in which Rodriguez engaged between August 12, 2014 through July 25, 2015. In "Jury request No. 3," the jury asked, "For count 4 stalking – Calcrim No. 207 [¶] 1. What Dates Apply to the stalking charge; 2. On Page 13 [of the jury instructions] 7 Dates Are listed[,] how are they related to stalking[?]" The court responded to the jury's questions as follows:
"1. August 12, 2014 to and including 6.25.15. The People are not required to prove that the crimes took place exactly on those days but only that it happened reasonably close to those days.

"2. Answered above." (Italics added, some capitalization omitted.)

Given the court's response, the jury was clearly advised that it had to consider only Rodriguez's conduct between August 12, 2014 and June 25, 2015, in deciding whether he was guilty of stalking.
In addition, the jury was also specifically instructed regarding how it could use evidence of uncharged domestic violence, including, importantly, all of the evidence of prior threats that Rodriguez had made toward Doe. The jury was instructed with CALCRIM No. 852, regarding evidence of uncharged domestic violence, and was specifically instructed that evidence of Rodriguez's uncharged domestic violence, including his threats, such as telling Doe that he "could see himself doing her in," and the threat overheard by his cousin that Rodriguez "was going to bury [Doe] in Mexico," could be considered "only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence." The jury was further instructed that if it did determine that Rodriguez committed these uncharged acts, it could, but was not required to, conclude that Rodriguez was disposed or inclined to commit domestic violence, and, "based on that decision, also conclude that the defendant was likely to commit and did commit the crimes charged in Counts 1, 2, 3, 4, 5 and 6." The jury was further admonished that the evidence of the uncharged acts was "not sufficient by itself to prove that the defendant is guilty of the crimes charged in Counts 1, 2, 3, 4, 5 and 6." The jury was thus informed that the evidence of the express threats that Rodriguez made prior to the time period set forth in the stalking charge in count 4 was merely propensity evidence regarding uncharged acts—i.e., it was not evidence of conduct underlying the offenses for which he was charged.
Given the instructions to the jury, as well as the jury's question and the court's response, it is not reasonably probable that the jury relied on threats made outside of the charged time period in convicting Rodriguez of stalking, as charged in count 4, regardless of what the prosecutor stated during closing argument.
B. There is sufficient evidence to support Rodriguez's conviction for making a criminal threat, as alleged in count 2

Rodriguez contends that there is insufficient evidence to support his conviction on count 2, for making a criminal threat. According to Rodriguez, the statements that he made in May 2012, including " 'You know how easy it would be to kill you?' " and " 'You want to go to the desert, bitch?' " were ambiguous, and at most, were merely "angry question[s]" that did not convey an immediate threat sufficient to cause a reasonable person to be in sustained fear.
We apply the same standards for assessing the sufficiency of evidence with respect to count 2 that we set forth in section A.2.a, ante, when we discussed the sufficiency of the evidence with respect to count 4.
Penal Code section 422, subdivision (a) sets forth the offense of making a criminal threat, as alleged in count 2:
"Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."

The offense of making a criminal threat has been described as comprising five elements:

"In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227–228.)

The evidence presented at trial showed that on the night of May 11, 2012, and continuing into the early morning of May 12, Rodriguez and Doe were arguing. Rodriguez followed Doe into the bathroom and she hit her head and suffered a concussion. Also, that night, Rodriguez placed his hand on Doe's neck and choked her. He said, " 'Do you know how easy it would be to kill you[?]' " Rodriguez also said, " 'You want to go to the desert, bitch?' " At some point, Rodriguez left the room and Doe could hear what sounded to her like he was loading his gun. Doe was so concerned for her safety that she activated a small recorder, which she hid inside of a shoe, in order to leave evidence in case she "ended up missing."
When Doe was asked what Rodriguez had meant by his reference to "go[ing] to the desert," she said that she understood him to be telling her that he "wanted to kill" her. Doe believed that Rodriguez was capable of following through with his threat, particularly because he had told her on other occasions that he knew people who could kill her and leave her in the desert. Doe testified that Rodriguez's questions scared her, and that on a scale from 1 to 10, with 10 being the most stress she has ever endured, the events of May 11–12, 2014 constituted a "10."
Rodriguez argues that his asking Doe, " 'You know how easy it would be to kill you?' " and " 'You want to go to the desert, bitch?' " fails to meet the requirement that a threat be "so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat." (§ 422, subd. (a).) He contends that these comments were "ambiguous," "not specific," "equivocal" statements that were worded as "question[s] rather than as . . . direct threat[s]." He further maintains that these comments were "more of a suggestion as to a possibility," and not a "direct threat to kill," and that they "convey[ed] no immediate prospect of killing." According to Rodriguez, these comments were "somewhat intimidating," but were not criminal threats. Rodriguez also focuses on the fact that in the past, he had suggested to Doe that he could not kill her because "he would be the number one suspect."
Rodriguez's contentions in this respect are untenable. Even "[a] communication that [may be] ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning. (In re George T. (2004) 33 Cal.4th 620, 635 (George T.) Rodriguez made both comments during a violent incident in which he chased Doe into a bathroom, pushed her backward into a shower, causing her to suffer a concussion, and proceeded to choke her. It was during this attack that Rodriguez "asked" Doe whether she " 'kn[e]w how easy it would be to kill' " her, and whether she wanted " 'to go to the desert.' " From Doe's perspective, these were not ambiguous questions, and she did not take them as such. She clearly understood the implication of Rodriguez's words, as her conduct in activating and hiding a recording device demonstrates. From this evidence, one could reasonably conclude that Rodriguez was unambiguously, unequivocally, and specifically threatening Doe with death if she continued to stand up to him, and that he was using these threats to assert his will against her, and to obtain her submission.
Rodriguez also argues that his "questions" cannot be viewed as meeting the "immediacy" requirement set forth in the statute. According to Rodriguez, he "said nothing about doing anything immediately." This contention ignores the fact that Rodriguez was being physically violent toward Doe at the very time that he made the comments. In fact, Doe testified that he made at least one of the comments while he was choking her. The clear import of Rodriguez's "questions" about killing Doe, while he was engaging in physical violence against her, was that there was the immediate prospect that he would carry out the threat.
Given the state of this record, we reject Rodriguez's contention that there is insufficient evidence to support his conviction for making a criminal threat.
C. Rodriguez's First Amended argument with respect to the threats at issue as to counts 2 and 4 is without merit

Rodriguez contends that the speech in which he engaged that was the subject of his conviction for making a criminal threat in count 2, and any speech in which he engaged that was the basis of the "credible threat" element for his conviction for stalking in count 4, was protected by the First Amendment, and therefore, his convictions on these counts must be reversed.
"[A] reviewing court should make an independent examination of the record in a section 422 case when a defendant raises a plausible First Amendment defense to ensure that a speaker's free speech rights have not been infringed by a trier of fact's determination that the communication at issue constitutes a criminal threat." (George T., supra, 33 Cal.4th at p. 632.) "Independent review is not the equivalent of de novo review 'in which a reviewing court makes an original appraisal of all the evidence to decide whether or not it believes' the outcome should have been different." (Id. at p. 634.) "Because the trier of fact is in a superior position to observe the demeanor of witnesses, credibility determinations are not subject to independent review, nor are findings of fact that are not relevant to the First Amendment issue. [Citations.] . . . [U]nder the substantial evidence standard, the question is whether any rational trier of fact could find the legal elements satisfied beyond a reasonable doubt, whereas under independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. Accordingly, [a reviewing court] will defer to the [trial] court's credibility determinations, but will ' " 'make an independent examination of the whole record' " ' (citation), including a review of the constitutionally relevant facts ' "de novo, independently of any previous determinations by the [trial court]" ' (citations) to determine whether [the speech at issue] was a criminal threat entitled to no First Amendment protection." (Ibid.)
Applying independent review here, we conclude that the evidence establishes that Rodriguez made a criminal threat against Doe. Such a threat is not entitled to First Amendment protection. Again, Rodriguez's contention is founded on a challenge to one of the five elements of the criminal threat offense; Rodriguez contends that his statements, phrased as questions, were not "on [their] face and under the circumstances in which [they were] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat." (§ 422, subd. (a).) We disagree. Rodriguez "asked" Doe if she understood how easy it would be for him to kill her, and also "asked" her whether she wanted to go to the desert, not as theoretical questions about the nature of things or her desires, but to convey to her that she must submit to his will or risk death. He did so while engaged in a violent argument with her and while using physical force against her. These statements, under the circumstances, were unequivocal, unconditional, immediate, and specific threats to harm Doe, and conveyed to her a gravity of purpose and the prospect that Rodriguez would immediately carry out the threat. We therefore reject Rodriguez's contention that his statements to Doe made between May 11 and May 12, 2012, are protected by the First Amendment, such that he may not be punished criminally for making them.
With respect to the offense of stalking, Rodriguez "incorporate[s]" the "argument appearing in Part C of Argument VI" of his opening brief—i.e., he incorporates his First Amendment argument regarding the offense of making a criminal threat, as alleged in count 2. He offers no additional analysis with respect to this claim. Our independent review of the evidence confirms that Rodriguez's pattern of harassing and following conduct constituted a "threat implied by a pattern of 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" (§ 646.9, subd. (g)), as required by the stalking statute. Threats that meet the requirements of the stalking statute "pose a danger to society and thus are unprotected by the First Amendment." (Falck, supra, 52 Cal.App.4th at pp. 296–297.) We therefore reject Rodriguez's First Amendment argument with respect to his conviction on count 4 for stalking Doe.
IV.
DISPOSITION
The judgment is affirmed.


AARON, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.