People v. Astalis

1 Filed 5/20/14

2 3 4 5 CERTIFIED FOR PUBLICATION 6 APPELLATE DIVISION OF THE SUPERIOR COURT 7 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 8 9 THE PEOPLE, ) BR 051027 10 ) Plaintiff and Respondent, ) (Central Trial Court 11 ) No. 2CA05968) v. ) 12 ) JOHN ASTALIS, ) 13 ) Defendant and Appellant. ) OPINION 14 )

15 16 APPEAL from a judgment of the Superior Court of Los Angeles County, Central Trial

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

18 Deborah Blanchard for Defendant and Appellant.

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

20 and Respondent.

21 22 23 INTRODUCTION

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

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

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

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

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

1

1 Code section 653m, subdivision (b) is unconstitutionally overbroad under the First 2 Amendment, and violates due process of law because it is vague. As discussed below, we 3 affirm. 4 BACKGROUND 5 A complaint charged defendant with violating Penal Code section 653m, subdivision (b). 6 It was alleged that, with the intent to annoy and harass, he made repeated telephone calls, and 7 repeated contact by means of electronic communication devices, and by a combination thereof, 8 directed at Bondan Kosenko. Defendant pled not guilty and the case proceeded to trial. 9 The evidence at trial pertinent to the Penal Code section 653m, subdivision (b) charge 10 showed that defendant became extremely jealous upon learning that Kosenko stayed at the 11 home of defendant‟s estranged wife, Anne-Marie Ackerman. During a span of about one 12 month, defendant called Kosenko on the telephone several times and left voicemail messages, 13 insisting Kosenko call him, and accusing Kosenko of having “sex parties” at the house. 14 Defendant during this time also sent Kosenko e-mail and text messages, calling him 15 “Beelzebub” and other derogatory names, and alleging Kosenko was engaging in lewd activity 16 at the house in front of defendant‟s minor children. Both Kosenko and Ackerman testified 17 Kosenko did not engage in any such behavior, nor was there any reason for defendant to so 18 suspect. In the following four months, defendant left over 40 postings on Kosenko‟s Facebook 19 page, unjustifiably stating Ackerman was mentally ill, and leaving many incoherent messages. 20 Kosenko testified he felt harassed, intimidated, threatened, and annoyed by the calls and 21 contacts. William Bowles and Mary Ann Quintana testified on behalf of defendant that they 22 knew Ackerman, and in their opinion, Ackerman was not an honest person. Defendant testified 23 that he only tried to contact Kosenko because he was concerned about the welfare of his minor 24 children who lived with Ackerman, and he did not intend to annoy or harass Kosenko. 25 Defendant was found guilty, and the court imposed a probationary sentence. He filed a 26 timely notice of appeal. 27 28