The NCIS Actor, the Restraining Order and the Tweets

After Francis Shivers was convicted of “violating a restraining order and electronically distributing a harassing message” in violation of, respectively, California Penal Code  §§273.6(a) and 653.2(a), he appealed.  People v. Shivers, 2015 WL 1672352 (California Court of Appeals 2015).  The court began its opinion by explaining how the case arose:

Laura Pauley Perrette and [Shivers] were divorced in 2004, and Perrette obtained a restraining order against [him] in 2006. The order prohibited [Shivers] from, inter alia, harassing, threatening, following, stalking, molesting, or disturbing the peace of Perrette, and from coming within 100 yards of her.

On March 20, 2012, Perrette and her fiancé, Thomas Arklie, went to a restaurant on Franklin Avenue in Hollywood. Perrette and Arklie were seated at a table at the end of a row of tables along a wall that started at the entrance to the restaurant. At approximately 7:30 p.m., [Shivers] and his wife, Mayra Dias Gomes, entered the restaurant. The only available table was the one next to where Perrette and Arklie were sitting. As [Shivers]  and Gomes were escorted by a waitress toward the direction of Perrette's table, [he] told the waitress, `I cannot sit over there.’

Perrette and Arklie testified [Shivers] got within eight inches to one foot from Perrette's face, and smirked and smiled. Perrette became very upset, shrunk into her chair, and covered her face with her hands. [Shivers] pulled out his cell phone, held it out towards Perrette, and walked backwards while appearing to use the phone's video function. Arklie stood up from where he was seated, got in front of the table, and positioned his body to block [Shivers’] view of Perrette. Arklie, who was about 12 feet away from where defendant was holding his phone, stood next to the table, and told [Shivers], `You are not allowed to do that here.’ Arklie held his hand up in front of his face to avoid being taped. He denied threatening or assaulting [Shivers].

As [Shivers] backed away, pointing his camera in Perrette's direction, he screamed, `I have a restraining order against her. I have a restraining order against her.’ Video captured by [his] camera phone was taken from near the restaurant's entrance, and it showed the table where Perrette and Arklie were sitting. On the video, [Shivers] pointed to the table and stated, `He just threatened me. He just came at me threatening me.’ Gomes responded, `I know, I saw.’ [Shivers] asked, `You saw?’ to which Gomes responded, `Yeah.’ [Shivers] shouted, `Could you tell the manager here that I have a restraining order on that other person,’ and `He just came at me threatening me.’ Patrons . . . turned around to see why [Shivers] was shouting. Perrette was extremely embarrassed by the commotion. Perrette called 911 to report a violation of the restraining order. Prior to the police arriving, [Shivers] left the restaurant.

People v. Shivers, supra.

When the case went to trial before a jury, Myra Dias Gomes testified that

when she and [Shivers] reached the table next to Perrette, [he] immediately returned to the front of the restaurant and did not get near Perrette's table. Gomes also testified she felt threatened by Arklie, `the way that he suddenly got up from the table and came at us seemed . . . threatening.’

People v. Shivers, supra. 

The Court of Appeals goes on to explain that

[w]ith regard to the Penal Code § 653.2 charge, Perrette testified that, starting a few years prior to 2012, [Shivers] began posting comments about her on his Twitter website. Perrette was an actor on the CBS television series `NCIS,’ and persons who searched `# NCIS’ or Perrette's name on Twitter would find [Shivers’] posts. [He] repeatedly posted messages, or `tweeted,’ that Perrette `stalked’ him and made death threats against him, although Perrette had not done so. [Shivers] also falsely tweeted he had `restraining orders’ against her.

Perrette lived in the area of Cahuenga Boulevard and Franklin in Hollywood, and many of [Shivers’] tweets referenced this area, alerting people to be on the lookout for Perrette. Several of [his] tweets were made in response to persons who had accessed his original tweets, and some of his tweets were also reposted, or `retweeted,’ by third parties onto their Twitter pages. A tweet posted by [Shivers] on April 8, 2012, appeared to reference the incident at the restaurant: `my wife [and] I went to our favorite restaurant, but [Perrette] was waiting for us so we left.’

People v. Shivers, supra.  The Court of Appeals also noted that the tweets posted on

July 4, 2012, and July 8, 2012, which were the basis for the Penal Code § 653.2 charge, stated, respectively, `HAPPY FOURTH OF JULY EVERYONE. SEE YOU ON MY USUAL HANGOUT, CAHUENGA!! (If you see my stalker Pauley Perrette follow me there call LAPD!!!’ and `Speakin of # Cahuenga i'll be there 2nite as usual. If you see my stalker # NCIS Pauley Perrette follow me there report her to LAPD immediately!’ (Capitalization in original.)

People v. Shivers, supra.      

On appeal, Shivers made the following arguments:

Regarding the restraining order charge, [he] contends the court misinstructed the jury, erroneously failed to instruct sua sponte on self-defense, and erred in answering the jury's question. Concerning the harassing message charge, [Shivers] contends there was insufficient evidence presented at trial, and the court failed to properly instruct the jury on the elements of the offense.

People v. Shivers, supra.      

The Court of Appeals began its analysis of his arguments with the charge under California Penal Code § 273.6(a) explaining that Shivers

contends the court failed to correctly instruct the jury concerning the elements of Penal Code § 273.6, subdivision (a). `The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law [citations omitted]. . . .’ (People v. Posey, 32 Cal.4th 193, 218 (California Supreme Court 2004).

People v. Shivers, supra.  As Wikipedia explains, in U.S. jury trials the jurors are the finders of fact, i.e., they decide whether the facts proven by the evidence introduced at trial “prove” one or all of the elements of the crime(s) with which a defendant is charged.  To assist them in that process, the trial judge “instructs” the on the applicable law, by giving them oral (and usually written) instructions on the relevant law.  As this site explains, in a criminal trial the prosecutor and defense attorney can each ask the judge to submit certain instructions, which they have drafted and submitted for the judge’s consideration.  But judges can also submit instructions on their own; Shivers seems to be arguing that this judge failed to sua sponte submit certain instructions concerning the violation of a restraining order charge.  People v. Shivers, supra. 

The Court of Appeals began its analysis of his argument by pointing out that

`Penal Code § 273.6, subdivision (a), provides it is a misdemeanor for a defendant to commit “Any intentional and knowing violation of a protective order. . . .” The court provided the jury with an instruction based on CALCRIM No. 2701. The court instructed that the People had to prove: `One, a court issued a written order that the defendant stay 100 yards away and must not harass, follow, disturb the peace, keep under surveillance, contact, telephone, or send messages or mail or email or take any action to obtain the location of the protected person. [¶] . . .

The second element [is] the court order was a protective order issued under Family Code section 6218. [¶] The third element [is] the defendant knew of the court order. [¶] The fourth element is the defendant had the ability to follow the court order. [¶] And the fifth element is the defendant intentionally violated the court order. [¶] The People must prove the defendant knew of the court order and that he had the opportunity to read the order or otherwise become familiar with what it said. [¶] But the People do not have to prove the defendant actually read the court order.’

People v. Shivers, supra. 

Shivers argued that the instruction above was

invalid because it did not inform the jury that [he]had to intentionally and knowingly violate the order. [Shivers] maintains the omission of the word `knowingly’ improperly prevented the jury from considering whether [he] `acted with full knowledge that his conduct would capture Perrette on video.’

People v. Shivers, supra (emphasis in the original).  The court did not agree, noting that

a violation of the restraining order could have occurred even if [Shivers] had not videoed Perrette. [He] could have been convicted based on coming within eight inches to one foot of her, or disturbing her peace by falsely shouting in the restaurant that he had `a restraining order against her.”’ Moreover, there was no requirement the People needed to show [he] knew his acts were unlawful. The requirement in Penal Code section 273.6, subdivision (a), that a defendant commit a `knowing violation of a protective order’ only refers to the requirement the defendant must know the order exists and be aware of what it states. (See People v. Saffell, 74 Cal.App.2d Supp. 967 (California Court of Appeals 1946).) Penal Code § 273.6 requires only general criminal intent (see People v. Greenfield, 134 Cal.App.3d Supp. 1 (California Court of Appeals 1982)), meaning a violation may be proved by showing [Shivers] knew of the contents of the order, and intended to do a proscribed act, such as harassing, disturbing the peace, or coming within 100 yards of Perrette.

The People and [Shivers] stipulated at trial the restraining order was in full force and effect on the night of the incident, and that [he] had knowledge of the existence of the order. The court therefore did not err in instructing the jury that one of the elements of the offense was that `the defendant knew of the court order,’ and that the People had to prove this element.

People v. Shivers, supra.    For these and other reasons, the court affirmed Shivers’ conviction for violating California Penal Code § 273.6(a). People v. Shivers, supra.   

It then took up Shivers’ challenge to his conviction under California Penal Code § 653.2, noting that he argued that there was

insufficient evidence presented to convict him of violating § 653.2. He argues there was no proof [his] tweets actually incited any third parties to commit unwanted physical contact, injury, or harassment of Perrette. He also argues there was no evidence the tweets actually produced any unwanted physical contact, injury, or harassment by third parties. We review issues concerning statutory interpretation de novo. (People v. Lofchie, 229 Cal.App.4th 240 (California Court of Appeals 2014).)

People v. Shivers, supra (emphasis in the original).  The court went on to explain that

Penal Code § 653.2, subdivision (a), provides a person is guilty of a misdemeanor if he, `with intent to place another person in reasonable fear for his or her safety, or the safety of the other person's immediate family, by means of an electronic communication device, and without consent of the other person, and for the purpose of imminently causing that other person unwanted physical contact, injury, or harassment, by a third party, electronically distributes, publishes, e-mails, hyperlinks, or makes available for downloading, personal identifying information, including, but not limited to, a digital image of another person, or an electronic message of a harassing nature about another person, which would be likely to incite or produce that unlawful action.’

The statute defines `harassment’ as `a knowing and willful course of conduct directed at a specific person that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing the person and that serves no legitimate purpose.’ (California Penal Code § 653.2(c)(1).) `Of a harassing nature” is defined as `of a nature that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing of the person and that serves no legitimate purpose.’ (California Penal Code § 653.2(c)(2).)

People v. Shivers, supra.   

The Court of Appeals went on to point out that California Penal Code § 653.2(a) says a

person is guilty if he or she electronically distributes a harassing message `which would  . . . likely . . . incite or produce’ the third party's action. [Shivers’] reading of the statute eliminates the modifier `likely,’ and would criminalize the proscribed acts only if a person's message `incite[d] or produce[d]’ unlawful action. `”[A] statute should not be given a construction that results in rendering one of its provisions nugatory. . . . If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.”’. . .  (People v. Hicks, 6 Cal.4th 7840  California Supreme Court 1993)) The plain meaning of the words used reveals no requirement that actual incitement or actual production of the enumerated unlawful effects be caused by a person's electronic distribution of a message. The only requirement is that a defendant's message is likely to incite or produce third party actions.

People v. Shivers, supra (emphasis in the original).

Shivers also claimed the evidence at trial “was insufficient because the prosecution did not prove [he] tweeted with the specific intent to incite or produce any unlawful action by third parties.” People v. Shivers, supra.  Again, the court did not agree, noting that the

circumstantial evidence was sufficient to permit a reasonable trier of fact to conclude defendant acted with intent to incite or produce unlawful action by a third party who read his messages. [Shivers] electronically distributed messages about Perrette using Twitter, which, as shown by the evidence at trial, is a public social networking website on the Internet where users can write and respond to short messages. Twitter constituted an `electronic communication device’ within the meaning of the prohibited communications statute. (See California Penal Code § 653.2(b)) [including Internet web pages and websites within the definition of `electronic communication device’].) The evidence showed a person's tweets posted on Twitter can be read by the public and spread to the websites of other Twitter users by being retweeted, so that a single tweet may be repeated and disseminated throughout numerous web pages accessible to the public.

People v. Shivers, supra. 

The court went on to point out that Shivers

posted messages on Twitter such that persons searching for Perrette's name could find his tweets. Also, by using a hashtag for the show (`# NCIS’) and the location (`# Cahuenga’), third parties searching on Twitter would also come across defendant's tweets. Several of the tweets were made in response to persons who had read defendant's tweets, and other tweets had been retweeted by third parties, indicating to defendant that third parties were accessing the information he posted and his tweets were being disseminated.

The tweets leading up to the ones posted on July 4 and July 8, 2012, falsely indicated that [he] had a restraining order against Perrette and that she was stalking him and making death threats against him. The July 4 and July 8, 2012 tweets referenced the area of Cahuenga where Perrette lived. These tweets also referred to Perrette as defendant's `stalker,’ and requested that readers `call LAPD!!!’ and `report her to LAPD immediately!’ if they saw her following him in the area.

People v. Shivers, supra. 

The Court of Appeals therefore concluded that

[i]t can be inferred [Shivers] knew that persons who encountered Perrette after reading his tweets could have been motivated to report her to the police for what they believed was her stalking him, or to otherwise harass her. (See California Penal Code § 653.2(c)(1) [defining `harassment’ as `conduct directed at a specific person that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing the person’].) Given the nature of Twitter and the provocative contents of [Shivers’] tweets, a reasonable trier of fact could conclude [he] posted his tweets with the specific intent to incite or produce unwanted physical contact, injury, or harassment at the hands of a third party.  

People v. Shivers, supra.  For these and other reasons, the Court of Appeals affirmed Shivers’ convictions. People v. Shivers, supra.