It was like something out of the movies, a horror flick as Judge Paul Richardson described it last week, during a Penal Code section 995 motion (to dismiss or reduce one or more counts of the complaint), where attorney Christopher Parkhurst attempted in vain to get Judge Richardson to reduce the felony stalking charge that his client, Duong Nguyen, faces.
Mr. Parkhurst argued that, while Mr. Nguyen’s conduct was sexually aggressive and he delivered texts and voicemails over time, they were sexual but not threatening.
However, Judge Richardson declined to reduce the charges, calling them “stuff of horror movies” and “chilling in the court’s view.” He agreed they did not rise to a direct threat, but he had concerns about the conduct nonetheless.
According to the testimony in the hearing, a Davis resident and college student received a note attached to her car with a cell number from someone who had been in her history class. While she initially exchanged texts, she later became uncomfortable after being unable to determine the identity of the texter.
She told the person, presumably Mr. Nguyen, to “stop contacting me,” but the texts continued occasionally until she blocked the number. She also received voicemails that were “very repetitive,” that would say, “I love you. I know you don’t want to hear from me. I know you don’t want to talk to me. I know I’m bugging you, or things like that.”
Later, in 2014, she began to receive calls and voicemails from a new number, from a person identified as “David Lee,” but the voicemails had a similar message, which she summarized as “I love you,” and “I wish I could take you to Valentine’s Day. I know you don’t want to go with me.”
The voicemails, she said, made her feel “disgusted. It was like my skin was crawling. It was very unwanted attention.” They became sexually aggressively, commenting on her breasts and stating, “I want to get you pregnant.”
Mr. Parkhurst argued that she testified, however, that the texts and messages were not threatening, “He would … he would not threaten me, that is fair to say. But he would say, you know, ‘I can see you right now,’ and things like that.”
Her father testified that, in April of 2015, Mr. Nguyen “came by the family’s home in Davis, rang the doorbell and told (the father) that he wanted to return some homework to his daughter.” The defendant again identified himself as “David Lee,” but the young woman was not home.
During the preliminary hearing, Davis Police Officer Alan Hatfield testified that he contacted the defendant in April following this visit, where the officer said that he made it “abundantly clear that (the defendant) was not to contact her in any way, by any form, whether it be phone call, text anything, any computer messages, having other people contact her. I repeated it numerous times and made it very clear to him.”
Despite this conduct, Mr. Parkhurst argued that this evidence is insufficient to justify a holding order for felony stalking, which requires proof that the defendant not only “willfully and maliciously harassed or willfully, maliciously and repeatedly followed another person” but also “made a credible threat…”
Mr. Parkhurst argued that the young woman testified “that she did not receive any threats” but “that his repeated contacts made her feel very uncomfortable and scared.” He added that the father “did not testify that he personally felt afraid…”
Mr. Parkhurst argued that the communication between the two was “one-sided,” and said, “While socially awkward and discomforting, what is reasonably lacking in the evidence here — based on the testimony of (the alleged victim) — is a credible threat.
Deputy DA David Robbins countered that, “based on the totality of the circumstances, there was an implied threat.” He argued there was a “pattern of conduct or a combination of verbal, written, or electronically communicated statements and 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.”
Robbins argued the following facts to support a credible threat:
(1) the victim received multiple texts over a three year period (2) the victim received many phone calls over a three year period (3) the Defendant used multiple numbers to achieve his goal of contacting the victim (4) the Defendant changed his phone number to contact the victim (5) the Defendant was told by the victim within the first month of the three year period that he should not contact her (6) the Defendant called from a blocked number (7) the messages eventually became sexual (8) the messages began to focus on her current physical appearance (9) some romantic messages were received around Valentine’s Day (10) the Defendant sent a message saying he wanted to get her pregnant even though they had never met and she told him she did not want to speak to him (11) the victim did not respond to the Defendant’s message for over two years (12) the Defendant contacted the victim using the fake name Carter Moss on Facebook (13) the Defendant used the fake name David Lee on Facebook (14) the Defendant concealed his identity the entire time he interacted with the victim (15) the Defendant gave a fake name at the victim’s house (16) the Defendant showed up at the victim’s house in Davis (17) the Defendant’s address was in Modesto (18) the Defendant stated he asked around to obtain the victim’s address (19) the Defendant was not in class with the victim at the time (20) the Defendant continued to contact the victim despite police contacting him and warning him that he would be prosecuted if contacted her again (20) the victim was uncomfortable at first with not being given the Defendant’s name (21) the victim was scared for her family when he showed up at her house (22) the victim was scared that she would be raped by the Defendant after receiving multiple sexual messages from this stranger.
It was clear from the start that Judge Richardson was skeptical of the claims of no threat, noting in addition to the horror flick comment that this appeared to be “somebody who stepped way over bounds.” The defendant showed up at the young woman’s parents’ house and made at least 22 different contacts.
Even after she blocked his number, he found ways around to get the messages through, and the pattern shows an escalation to sexually graphic messages.
Judge Richardson asked, is there a direct threat? No. But what we have may be more chilling, with tracking, following and finding out her home address. He said this was sufficient to warrant a finding of felony stalking and set the trial for September.
When Mr. Parkhurst suggested that this case might resolve, Mr. Robbins countered that the People see this as felony conduct and would not be amenable to reducing the charge to a misdemeanor.
In Mr. Robbins’ closing argument in his opposition to the motion, he wrote, “Given that the Victim had never met the Defendant, requested that he stop calling her within a month, that the Defendant called and texted her consistently for over 3 years, made romantic comments to her despite being strangers, made sexually aggressive comments towards the Victim, commented on her current Facebook posts, asked around for her address, showed up at her house in the late evening looking for her, and then continued to contact her despite police intervention there.is sufficient probable to believe that there was an implied threat of harm.”
—David M. Greenwald reporting
you need to take down the name of the father
Thanks
This is a rare case where I agree with the DA. We passed stalking laws for precisely this kind of situation because often existing laws and the need for explicit threats were not sufficient to protect people from stalkers. This guy’s behavior is appalling and scary and waiting for him to threaten or physically harm this girl is irresponsible. I agree with teh DA, this is felony not misdemeanor conduct.
I am having a very difficult time with this one. This sounds more like a mental health issue ( maybe an obsessive compulsive variant – speaking as a non psychologist of course) than it does criminal intent. If this were to be determined a felony by a jury, is there a non prison option ? Is there a mental health option if it is determined a misdemeanor ? I certainly cannot see how imprisoning this individual is going to do any more good than provide temporary peace of mind for this one girl. It will not serve to protect her after he gets out if he is untreated and will not prevent him from latching on to someone else if that is his tendency.
A first time offender probably isn’t getting prison
The defense used the time-honored tactic of isolate and deliberately confuse in an attempt to mitigate the actions of the defendant. If it’s deceitful–and it is–it’s still OK and good lawyering when you represent a criminal defendant.
Unfortunately for Mr. Parkhurst, his argument was in front of veteran court attorney, who’s seen and possibly practiced the same legal tactic himself on numerous occasions. As Parkhurst’s arguments were being uttered, Judge Richardson’s lips were probably moving in the same cadence.
Reminder: American courtrooms are more theater than arbitrators of justice. Here again, the stage was set and we endure the remainder of the one-act play with everybody knowing the ending.
The DDA also performed his same scripted role in cases like these. Robbins cited the many incidents over the course of a long time span to demonstrate what “stalking” really is and how it’s defined in the actual felony charge filed. The defense ignored that argument because he had to, instead focusing on “threat” (which is the key element in the 415 PC misdemeanor statute). In the end, justice did prevail and it wasn’t even a close fight.
The defense attorney can say he did his best, and he did. Parkhurst ably represented his client in a lost cause. But the real tragedy here “in the name of justice” was that a court day was expended, and further delayed other indigent criminal defendants sitting in jail and waiting for an open court date. Defendants with far more meritorious cases are incarcerated for another day (week, month) because the beleaguered public defender cannot ethically prioritize the cases worthy of his/her attention to the exclusion of the factually guilty.