P. v.
Fisher
Filed 5/1/13
P. v. Fisher CA3
NOT TO
BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Lassen)
----
THE PEOPLE,
Plaintiff
and Respondent,
v.
TIMOTHY FISHER,
Defendant
and Appellant.
C068360
(Super. Ct. No. CR028039)
Defendant Timothy Fisher appeals his
conviction for felony vandalism and the state prison sentence imposed for that
conviction. He contends the trial court
did not preserve a record adequate for appellate review, in that the record
does not contain the written jury instructions.
Next, he contends the trial court committed reversible error in failing
to instruct the jury that felony vandalism requires damage of over $400. Even assuming the court erred in the
instructions given, on the evidentiary record before us, we find the
705]. With regard to his sentence,
defendant contends, under the principles of equal protection, the October 1,
2011,
amendments to Penal Code section 1170 must be given retroactive effect, and
accordingly he must be sentenced to county jail rather than state prison.
contention as well.
BACKGROUND
Defendant was charged with felony
vandalism. (§ 594, subd. (a).) The complaint specifically alleged defendant
had defaced Alana Davey’s vehicle, “the amount of said damage being over
$400.â€
In August 2010, defendant was
standing next to a 2007 Honda Civic, scratching paint off the trunk with
sandpaper. He whistled to get Lassen
County Sheriff’s Deputy Matthew MacFarland’s attention. MacFarland came over, examined the car and
noted the damage to the trunk lid.
Defendant acknowledged the car was not his and MacFarland arrested him
for vandalism.
Alana Davey, the owner of the car,
took it to Bear’s Repair for an estimate and repairs. Michael Moser, the owner of Bear’s Repair,
estimated the repairs would cost $810.53.
The insurance company adjuster estimated the necessary repairs at
$451.81. This estimate did not include
all of the repairs Moser suggested.
Moser made the $810.53 in repairs to the car and the insurance company
covered $451.81 of the repairs.
At the time of the offense,
defendant was new to the area and had no place to stay. He intentionally sanded the paint off the car
and summoned the police, as a “self-imposed arrest.†He hoped by going to jail, he would have
stable housing and be placed in a work release program. This incident was the latest in “an extended
series of self-imposed arrests†committed by defendant. Defendant disputed the cost to repair the
car, stating, “I specifically dispute $810 damage, just making it a
felony. I think that’s been exaggerated
a little bit here.â€
On the issue of the amount of damage
to the car, in closing argument, the People argued, “What we have is the elements
of the crime. The defendant maliciously
destroyed property that did not belong to him.
The last element is the damage must be over $400 to be a felony. Without a doubt it’s at least $451. We heard testimony the damage was $851
. . . . He maliciously took the sandpaper and scratched the back
end of [the victim]’s vehicle and it cost her over $400 to have it fixed.†Defense counsel argued only that defendant
had “a disagreement with the amount of damages.†He also argued defendant had vandalized the
car out of “necessity.†In rebuttal, the
People noted defendant had not produced any evidence to dispute the amount of
damage to the vehicle.
The court instructed the jury on the
elements of vandalism as follows: “In
order to prove the defendant is guilty of this crime the People must prove the
defendant maliciously damaged the personal property of another. Two, the defendant did not own the
property. Someone acts maliciously when
someone does wrongful acts he or she knew were unlawful to annoy someone else
with graffiti or otherwise disfigure or mark it. If you find the defendant guilty of vandalism
you must then decide the People have proved the defendant caused damage. The People have the burden of proof beyond a
reasonable doubt.†The jury was not
orally instructed with CALCRIM No. 2901 that the amount of damage to the
vehicle had to be greater than $400.
The court also stated it would
provide the jury with written instructions.
The jury instruction packet was not included in the record on
appeal. There is no indication in the
record what written instructions were given to the jury. Based on the stipulated settled statement,
neither the attorneys nor the judge has an independent recollection of what
specific written jury instructions were provided to the jury.
The jury found defendant guilty of
felony vandalism. Defendant was
sentenced to the midterm of two years, and awarded 506 days presentence
DISCUSSION
Defendant’s initial contention is
that without copies of the written jury instructions, meaningful appellate
review is not possible. He argues we
must reverse, as it is impossible to assess the prejudice caused by the omitted
oral instructions. We disagree.
Under both the state and federal
law, a defendant is only entitled “to an appellate record ‘adequate to permit
[him or her] to argue’ the points raised in the appeal. [Citation.]
. . . The defendant has
the burden of showing the record is inadequate to permit meaningful appellate
review. [Citation.]†(People v. Harris (2008) 43 Cal.4th
1269, 1280.)
On the record before us, we cannot
determine whether the jury was given the written CALCRIM No. 2901, specifically
instructing the amount of damage had to be greater than $400. However, the record does not preclude
defendant from arguing instructional error or prevent us from reviewing the
matter for prejudicial error. For
purposes of this review, we will assume the written CALCRIM No. 2901 was not
given to the jury, and review the error accordingly.
Defendant argues if the record is
sufficient for meaningful review, the instructional error was a structural
defect that is reversible per se. We
disagree.
When an instructional error
improperly omits an element of an offense, it does not generally constitute a
structural defect in the trial mechanism that automatically requires
reversal. Rather, as long as the error
did not wholly withdraw substantially all of the elements from the jury’s
consideration or so vitiate the jury’s findings so as to deny defendant a jury
trial, the error is subject to harmless error review under Chapman, supra, 386 U.S. at p. 24. (People
v. Mil (2012) 53 Cal.4th 400, 415.)
Under the harmless error standard,
“[a] trial court’s failure to instruct the jury on an element of the crime
requires reversal when ‘the defendant contested the omitted element
support a contrary finding.’
[Citation.]†(
760-761, italics added.) “Our task,
then, is to determine ‘whether the record contains evidence that could
rationally lead to a contrary finding with respect to the omitted element.’ [Citations.]â€
(People v. Mil,
Here, defendant claims he contested
the element that the amount of damage must be over $400 by virtue of his
testimony, “I specifically dispute $810 damage, just making it a felony. I think that’s been exaggerated a little bit here.†Giving this testimony the most liberal
possible construction, defendant’s statement contests whether the amount of
damage was $810. Nothing in this
testimony contests that the damage was over $400. Moreover, there is no evidence in this record
from which the jury could have rationally found the damage was less than
$400. The mechanic testified the damage
was $810. The insurance company adjuster
estimated the damage at $451, and the insurance company paid that amount on the
claim. Nothing in defendant’s testimony,
or any other evidence, suggests there was not at least $451 of damage to the
vehicle. As such, there was no evidence
that could rationally lead the jury to a contrary finding. Accordingly, the instructional error was
harmless.
Defendant argues the prospective
application of section 1170, subdivision (h)(6), violates equal protection
principles. We rejected this equal protection claim in
“Since the prospective application of the Realignment Act does not
affect a fundamental right, is not based on a suspect classification, and
advances a rational state interest, it does not violate defendant’s right to
equal protection of the law.†(
DISPOSITION
The judgment is affirmed.
HOCH , J.
We concur:
HULL , Acting P. J.
MAURO , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.
