P. v. Joyce

Filed 5/28/10 P. v. Joyce 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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A jury acquitted defendant Michael John Joyce of the fraudulent use of a contractors license number and found him guilty of vandalism that caused more than $400 in damages. The court suspended imposition of sentence and placed him on probation.

On appeal, defendant argues the trial court erred when it denied his motion for acquittal (Pen. Code,  1118.1) of felony vandalism at the close of the prosecutions case-in-chief, in which he had cited the absence of explicit proof of damages in excess of $400. We shall affirm the judgment.

FACTS

The victim contracted with defendants brother to paint the body and trim of her house in white and green (respectively) for $2,650, with defendant first repairing quite a bit of dry rot as part of the prep work. The men agreed to paint a new fence as well for nothing. An investigator for the contractor licensing board testified that this was a reasonable price for both the prep work and painting.

Defendant and his brother took three days to wash, scrape, sand, and caulk the walls before defendant began repairing the dry rot on the fourth day. On the fourth and fifth days, they began priming and painting the house. On the following Monday, they had completed the painting of the body of the house.

At this point, the victim decided she was dissatisfied with the quality of the work. She thought that the duo had inadequately repaired the dry rot or cleaned away spider webs, and that the painting was sloppy. On Tuesday, she asked her daughter to go outside when they arrived and tell them they were fired before they started on the trim.

Defendant came to the front door, asking if there were some way in which they could address her criticisms. When the victim said she did not want to talk with him, defendant turned and slammed the door as he walked out. When the victims daughter went outside to see if the men had left, she caught defendant in the process of spraying black squiggles over the white paint on all sides of the house. He had also thrown his cup of coffee at the house. He had sprayed the paint on a sliding glass patio door as well; the victim testified that she could not remove the paint from the door and would need to replace it.

Defense counsel moved for acquittal (or to reduce the charge to a misdemeanor (Pen. Code,  17)) at the close of the prosecution case, asserting the evidence failed to establish damages in excess of $400. The prosecutor cited the $2,600 cost of the contract. Defense counsel argued that the contract price included a substantial amount of prep work that the contractors had completed as well. The court, however, ruled that there is a number in the record that would indicate an amount equal to the task of painting the house. It was the original contract price . . . . [] Clearly $2,600 . . . is significantly more than . . . $400 in this case for reduction to a misdemeanor. (According to the probation report, a volunteer had repainted the victims house for free, and therefore restitution would not be necessary.)

DISCUSSION

In our independent review of a motion to acquit, we examine the state of the record at the close of the prosecution case[1] and decide whether the evidence (and any reasonable inferences we can draw from it) would establish the elements of the offense. (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.) Defendant argues that the evidence does not expressly establish the cost of the damages to the victims home. He asserts that expert testimony on the subject was necessary, and the trial courts findings were simply speculation about the proper way to apportion the contractual costs.

While it is true that an owner cannot competently testify to an estimate of the cost of repairs (either on the part of the owner or from another) in lieu of testimony from an expert witness (Smith v. Hill (1965) 237 Cal.App.2d 374, 388 [citing LeBrun v. Richards (1930) 210 Cal. 308, 319-320]; McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 111, fn.26), this authority does not exclude any evidence other than expert testimony on the issue, such as the contract price in the present case. We disagree that some specialized knowledge in the form of expert testimony was needed to determine from this contractual price that the cost to the victim of repainting a black scrawl over all sides of a white-painted house (which common experience teaches would require primer or multiple coats of paint),[2] in aggregate with the unspecified cost to install a new sliding glass door, is more than $400.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

NICHOLSON , J.

RAYE , J.

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[1] Although we do not need to reach the issue, the People argue inappropriately that we may rely on evidence introduced after this point to find any error harmless. Their authority to this effect (People v. Crane (1917) 34 Cal.App. 760) has not been valid for almost half a century. (People v. Valerio (1970) 13 Cal.App.3d 912, 919-920 [defense evidence cannot forfeit claimed deficiency in case-in-chief; Crane based on statute no longer in effect after 1966]; In re Anthony J. (2004) 117 Cal.App.4th 718, 730-732 [applying same principle in delinquency proceedings].)

[2] Defendant suggests that it might have been possible simply to wash off the spray paint. However, we may infer from the victims testimony about the sliding door that the spray paint, which she could not remove from a glass surface, would be at least as resistant on a painted wood surface.