P. v. Beltran

Filed 2/14/08 P. v. Beltran CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert J. Higa, Judge. Affirmed.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Michael A. Beltran appeals from a judgment entered after a jury convicted him of count 1, stalking (Pen. Code, 646.9, subd. (a));[1]count 4, vandalism ( 594, subd. (a)); count 5, making a criminal threat ( 422); and a lesser included offense of count 3[2]attempted arson of property ( 455).

The trial court sentenced appellant to a total of four years in state prison consisting of the mid-term of two years for count 1 as the base count; consecutive eight months (one-third of the mid-term of 24 months) for count 3; consecutive eight months (one-third of the mid-term of 24 months) for count 4; and consecutive eight months (one-third of the mid-term of 24 months) for count 5.

CONTENTIONS

Appellant contends that: (1) the trial court erred by failing to instruct the jury that it must unanimously agree appellant committed the same acts in order to find him guilty of count 4, vandalism; or, alternatively (2) count 4 was part of the same factual basis as count 3 and punishment should have been stayed pursuant to section 654.

FACTS AND PROCEDURAL HISTORY

Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.

Appellant and Sara Aziz began dating in October 2005, when she was a high school senior. They dated off and on. Sara lived with her mother, father, and two brothers. Appellant persisted in visiting Sara at her high school campus and following her around, even though he was not a student there and vice principal Karen Dabney had admonished Sara to tell him that he was not allowed on campus. On January 20, 2006, Dabney conducted a citizens arrest of appellant for trespassing after she warned him to leave the school grounds. Dabney was concerned for Saras safety because she had previously noticed a human bite mark on her face. Sara transferred to another high school to avoid appellant. At Saras next high school, vice principal Marian Feiger conducted a citizens arrest of appellant on March 2, 2006, when he refused to leave the campus. Sara obtained a restraining order against appellant. In late March 2006, Sara left high school for safety reasons.

In the early morning of March 23, 2006, appellant entered Saras bedroom through her window. He unscrewed the screen, she opened the window, and he climbed in. At 11:00 p.m. that evening, Downey Police Officer Stanley Huang interviewed Sara who told him that appellant broke into her bedroom. He noticed that there was a small hole or crack in the bottom corner of the window and a hole in the frame as well. Sara told him that after appellant left, he called her to ask how she would be able to drive without her drivers license. Then she noticed that her drivers license and ATM card were missing from her purse. Officer Huang viewed video footage from four surveillance cameras that Saras family had installed around their house. Sara identified the person leaving the house and running across a driveway as appellant.

On March 24, 2006, Sara received a telephone call from a male who told her to check her car. Upon inspection, Sara found that the right front window of her car was shattered. Downey Police Officer Jos Bustos concluded that the window had been smashed by a spark plug. Video footage showed a man running toward the car, throwing something, and running away. The window was repaired at a cost of $380.

On March 25, 2006, at 3:00 a.m., appellant called Sara and told her to check her car. Sara also received a text message she believed was from appellant that said, Damn, thats fucked up. Whoever did that to your car, you must really -- you must have really did something really bad to that person. Sara called the police and they found that someone had smashed the rear window with a brick, which was inside the car. The gas cap was opened, and a partially burned piece of cloth was sticking out. The car was scorched in a four-inch diameter near the gas cap. Video footage showed a man putting a piece of cloth in the gas tank and attempting to light it on fire at 1:30 a.m. Fifteen minutes later the man attempted to light it again, then five minutes later threw something at the car. The window cost $480 to repair.

Before midnight on May 20, 2006, Saras mother, Bernadette, got a call from appellant saying that he had a gun, that he was waiting outside, and that he was going to do Sara in. Bernadette summoned the police. Video footage showed a man in a hooded jacket walking around the house for several hours.

On May 21, 2006, appellant broke Saras bedroom window and asked her to come outside to talk to him. Sara refused, saying he was on drugs. One of Saras brothers called the police.

On May 22, 2006, at 7:30 a.m., appellant called Bernadette, said that he was sorry about what had happened, and told her that she was being held hostage. The video cameras showed that appellant was at the home from 8:40 a.m., intermittently, until 5:00 p.m. At 4:45 p.m. that day, Downey Police Officer William Brown went to the house and saw that two front tires on one of the familys cars had been slashed; one of Saras bedroom windows was shattered; and there was a gardening tool outside the broken window. In response to Officer Browns radio broadcast describing appellant, Downey Police Officer Carlos Bejines apprehended appellant. Officer Bejines found a small kitchen knife on the street next to a white T-shirt appellant had been carrying when the officer first saw him.

DISCUSSION

I. Whether the trial court erred by failing to instruct the jury that it must unanimously agree appellant committed the same acts of vandalism

Appellant contends that the trial court had a duty to sua sponte instruct the jury with CALJIC No. 17.01[3]that it must unanimously agree appellant committed the same acts in order to find him guilty of vandalism because the evidence suggested multiple discrete acts of vandalism on multiple dates and because the People also referred to appellants other acts of breaking Saras bedroom window, attempting to burn the car, and slashing the tires on the car.

In a criminal case, a jury verdict must be unanimous and the jury must agree unanimously that the defendant is guilty of a specific crime. (People v.Russo (2001) 25 Cal.4th 1124, 1132.) Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] (Ibid.) But, [t]he unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The continuous conduct rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.] (People v.Stankewitz (1990) 51 Cal.3d 72, 100.) Similarly, when a prosecutor elects to rely on multiple acts in a continuous course of conduct as one crime, no unanimity instruction is required. (People v.Lopez (2005) 129 Cal.App.4th 1508, 1533-1534, citing People v. Dominick (1986) 182 Cal.App.3d 1174, 1208 [unanimity instruction not required where murder involved one or both defendants striking victim with pole, one defendant snapping his head around, and both defendants pushing him over a cliff in a car]; People v. Haynes (1998) 61 Cal.App.4th 1282, 1296 [unanimity instruction not required where two encounters minutes apart amounted to one robbery].)

Here, the People elected to rely on two acts of vandalism: the breaking of Saras car front windows with the spark plug on March 24, 2006, and the March 25, 2006, breaking of the rear window with the brick. The information charged appellant with vandalism causing over $400 worth of damage for damaging Saras automobile pursuant to section 594, subdivision (a). In closing argument, the People stated: Count 4, as I told you earlier, there are two dates, March 24th and March 25th. Later in argument, the People reminded the jury that Count 4, vandalism, [was] for breaking the front passenger side window and the rear window. The jury was instructed that appellant was charged with felony vandalism for causing personal property damage worth at least $400. And, the jury signed a verdict form finding appellant guilty of vandalism causing over $400 damage of Saras automobile.

The unanimity instruction was not required because the events of March 24, 2006, around lunchtime, and March 25, 2006 at 3:00 a.m., were closely connected as to form one transaction. On both occasions, appellant called Sara to tell her to check her car; each time, she found that windows had been broken, and each time the surveillance cameras showed a hooded man who she believed was appellant damaging the car. Moreover, appellant used the same defense for each transaction: that he did not commit the crimes. Finally, there was no evidentiary basis for the jury to conclude that appellant committed one act of vandalism but not the other.

Nor are we persuaded otherwise by appellants contention that the People argued that appellant committed vandalism by slashing Saras tires and breaking her window. Taken in context, the People were referring to those incidents as examples of appellants attempt to control Sara, and did not mention those incidents as the basis for the vandalism charges.

In any event, any error in failing to give the unanimity instruction was harmless beyond a reasonable doubt. (People v.Brown (1996) 42 Cal.App.4th 1493, 1501.) Sara identified appellant as the vandal. She told her brothers, mother, and the police that appellant had called her, telling her to check her car, after the incidents occurred. Moreover, the jury was instructed with CALJIC No. 14.95 which advised the jury that the vandalism caused damage in the amount of $400 or more. (People v. Yeoman (2003) 31 Cal.4th 93, 139 [jury presumed to have understood and followed instructions].) Because the March 24, 2006 incident caused only $380 in damages, the jury must at least have unanimously found that appellant committed the March 25, 2006 incident, which caused $480 in damages in order to convict him of the charged offense.

The trial court did not err in failing to instruct on CALJIC No. 17.01. Even if it did, the error was harmless beyond a reasonable doubt.

II. Whether the trial court should have stayed the sentence for count 4 pursuant to section 654

Appellant contends that if we conclude that the acts of vandalism were not discrete acts, but one continuous course of conduct, then the attempted arson conduct in count 3 and the vandalism of count 4 arose from a single act or course of conduct, and punishment as to count 4 should have been stayed pursuant to section 654.

Section 654 provides that [a]n act or omission which is made punishable in different ways by different provisions of this code shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. ( 654, subd. (a).)

The protection of section 654 has been extended to cases where a single act or omission has occurred, or where there are several offenses committed during a course of conduct deemed to be indivisible in time. (People v. Le (2006) 136 Cal.App.4th 925, 931-932.) It is defendants intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] (People v.Harrison (1989) 48 Cal.3d 321, 335.) The defendant may be found to have harbored a single intent if the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, resultingin the defendant being punished only once. (Ibid.) If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] (Ibid.) Whether the facts reveal a single objective is a factual matter; the meaning of section 654 is a legal matter. (People v. Guzman (1996) 45 Cal.App.4th 1023, 1028.) A trial courts implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. [Citation.] (People v.Blake (1998) 68 Cal.App.4th 509, 512.)

If the offenses were independent of and not merely incidental to each other, the defendant may be punished separately even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v.Green (1996) 50 Cal.App.4th 1076, 1084-1085.)

Appellant urges that the vandalism in the form of the breaking of the rear window, and the attempted arson, arose from the same course of conduct. Attempted arson is the willful and malicious attempt to burn property, with the specific intent to burn property. ( 455.) The evidence shows that appellant stuffed a rag into Saras gas tank, then tried to light it twice, 15 minutes apart. Thus, he harbored the specific intent to burn Saras property. Vandalism is the malicious damage to property over $400. ( 594, subd. (a).) When his attempt to burn the car failed, appellant broke the rear window with a brick a few minutes later. His intent in throwing the brick was to damage the car, distinguishable from his specific intent to burn the car. We do not agree with appellant that having concluded that appellant engaged in continuous conduct in vandalizing the car, we must find that the arson attempt was part of the same course of conduct.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

CHAVEZ

We concur:

________________________, P. J.

BOREN

_______________________, J.

ASHMANN-GERST

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Count 3 was charged as arson of a structure ( 451, subd. (d)).

[3] The defendant is accused of having committed the crime of [in Count ___]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count ___] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the [acts] [or] [omission]. However, in order to return a verdict of guilty [to Count ___], all jurors must agree that he committed the same [act] [or] [omissions] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict. (CALJIC No. 17.01.)