Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. LA054398, Kathryne A. Stoltz, Judge.
Thomas Owen, 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, Senior Assistant Attorney General, James William Bilderback II and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Wesley Kane Campbell appeals from the judgment entered following his conviction by a jury of felony vandalism, with special findings by the court in a bifurcated proceeding that he had served four separate prison terms for felonies. Campbell was sentenced to state prison and ordered to pay restitution to his victim. He contends the jury should have been instructed sua sponte on vehicle tampering, a misdemeanor, as a lesser included offense of vandalism and the restitution order is not supported by substantial evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Campbell was charged by amended information with making a criminal threat (Pen. Code, § 422) (count 1), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count 2), vandalism with more than $400 in damage (Pen Code, § 594, subds. (a), (b)(1)) (count 3) and petty theft (Pen. Code, § 484) (count 4). It was specially alleged as to all counts Campbell had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and Penal Code section 667, subdivision (a)(1), and had served five separate prison terms for felonies (Pen. Code, § 667.5, subd. (b)).
2. Summary of Trial Evidence
In October 2006 Campbell moved in with Christian Kepler and agreed to pay him rent. On the morning of December 23, 2006, as Kepler was preparing to leave his bedroom, Campbell blocked the doorway. Campbell was angry with Kepler for insisting Campbell still owed him $500 in unpaid rent. Kepler largely ignored Campbell’s extended rant about the rent; and, after two hours, Campbell announced he was going to leave. Kepler replied he did not want Campbell in the house and told him not to come back. Campbell left the house; Kepler shut and locked the front door.
Moments later Kepler heard a noise. Looking through a kitchen window, Kepler saw Campbell moving around on the driveway near Kepler’s car, screaming he was going to kill Kepler. Kepler entered the garage from the kitchen and opened the garage door.
Campbell ran into the garage and picked up an ax. He began circling Kepler’s car while striking it with the ax. Campbell then told Kepler to notify the police because Campbell was going to kill him. As Kepler watched, Campbell continued to yell and to swing the ax against the car. After several more minutes, Campbell raised the ax and approached Kepler. Kepler ran back into the kitchen and struggled to close the door to the garage as Campbell banged the ax against it.
After securing the door, Kepler telephoned police. Campbell stopped banging on the door to the kitchen, broke a front window (presumably with the ax) and entered the house. Kepler retrieved the ax from the floor and ordered Campbell to leave. Using profanity, Campbell said he would return to kill Kepler; he then left the house through the broken window. Police arrived and arrested Campbell about 100 yards from the house.
The jury received transcripts and heard the tape of the emergency police call.
Kepler testified his car was extensively damaged. Photographs introduced into evidence, described by Kepler, depicted the front bumper, hood, driver’s side quarter panel, driver’s side door, driver’s side window, driver’s side back quarter panel, back bumper and antenna as being either dented or broken into pieces. Kepler testified he obtained a body shop estimate of $8,000 to repair his car, a 1991 BMW, with an additional cost of approximately $270 to replace the car’s damaged antenna.
Kepler later informed police his portable audiofile device was missing. Officers found the missing iPod in Campbell’s possession following his arrest.
During cross-examination of Kepler, Campbell’s counsel elicited conflicting testimony. Kepler admitted he had difficulty recalling the incident, had previously received gifts and money from Campbell and had used narcotics. Campbell neither testified nor presented other evidence in his defense.
In his closing argument Campell’s counsel argued reasonable doubt existed as to Campbell’s guilt, pointing to the inconsistencies in Kepler’s testimony, his admitted drug use and his greed as reasons to question his credibility. Counsel maintained Kepler had fabricated the entire incident.
3. Verdict and Sentencing
The jury convicted Campbell of felony vandalism (count 3) and acquitted him of aggravated assault (count 2) and petty theft (count 4).
The criminal threat count was dismissed before trial under Penal Code section 995.
Following the jury verdict, Campbell waived his jury trial rights and admitted four of the special prior prison term allegations. On the People’s motion the remaining special allegations were stricken. Campbell was sentenced to an aggregate state prison term of six years, consisting of the two-year middle term for felony vandalism and four one-year prior-prison-term enhancements. The trial court ordered Campbell to pay restitution of $8,174 for the damage to Kepler’s car.
DISCUSSION
“A trial court has a sua sponte obligation to instruct the jury on any uncharged offense that is lesser than, and included in, a greater charged offense, but only if there is substantial evidence supporting a jury determination that the defendant was in fact guilty only of the lesser offense. [Citations.] An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test). [Citations.] [¶] Under the elements test, a court determines whether, as a matter of law, the statutory definition of the greater offense necessarily includes the lesser offense.... [¶] Under the accusatory pleading test, a court reviews the accusatory pleading to determine whether the facts actually alleged include all of the elements of the uncharged lesser offense; if it does, then the latter is necessarily included in the former.” (People v. Parson (2008) 44 Cal.4th 332, 348-349.)
Prompted by an inquiry from the trial court, Campbell’s counsel requested an instruction on “the lesser charge” for felony vandalism. The trial court instructed the jury on misdemeanor vandalism (damage caused less than $400), but not on vehicle tampering, also a misdemeanor, as a lesser included offense of felony vandalism. Campbell now contends under either the elements test or the accusatory pleading test vehicle tampering is a lesser included offense of vandalism and argues it was prejudicial error for the court not to instruct sua sponte on vehicle tampering.
Felony vandalism is committed by a person who maliciously defaces, damages or destroys the property of another if the amount of damages caused is $400 or more. (Pen. Code, § 594, subds. (a), (b)(1).) The malice required to commit vandalism “imports a wish to vex, annoy, or injure another person, or an intent to do a wrongful act.” (Pen. Code, § 7, subd. (4); Judicial Council of Cal. Crim. Jury Instns. (2008) CALCRIM No. 2900.)
Vehicle tampering is the act of “wilfully injur[ing] or tamper[ing] with any vehicle or the contents thereof or break[ing] or remov[ing] any part of a vehicle without the consent of the owner.” (Veh. Code, § 10852.) “Willfully” as applied to vehicle tampering “implies simply a purpose or willingness to commit the act.... It does not require any intent to violate law, or to injure another, or to acquire any advantage.” (Pen. Code, § 7, subd. (1); CALCRIM No. 1821.)
Under the accusatory pleadings test, but not the elements test, vehicle tampering is a lesser included offense of felony vandalism in this case, where the damaged property is a vehicle: A complaint or information that, as here, charges a defendant with vandalism by maliciously damaging a vehicle within the meaning of Penal Code section 594, subdivision (a), necessarily charges the defendant with willfully tampering with or breaking the vehicle in violation of Vehicle Code section 10852.
The amended information charged Campbell in count 3 with felony vandalism in violation of Penal Code section 594, subdivision (a), in that “[o]n or about December 23, 2006,” he “did unlawfully and maliciously deface with graffiti and other inscribed material and otherwise damage and destroy real and personal property, to wit, 1991 BMW, not his or her own, belonging to CHRISTIAN KEPLER, the amount of said damage being over $400.00.”
Although vehicle tampering is a lesser included offense of vandalism of a vehicle, the trial court was under no sua sponte obligation to instruct on the lesser offense if, in any event, “there was no substantial evidence supporting a jury determination that the defendant was guilty only of that offense.” (People v. Parson, supra, 44 Cal.4th at p. 350; see People v. Moon (2005) 37 Cal.4th 1, 25-26.)
From the evidence in this case, the question for the jury to resolve was not whether Campbell acted maliciously or willfully in damaging Kepler’s car, but whether or not he attacked Kepler’s car at all. If the jury believed Kepler’s testimony, then it properly (and necessarily) found Campbell had acted maliciously—taking an ax to Kepler’s car in anger—based on overwhelming evidence: Campbell was furious at Kepler for demanding payment of the overdue rent. Kepler exacerbated Campbell’s anger by ignoring Campell’s complaints and by announcing that Campbell could no longer live with him. After Campbell left the house, he remained on the property, creating a disturbance near Kepler’s car. When Kepler opened the garage door, Campbell retrieved the ax from the garage and vented his rage against Kepler by attacking the car.
The defense was not that Campbell had acted only “wilfully” not “maliciously,” but that he had never acted as described by Kepler at all. If the jury believed the defense theory, then Kepler lied about the entire incident; Campbell never took an ax to or otherwise damaged Kepler’s car. To be sure, the jury found Campbell not guilty on the remaining two counts, apparently not fully crediting Kepler’s testimony. But the court instructed the jurors they “may believe all, part, or none of any witness’s testimony.” (CALCRIM No. 105.) Apparently the jury accepted that part of Kepler’s testimony that was corroborated by photographs—the attack on his car—but not the balance of his description of Campbell’s assault and petty theft. As to the vandalism charge, the evidence showed Campbell, if guilty at all, was guilty of the greater offense. Accordingly, there was no requirement to instruct sua sponte on the lesser included offense.
2. The Restitution Order Was Supported by a Rational and Factual Basis
At sentencing the prosecutor told the trial court Kepler was requesting $10,825 in restitution plus interest. Campbell’s counsel argued Kepler was improperly inflating his restitution request by including damage to the house and pre-existing damage to his 1991 BMW. The court concluded the restitution order should compensate Kepler solely for the damage to his car as based on the body shop estimate of $8,174 to which Kepler referred while testifying. The court awarded Kepler $8,174 in restitution.
The body shop estimate was excluded from evidence as inadmissible hearsay.
Article I, section 28, subdivision (b), of the California Constitution provides, “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes for losses they suffer.” Penal Code section 1202.4, subdivision (a)(1), provides, “It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” Such restitution “shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct....” The amount of loss is to be determined by the trial court “based on the amount of loss claimed by the victim or victims or any other showing to the court.” (Pen. Code, § 1202.4, subd. (f).)
The statutory restitution provisions are to be construed broadly to achieve the goals of public safety, victim compensation and offender rehabilitation. (People v. Carbajal (1995) 10 Cal.4th 1114, 1126; People v. Mearns (2002) 97 Cal.App.4th 493, 500-501.) We review restitution orders for abuse of discretion. (Mearns, at p. 498.) If there is a “‘factual and rational basis’” for the amount ordered, no abuse of discretion is present. (Mearns, at p. 499; Carbajal, at p. 1126.)
Campbell contends the trial court abused its discretion in making the restitution order because it relied on Kepler’s body shop estimate without assessing the $8,174 estimate for accuracy, arguing the record shows the car was a 16-year-old BMW, Kepler was already working on the car when it was damaged, the body shop estimate was to restore the entire car, not just the damage caused by Campbell, and the probation officer’s report estimated it would cost $3,000 to repair the car.
In the restitution context a victim’s statement of the value of his or her loss constitutes prima facie evidence of the value of the loss. (In re S.S. (1995) 37 Cal.App.4th 543, 547.) Additionally, consistent with the body shop estimate, Kepler admitted on cross-examination he had been working on his car earlier in December, but he denied the body shop estimate included any damage incurred before December 23, 2006. Kepler further testified, and the photographs reflected, extensive damage to the front, back and driver’s side portions of the car, as well as to the antenna. Campbell presented no evidence to rebut Kepler’s evidence. The probation officer’s report upon which Campbell relies on appeal did not provide an explanation of how the $3,000 estimate was calculated. The trial court was well within its discretion to believe Kepler’s testimony and to adopt his valuation of the loss. (See People v. Hove (1999) 76 Cal.App.4th 1266, 1275 [trial court’s restitution order will be upheld on appeal unless it is “arbitrary, capricious, or beyond the bounds of reason under all the circumstances”].)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.