Opinion
NOT TO BE PUBLISHED
Appeal from judgments of the Superior Court of Riverside County Nos. INF059800, INF062462, Paul E. Zellerbach, Judge, and John J. Ryan (Retired Judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to Cal. Const., art. VI, § 6.)
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant Jose Rolando Segura Garcia appeals after jury verdicts against him in two different cases. In one case (No. INF059800), involving his wife, a jury convicted him of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); all further statutory references are to this code unless otherwise stated), two counts of child endangerment (§ 273a, subd. (a)), felony vandalism (§ 594), and battery on a spouse (§ 243, subd. (e)(1)). The court also found true defendant’s prior strike (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). In the second (No. INF062462), involving his girlfriend, defendant was convicted of stalking while a restraining order was in effect (§ 646.9, subd. (b)), theft of a vehicle (Veh. Code, § 10851, subd. (a)), receiving stolen property (§ 496d, subd. (a)), false imprisonment (§ 236), battery of a spouse (§ 273.5, subd. (a)), and five counts of violating a protective order (§ 273.6, subd. (a)). The jury found true defendant committed the first three offenses while released on bail (§ 12022.1) and the court found true defendant had a prior strike (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).
Defendant was sentenced in the two cases together. In the first case, one of the child endangerment convictions was selected as the principal term and defendant received the midterm of four years. The midterm was also imposed for the assault, second child endangerment, and vandalism counts, for three, four, and two years, respectively, to run concurrently. Each of these terms was doubled based on the prior strike. On the misdemeanor domestic battery count defendant was sentenced to six months and it merged with the remainder of the sentence. The sentence for these convictions was eight years.
As to the second case, on the stalking count, selected as the principal term, the court sentenced defendant to the midterm of three years. For the car theft he was sentenced to eight months, to run consecutively. The false imprisonment garnered a term of two years, to run concurrently; on the spousal battery he received a concurrent three-year term. All of those were doubled based on the prior strike. Defendant was sentenced to six months for each of the misdemeanor convictions for violating a protective order, which merged into the felony sentence. Two additional years were imposed for the bail finding. The sentence on the false imprisonment charge was stayed. The total sentence was nine years, four months, and the total sentence on both convictions was seventeen years, four months.
FACTS
1. Case Involving Wife – No. INF059800
Defendant and Cecena, parents of two children, separated after eight years of marriage. One day after the family had spent a few hours together defendant parked Cecena’s car at the end of his driveway; his car was parked in front of hers. In the children’s presence, defendant asked Cecena to reconcile and tried to hug and kiss her; she rebuffed him. The children were present for some or all of these events until defendant told them to get into Cecena’s car, which they did. Cecena then got in her car and defendant got into his. He backed into her car, accelerating, breaking the driver’s side mirror and “shatter[ing]” the window. In addition, the left driver and passenger doors were “caved in.” Pictures of the damage were introduced into evidence. The sheriff who came to the scene, who had been an automobile mechanic for five years, testified defendant had caused “major body damage.” There was also evidence the car sold for $1,800 or $2,000.
2. Case Involving Girlfriend – No. INF062462
About six months after Espinoza began dating defendant, he began abusing her. She did not leave him because she was pregnant with his child. In September 2007 she finally left with her children, initially seeking refuge in a women’s shelter. During this period she obtained a restraining order.
In May 2008, when Espinoza was giving defendant a ride, he saw from her cell phone she had called a male friend and became angry. She was afraid and turned around to take him home. He yelled and demanded she have the restraining order dissolved. Once they arrived, defendant got out of the car and hit the windshield with his fist, cracking it. He then punched Espinoza in the face, pushed himself into the driver’s seat on top of her, continuing to punch her and then bit her cheek hard enough to cause it to bleed and scar. He forced her into the passenger seat and drove away, despite Espinoza’s pleas to be let out. The drive lasted about three hours. Defendant made repeated harassing telephone calls to Espinoza on her home, cell, and work phones for the next month; several times he also parked outside the building where she worked.
On June 20 when defendant arrived at Espinoza’s workplace in a black VW Passat bearing paper license plates, she called the police. Defendant was gone by the time they arrived, but within about 10 minutes they saw an Hispanic man driving a car of the same description near Espinoza’s workplace. Although the police tried to pull the car over, the car sped up and stopped, the driver fleeing on foot; he was not caught. Two days earlier an acquaintance of Espinoza saw defendant driving a black VW Passat.
Jerry Antes owned a black VW Passat. On the morning of June 18, about 45 minutes after he had parked his car, bearing metal license plates, it was gone. He never gave anyone, including defendant, permission to drive his car. He reported the missing car to law enforcement. When sheriffs returned the car to him two days later it had paper license plates. When officers found the car, a search revealed a knife with a fingerprint that was later identified as defendant’s.
Espinoza’s father testified to another incident where defendant attempted to drag her from the house by her hair. Upon being forced to leave without her, defendant then began calling repeatedly. When Espinoza’s father finally answered, defendant threatened he would take Espinoza by force unless she spoke to him. When Espinoza’s father went outside he saw defendant brandishing a gun saying, “watch out.”
Several witnesses and defendant himself testified on his behalf. He denied threatening Espinoza or hitting or biting her; he also testified he did not take or drive the VW.
DISCUSSION
1. Felony Vandalism
Defendant asserts there was insufficient evidence of the value of the damage done to Cecena’s car to support the felony vandalism conviction. Under section 594, subdivision (b)(1) vandalism is a felony if the damage amount is to $400 or more. As defendant points out there was no direct evidence of the value of the damage. At the end of the case-in-chief defense counsel moved under section 1118.1 to dismiss the count on that ground. The court, denied the motion, finding that the photos and testimony, and the jurors’ “common sense, ... knowledge, [and] experience” were sufficient. We agree.
“‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [ Citation.] We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] ‘This standard applies whether direct or circumstantial evidence is involved.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.) Further, “[u]nless it is clearly shown that ‘on no hypothesis whatever is there sufficient substantial evidence to support the verdict’ the conviction will not be reversed. [Citation.]” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.) “‘[I]f the circumstances reasonably justify the... findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)
Here the circumstantial evidence presented to the jury, that is, the testimony of Cecena and the officer, including the latter’s testimony it was “major damage, ” and the photos support the verdict. It was proper for the jurors to rely on their experience and general knowledge to determine the value of the damage. (Ferrari v. Mambretti (1943) 58 Cal.App.2d 318, 327 [“‘If the trier of the facts possesses the common knowledge of the value of [ ] services, their reasonable value may be determined without the aid of opinion testimony’”].) Neither an estimate of costs to repair nor evidence of the fair market value of the car before the accident was required.
2. Sentence on Child Endangerment Count
Because defendant was sentenced on the two cases together, only one principal term could be selected. Here the court chose one in each case: three years, doubled to six, for stalking in case No. INF062462 and four years, doubled to eight, for one of the child endangerment counts in case No. INF059800, ordered to run consecutively to the stalking sentence. Defendant contends the latter sentence was imposed in error. The Attorney General agrees there could not be two principal terms.
Under section 1170.1, subdivision (a), except in circumstances not applicable here, where a defendant who is being sentenced for convictions in more than one proceeding has been convicted of two or more felonies and the court imposes a consecutive term, “[t]he principal term shall consist of the greatest term of imprisonment imposed... [and] [t]he subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed....” The case is remanded to the trial court for resentencing.
3. Jury Instruction as to Receipt of Stolen Property
The jury was instructed with CALCRIM No. 1750 as follows: “[T]o prove that the defendant is guilty of [the crime of receiving stolen property] the People must prove that: [¶] One, the defendant received or possessed property that had been stolen; and when the defendant received or possessed the property, he knew that the property had been stolen. [¶] Property is stolen if it was obtained by any type of theft or by burglary or robbery. Theft includes obtaining property by larceny, embezzlement, false pretense, or trick. [¶] To receive property means to take possession and control of it. Mere presence near or access to the property is not enough. Two or more people can possess the property at the same time. A person does not actually have to hold or touch something to possess it. It is enough if the person has the control over it or the right to control it either personally or though another person.”
Defendant contends this instruction was insufficient because the jury was not given the definition of theft, which includes the element that the property was taken with the intent to either “permanently deprive the owner of possession” (People v. Avery (2002) 27 Cal.4th 49, 54, italics omitted) or temporarily take it “for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment... ” (id. at p. 52). He argues to convict defendant the jury had to find the car was taken with that intent but were not instructed as to that element.
To support this argument, defendant relies on the bench note to CALCRIM No. 1750 that requires the court to sua sponte instruct with a “complete definition[] of theft” where “there are factual issues regarding whether the received stolen property was taken with the intent to permanently deprive the owner of possession....” (Bench Note to CALCRIM No. 1750 (LexisNexis Matthew Bender 2009-2010 ed.) p. 1228, citing People v. MacArthur (2006) 142 Cal.App.4th 275.)
But MacArthur does not support defendant’s position. There the defendant was convicted of receiving stolen property based on pawning some jewelry belonging to his girlfriend’s mother. Both he and the girlfriend testified she had taken and pawned the mother’s jewelry on several prior occasions when she needed cash and then returned the jewelry after redeeming it. The defendant also testified he did not believe his girlfriend had stolen the jewelry or had to get his mother’s permission to take it. We reversed the conviction because the jury had not been instructed with the definition of theft. (People v. MacArthur, supra, 142 Cal.App.4th at p. 280.) The instruction was necessary because there was evidence that the defendant or his girlfriend may not have had the necessary intent to deprive the mother of possession of the jewelry. (Ibid.)
That is not the case here. Rather, all the evidence shows the car was taken from Antes with the intent to permanently deprive him of possession. Antes never gave anyone permission to take the car and notified law enforcement it was missing. There was no evidence defendant or the person or persons who took it intended to return it. Defendant’s testimony he did not take the car at all is not evidence that he did not have the intent to take it permanently. He never denied that intent and thus it was not in issue, despite his plea of not guilty. The court was not required to instruct with the definition of theft.
DISPOSITION
We reverse the sentences on both cases and remand to the trial court for resentencing. The judgment is otherwise affirmed.
WE CONCUR: MOORE, J. FYBEL, J.