Opinion
B229381
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. PAULETTA ANN JAMES, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA074194)
APPEAL from a judgment of the Superior Court of Los Angeles County. Vincent H. Okamoto, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Respondent.
Pauletta Ann James appeals the judgment entered after a jury convicted her of felony vandalism in violation of Penal Code section 594, subdivision (b). She contends that the trial court erred in failing to instruct the jury, sua sponte, on the lesser included offense of misdemeanor vandalism in violation of section 594, subdivision (a). We affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts preceding James's arrest
As of April 24, 2008, James had been dating Gerald Brown for four months. That evening, Brown cooked a special seafood meal for James because he was leaving town on business. He knew James was unhappy that she could not accompany him, and the couple discussed James's anxiety about the upcoming trip that evening. After dinner, Brown refrigerated the leftovers.
On April 25, 2008, with James's consent, Brown left his Escalade in James's driveway before leaving on his trip. Brown's car had previously been towed in February 2008 for being left on the street during a business trip, so James offered to let him park his car there while he was out of town. Brown left for Las Vegas the next afternoon. He gave James his hotel and telephone information once he arrived, then went to a business meeting. During this time, James called Brown's phone repeatedly. When Brown returned the calls after the meeting, James screamed at him and accused him of being with someone else. She threatened to tow the Escalade, but later agreed that the vehicle could remain in the driveway. For the rest of the weekend, Brown attempted to contact James but was unable to reach her.
On April 26, 2008, James called a tow truck service and stated that a car was blocking her driveway. A tow truck driver for the company, George Martin, responded to the call and met James at her house. She claimed not to know the owner. Martin thought it was odd that a stranger would park in James's driveway, but James repeatedly denied knowing who parked the car. She signed a consent form allowing Martin to tow the car from her property.
Martin did not inspect the vehicle before towing it and marked its condition as fair. Once at the tow yard, he inventoried the vehicle. He smelled a bad odor coming from the car's interior. On the outside, he noticed numerous scratches as well as damage to the passenger side mirror. James called Martin twice over the next two days to ask if the owner had picked up the car yet.
On April 30, 2008, Brown went to James's residence to pick up his car. When it was not there, he contacted James to ask about its whereabouts. James denied knowing where the vehicle was, so Brown called the police, who told him the car was at a tow yard. He went to the tow yard and was shocked at the car's condition. The Escalade had scratches up and down the sides, a broken mirror, and a hole punched in the door. According to Martin, Brown said that he could not believe that "she did this" to his car. Brown then found the seafood dinner inside the car. Because the car had none of this damage before he left for Las Vegas, Brown reported the damage to the police.
After the police report was filed, detectives attempted to contact James through October 2008, but she did not respond. Around this time, James sent Brown an e-mail regarding the incident. They began communicating, and James admitted in a telephone call that she damaged the Escalade to hurt Brown because she believed he was seeing other women. She stated she would pay for the damages, and Brown gave her two months, until December 2008, to propose a solution for payment.
Brown brought his car to a body shop estimator, Daniel Porter, who told Brown that repairs would cost $8,363.48. Of this amount, $84 was required to repair the interior. James did not make any payment between October and December 2008 because she claimed not to have money to pay for the damages.
2. Evidence presented at trial
At trial, James pled not guilty and presented testimony to show that the exterior damage already existed prior to the April 2008 incident. Tow manager Richard Austin testified that the vehicle had numerous scratches when it was previously towed in February 2008, but he also stated on re-direct that photographs of the car after it was towed in April 2008 showed scratches that appeared fresh.
The People presented testimony from Martin, who saw the car immediately after removing it from James's property, stating that the exterior damage appeared to have been committed recently. He did not believe the scratches occurred months before the charged incident. Porter and Austin also stated that photos taken of the car shortly after the April 2008 incident showed exterior damage that they believed to be recent exterior damage.
Martin corroborated Brown's testimony that the car did not have all of the damage before Brown left for Las Vegas. He testified that Brown stated he could not believe James "did this" before opening the car to smell the rotting seafood dinner. Moreover, James admitted that she damaged the car to get back at Brown and agreed to pay for all of the damages.
The trial court instructed the jury with CALCRIM No. 2900, which requires the jury to find the amount of damage to be $400 or more to convict the defendant of felony vandalism. The court did not give the jury instructions on the lesser verdict of misdemeanor vandalism with damage or destruction of property not exceeding $400.The jury convicted James of felony vandalism.
We cannot determine whether James requested a lesser offense instruction because the jury instruction conference was conducted informally and off the record.
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DISCUSSION
James claims that the trial court erred when it failed to instruct the jury on misdemeanor vandalism as a lesser included offense of felony vandalism. The only difference between felony and misdemeanor vandalism is the amount of the resulting damages. (§ 594, subd. (b).) James argues Austin's testimony that scratches on the Escalade existed prior to April 2008 constituted substantial evidence that James was not responsible for the exterior damage to the vehicle and was instead only responsible for the $84 of interior damage caused by the rotting seafood dinner. We disagree.
"Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe, is however predominantly legal. As such, it should be examined without deference." (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Instructions on lesser included offenses must be given when there is substantial evidence for a jury to conclude the defendant is guilty of the lesser offense but not the charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman).)"[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . . " (People v. Moye (2009) 47 Cal.4th 537, 553.) Substantial evidence is defined for this purpose as "evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) "In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight." (Breverman, supra, 19 Cal.4th at p. 177.) Only if substantial evidence had existed to show that James was responsible for less than $400 of damage to the car, would the court have been required to instruct sua sponte on the lesser included offense of misdemeanor vandalism.
Here, the only evidence James presented to suggest that she was not responsible for all of the damage to the Escalade was Austin's testimony, which proved contradictory. Austin claimed that he saw scratches on the car in February 2008. However, he also stated that the photographs of the car taken after the charged incident depicted scratches that appeared fresh. Austin's testimony does not fully support James's theory that the exterior damage was pre-existing because Austin appeared unsure as to when the scratches first appeared. This testimony raises only speculation that some scratches could have existed prior to the charged incident.
Instead, the evidence suggests that James committed the greater offense of felony vandalism based on both the exterior and interior damage to the Escalade. Martin, Porter, and Austin all testified that photos of the car taken shortly after the charged incident showed exterior damage and scratches that appeared fresh. Martin also corroborated Brown's testimony that he was shocked at the condition of the exterior of his car and that he could not believe James "did this" to his car before discovering the interior damage. Furthermore, James admitted that she vandalized the car to get back at Brown, and she agreed to pay for all the damages. However, James did not have the money upon contacting Brown to pay for all of the damages, suggesting that she was responsible for the full $8,363 and not merely the $84 interior damage cost. Because of the conflicting nature of Austin's testimony and the fact that "'any evidence, no matter how weak'" will not justify instructions on a lesser included offense (Breverman, supra, 19 Cal.4th at p. 162), the trial court did not err in failing to instruct the jury on misdemeanor vandalism as a lesser included offense of felony vandalism.
Even, however, if the trial court should have instructed the jury on misdemeanor vandalism, the error was harmless. The failure to instruct sua sponte on a lesser included offense "is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. [Citations.]" (Breverman, supra, 19 Cal.4th at p. 165.) James cannot demonstrate that the error affected the outcome because the evidence that James solely damaged the interior of the vehicle and committed misdemeanor vandalism was, at best, extremely weak compared to the evidence that she was responsible for all the damage. As a result, any error would have been harmless.
DISPOSITION
The judgment is affirmed.
ZELON, J.
We concur:
WOODS, Acting P. J.
JACKSON, J.