Opinion
D075472
05-29-2020
THE PEOPLE, Plaintiff and Respondent, v. NAMIR A. JONES, Defendant and Appellant.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD276051) APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed as modified; remanded for resentencing. Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Namir A. Jones slashed the tires on three vehicles in a shopping center parking lot, causing less than $400 in damage to each vehicle, but collectively causing about $659 in damage. Consistent with how it was instructed, the jury aggregated these damages and found Jones guilty of a single count of felony vandalism causing $400 or more. (Pen. Code, § 594, subds. (a), (b)(1).) The trial court imposed a five-year prison sentence, which included a one-year prison prior enhancement.
Further undesignated statutory references are to the Penal Code.
On appeal, Jones contends the trial court erred by allowing aggregation of the vandalism damages to meet the $400 felony threshold, and by failing to instruct the jury sua sponte that it must agree unanimously as to which vehicle or vehicles he vandalized. As we will explain, because the jury necessarily found that Jones vandalized the three vehicles "pursuant to a single general impulse, intention or plan" (People v. Carrasco (2012) 209 Cal.App.4th 715, 717 (Carrasco)), aggregation was appropriate and no unanimity instruction was required.
In a supplemental brief, Jones requests that we strike his prison prior enhancement and remand for resentencing because an intervening legislative amendment eliminated his prior conviction as a qualifying predicate for the enhancement. The Attorney General agrees this relief is appropriate, as do we.
We grant Jones's request for leave to file the supplemental brief.
Accordingly, we strike the prison prior enhancement and remand for resentencing. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
John R. testified that at around 6:25 a.m. on March 17, 2018, he parked his 2010 Ford Fusion in a shopping center parking lot in front of the CVS pharmacy where he worked. When he returned to his Ford after his shift, around 3:00 p.m., John discovered one of its tires had been slashed. He "noticed it was a slashed tire because the two vehicles, one on the right and the left, also had two slashed tires." It cost John $174.46 to replace his tire.
Albert P. testified that at around noon or 1:00 p.m. on March 17, he parked his 2016 Jeep Compass in the parking lot in front of the CVS pharmacy. When he returned to his Jeep around 3:00 p.m., he discovered both passenger side tires were flat and had "stab" marks in them. It cost Albert $328.90 to replace the two tires.
Theodore N. testified that at around 2:00 p.m. on March 17, he parked his 1997 Honda Civic in the parking lot near the CVS pharmacy while he and his family had lunch at a nearby restaurant. When he returned to his Honda around 3:00 p.m., he discovered that both driver's side tires had "puncture wounds, like a knife blade." It cost Theodore $155.62 to replace the two tires.
Constance G. testified that she arrived in the shopping center parking lot around 2:45 p.m. on March 17. As she slowly drove, looking for a parking space, she observed a "young man crouched down on the passenger side of a vehicle . . . making jabbing motions." This "looked suspicious," so she "lingered there and kept observing." The man moved to the back side of the same car and made "odd motions," then turned toward the car on his other side. When he turned, Constance saw he was holding a knife, which he then used to stab the tire of the other car. Constance lost sight of the man "for a short period of time," but then saw him get into a newer white sedan with Nevada license plates and drive away. She called 911 and reported her observations.
Angela M. testified that she arrived for work at the CVS pharmacy at around 3:00 p.m. on March 17. As she walked through the parking lot, she saw "a commotion" and heard someone on a cell phone discussing a white car with Nevada license plates. A white Toyota Corolla with Nevada license plates sped by Angela and almost hit her. She got back in her car and followed the Toyota to get a license plate number to give police. She caught up to the Toyota, called 911, and provided a license plate number and updates on their location. Police pulled up behind Angela, and she moved aside to allow them to take over the pursuit.
A police officer pulled over the Toyota within a mile or two of the shopping center parking lot. Jones was driving, and no one else was in the car. The officer searched the Toyota and found a knife in the trunk, "loose[,] just on the floor out in the open."
Another officer drove Constance from the shopping center parking lot to the scene of the traffic stop for a "curb side lineup" with Jones. Constance testified she was "75 percent sure" Jones was the suspect she had seen in the parking lot, and he generally matched the physical description of the suspect she provided the 911 dispatcher and at trial. Constance testified the white Toyota at the traffic stop was "a perfect match" for the vehicle in which she saw the suspect flee the parking lot. She was also "pretty confident" the knife recovered from the trunk was the one she had seen the suspect holding, and it matched the physical description she provided at trial.
Constance testified she was not comfortable providing a higher degree of certainty "[b]ecause we all know that witness identifications[,] no matter how sincere and how earnest[,] have been proved to be faulty."
Surveillance video from the shopping center security cameras was played for the jury.
The defense did not present any evidence.
Jury Verdict, Priors, and Sentencing
After deliberating for less than two hours, the jury found Jones guilty of vandalism, and specially found "that the amount of damage caused by the vandalism was $400 or more."
Jones waived his right to a trial on his priors, and admitted the following: a conviction in 2011 for attempted auto theft (Veh. Code, § 10851) and aggravated assault (Pen. Code, § 245, subd. (a)(1)); a conviction in July 2016 for failure to appear (Pen. Code, § 1320.5); and a conviction in August 2016 for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(4)), with a true finding that he personally inflicted great bodily injury or used a firearm during the commission of the felony (Pen. Code, § 1192.7, subd. (c)(8)). Jones further admitted the 2011 conviction constituted a prison prior, both 2016 convictions constituted a single prison prior, and the 2016 conviction for assault with a deadly weapon constituted a strike prior.
The trial court denied Jones's motion to strike his strike prior, and sentenced him to five years in prison as follows: four years for the vandalism conviction (the two-year midterm, doubled for the strike prior), plus one year for the 2011 prison prior. The trial court declined to impose the 2016 prison prior because the court had already used the underlying strike prior to double Jones's sentence.
DISCUSSION
I. No Error in Aggregating Damages
Jones contends the trial court erred by allowing aggregation of the victims' damages to exceed the $400 felony threshold. We disagree.
A. Background
After the preliminary hearing, Jones moved under section 995 to dismiss the single count of felony vandalism on the basis it was improper to aggregate damages sustained by multiple victims. The trial court denied the motion.
Later, during a conference on jury instructions, the prosecution proposed the following instruction to address the aggregation issue:
"In determining the amount of damages, multiple instances of vandalism may be aggregated where the facts show that the incidents of vandalism were not separate and distinct, but were committed pursuant to one intention, one general impulse and one plan. [¶] If you find the defendant guilty of vandalism in count one, you must then decide whether the people have proved that the amount of the damage caused by the vandalism in count one was $400 or more. The people have the burden of proving this allegation beyond a reasonable doubt. If the people have not met this burden, you must find that this allegation has not been proved."
When the court asked whether defense counsel objected to the instruction, she responded, "I mean, it's certainly the law," but "I would ask the court not to give it unless the jury comes back with a question, and then maybe we can talk about it." The trial court replied, "It's clearly what the law is, . . . . [a]nd I agree with the prosecutor in this particular case, I think it's appropriate. I think in other cases it would be inappropriate."
The trial court ultimately gave the prosecution's requested instruction. The verdict form required the jury to make separate findings on guilt and whether "the amount of the damage caused by the vandalism was $400 or more."
B. Relevant Legal Principles
Under section 594, a person commits vandalism if he or she maliciously defaces, damages, or destroys real or personal property that is not his or her own. (§ 594, subd. (a).) In general, vandalism that causes less than $400 in damage is a misdemeanor, and vandalism causing $400 or more is a "wobbler" (i.e., it may be charged as a misdemeanor or a felony). (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 906, fn. 14.)
Section 594, subdivision (a) provides in part: "Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: [¶] (1) Defaces with graffiti or other inscribed material. [¶] (2) Damages. [¶] (3) Destroys."
Whether damage may be aggregated is governed by the Bailey doctrine. In People v. Bailey (1961) 55 Cal.2d 514 (Bailey), the defendant made a single misrepresentation that enabled her to unlawfully receive a series of welfare payments, each of which constituted only petty theft, but which in aggregate constituted grand theft. (Id. at pp. 515-516, 518 & fn. 3.) The California Supreme Court held the defendant could properly be convicted of a single count of grand theft on an aggregation theory if each wrongful taking was "committed pursuant to one intention, one general impulse, and one plan." (Id. at p. 519.)
In In re Arthur V. (2008) 166 Cal.App.4th 61 (Arthur V.), our court considered as an issue of first impression "[w]hether separate instances of misdemeanor vandalism may be aggregated to constitute a single felony offense." (Id. at p. 65.) The juvenile in Arthur V. smashed the windshield of the victim's car, causing $150 worth of damage. (Id. at pp. 64-65.) Then, when the victim got out of his car and retrieved his cell phone to call 911, the juvenile kicked the victim in the back, causing him to drop and break his $350 cell phone. (Ibid.) The juvenile court aggregated these damages and found true the allegation that the juvenile had committed felony vandalism by causing more than $400 in damage. (Ibid.) We held "that the rule announced in Bailey [allowing aggregation] applies with equal force to the offense of vandalism." (Id. at p. 67.)
In so holding, we recognized that "modern case law demonstrates a clear trend toward limiting the Bailey doctrine to theft cases." (Arthur V., supra, 166 Cal.App.4th at p. 67.) But we reasoned that "the principal analytical distinction to be drawn in applying Bailey is not between theft and nontheft crimes . . . , but rather between offenses that can be aggregated to create a felony offense, such as petty theft and misdemeanor vandalism, and those that cannot, such as burglary." (Ibid.) We found the "dichotomy between grand and petty theft . . . directly analogous to the dichotomy between felony and misdemeanor vandalism" because the "dividing line" in each pair "depend[ed] on the value of property at issue." (Id. at p. 68.)
We thus concluded that, "[a]s with theft offenses, multiple instances of misdemeanor vandalism can be aggregated to form a single felony, unless 'the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan.' " (Arthur V., supra, 166 Cal.App.4th at p. 69, quoting Bailey, supra, 55 Cal.2d at p. 519.) Resolution of this "fact-specific . . . evaluation of the defendant's intent . . . . is appropriately left to the fact finder in the first instance," subject to review on appeal for substantial evidence. (Id. at p. 69.)
Applying these principles, we found substantial evidence supported the juvenile court's ruling because "[t]he damage to the windshield and cell phone occurred within a very brief time period, in the same approximate location, and constituted the victimization of the same person . . . who had been singled out for abuse." (Arthur V., supra, 166 Cal.App.4th at p. 69.) We clarified, however, that "the existence of multiple victims will not necessarily preclude aggregation." (Id. at p. 68, fn. 4.) That is, "rather than creating some artificial dividing line, 'the number of victims involved is only one factor to be considered in determining whether there is one intention, one general impulse, and one plan . . . .' " (Ibid.)
In Carrasco, supra, 209 Cal.App.4th 715, the court squarely addressed in "a case of first impression" whether the Bailey doctrine allows aggregation of vandalism damages "where a defendant engages in vandalism that causes damage to the property of more than one victim." (Carrasco, at p. 717.) The defendant in Carrasco—pursuant to a "single angry impulse directed toward his mother's refusal to let him into the house" in which she was temporarily staying, but which was owned by the defendant's father— broke the front window of the house, and broke the windows on the mother's car. (Ibid.) "Guided by the rule of aggregation articulated . . . in [Bailey] and construed in [Arthur V.]," the Carrasco court held that "where a defendant engages in vandalism that causes damage to the property of more than one victim, aggregation of the damages amounts is appropriate when the damage did not result from separate and distinct criminal acts and was inflicted pursuant to a single general impulse, intention or plan." (Ibid.)
The Carrasco court deemed it significant that the vandalism statute "does not distinguish between vandalism resulting in damage to the property of a single victim or multiple victims," but rather, "simply provides that a defendant is guilty of vandalism if he or she defaces, damages, or destroys 'real or personal property not his or her own.' (§ 594, subd. (a).)" (Carrasco, supra, 209 Cal.App.4th at p. 720, italics added.) That is, "[t]he focus is not on the number of owners whose property may have been damaged, but on the nature of the property as 'not [defendant's] own.' " (Ibid.)
C. Analysis
We find no reason to depart from our holding in Arthur V. that Bailey's aggregation doctrine applies to vandalism damages, and we find persuasive the reasoning and holding in Carrasco, supra, 209 Cal.App.4th 715 that aggregation is not precluded merely because the defendant vandalized property belonging to more than one victim (id. at p. 717). Consistent with these cases, the trial court properly instructed the jury that "multiple incidents of vandalism may be aggregated where the facts show that the incidents of vandalism were not separate and distinct, but were committed pursuant to one intention, one general impulse, one plan." By aggregating the damages, the jury necessarily found the prerequisites articulated in Arthur V. and Carrasco satisfied. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 861 ["We presume that jurors follow instructions[.]"].)
Jones does not challenge the sufficiency of the evidence supporting the jury's findings. Indeed, such a challenge would likely fail in light of the fact the record shows he slashed the tires on three vehicles at the same time and place, and in the same manner. (See, e.g., Carrasco, supra, 209 Cal.App.4th at p. 723 ["a reasonable jury could find that the two acts of vandalism were not 'separate and distinct,' because they occurred within the same time period and at the same location"]; Arthur V., supra, 166 Cal.App.4th at p. 69 [finding substantial evidence where both acts of vandalism "occurred within a very brief time period, in the same approximate location, and constituted the victimization of the same person"].)
Jones acknowledges our holding in Arthur V., but notes "the issue has not been addressed by the California Supreme Court," and he questions Bailey's continuing applicability in light of the California Supreme Court's intervening decision in People v. Whitmer (2014) 59 Cal.4th 733 (Whitmer). Neither point persuades us.
First, the fact that the Supreme Court has not addressed the issue we squarely decided in Arthur V. does not suggest we decided the issue incorrectly.
Second, Whitmer has no bearing on the aspect of Bailey that applies here. Whereas Bailey allowed the aggregation of several petty thefts into a single grand theft offense, "[s]ubsequent decisions have construed Bailey as being a two-sided coin, granting criminal defendants the right to insist upon the dismissal of all but one conviction when multiple crimes are unified by a single intent, impulse or plan." (People v. Kirvin (2014) 231 Cal.App.4th 1507, 1517, italics added; see Whitmer, supra, 59 Cal.4th at p. 739 [" 'some courts have held that Bailey bars multiple convictions for grand theft when the individual thefts arise from a recognizable plan or scheme, even though each theft is separate and distinct' "].) The Whitmer decision disapproved this so-called " 'converse Bailey' doctrine" (Kirvin, at p. 1517), and held that criminal defendants have no right to obtain a " ' "felony discount" ' " by compelling aggregation simply because they committed multiple thefts according to a single scheme. (Whitmer, at pp. 740, 741.) Whitmer did not disapprove of the permissive aggregation aspect of the Bailey doctrine that was at issue in Arthur V. and Carrasco.
Jones also argues Carrasco "is readily distinguishable" because although the court allowed aggregation even though there were nominally multiple victims, there were not truly multiple victims because both victims (the defendant's parents) were members of the "same household." (Carrasco, supra, 209 Cal.App.4th at pp. 721, 722.) But the Carrasco court, itself, rejected this distinction as "irrelevant, [because] under the Bailey doctrine, aggregation is permissible regardless of the number of victims, unless the acts of vandalism were ' "separate and distinct" ' and were not committed ' "pursuant to one intention, one general impulse, and one plan." ' " (Id. at p. 723.)
Finally, Jones's reliance on In re David D. (1997) 52 Cal.App.4th 304 to support the proposition that the Bailey doctrine "is not applicable to multiple victims" is unavailing. The juvenile in David D. "spent an evening" (David D., at p. 310) driving "throughout the city, tagging [35 separately owned] propert[ies he] happened upon which appeared isolated and safe from witnesses" (id. at p. 311). On these facts, the David D. court concluded that—assuming, without deciding, that the Bailey doctrine applies to vandalism—it does not allow aggregation of damages when there are multiple victims. (David D., at p. 309.) But the court clarified that it did "not intend to imply . . . that the Bailey doctrine can never be appropriate to a theft or thefts from multiple victims." (Id. at p. 309, fn. 3.) Rather, "[d]etermining whether the instances of wrongful conduct constitute one or multiple offenses 'depends upon the facts of each case . . . .' " (Id. at p. 308, italics added, quoting Bailey, supra, 55 Cal.2d at p. 519.)
The facts here are readily distinguishable from those in David D. Whereas the juvenile in David D. committed his crime spree over the course of an evening and throughout a city, Jones committed his spree within a matter of minutes and feet. Thus, David D. is inapposite.
In sum, on the record before us, the trial court did not err by allowing the aggregation of vandalism damages.
II. No Unanimity Instruction Was Required
To exceed the $400 felony vandalism threshold, the jury had to find that Jones vandalized the Jeep ($328.90) and either or both the Ford ($174.46) and the Honda ($155.62). Jones contends that because different jurors could conceivably have found him guilty of vandalizing different combinations of vehicles, the trial court erred by failing to instruct the jury sua sponte regarding unanimity. We disagree.
The damage to (1) the Jeep and the Ford totals $503.36; (2) the Jeep and the Honda totals $484.52; and (3) the Jeep, the Ford, and the Honda totals $658.98. But the damage to the Ford and the Honda totals only $330.08.
In a criminal case, "the jury must agree unanimously the defendant is guilty of a specific crime." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Thus, "[a]s a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty." (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).)
"There are, however, several exceptions to this rule. For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' [citation] . . . ." (Jennings, supra, 50 Cal.4th at p. 679.) Nor is the instruction required "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.' " (People v. Williams (2013) 56 Cal.4th 630, 682; see People v. Beardslee (1991) 53 Cal.3d 68, 93 [unanimity instruction not required where " 'the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place' "].)
When a unanimity instruction is required, the trial court must give it sua sponte even if no party has requested it. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) We review de novo whether a unanimity instruction is required. (People v. Hernandez (2013) 217 Cal.App.4th 559, 568.)
Based on our review of the record, we conclude no unanimity instruction was required. First, the continuous-course-of-conduct exception applies, as evidenced by the fact the jury, by aggregating damages, necessarily found that Jones committed the three acts of vandalism " ' "pursuant to one intention, one general impulse, and one plan." ' " (Carrasco, supra, 209 Cal.App.4th at p. 723.) Second, Jones offered essentially the same defense to each of the acts—mistaken identity. He did not argue that he vandalized some of the vehicles but not others, which would have afforded the jury a principled basis on which to reach potentially nonunanimous verdicts.
Jones's defense counsel argued during closing that "this whole case started with" Constance, who briefly lost sight of the perpetrator and was unwilling to implicate Jones with more than 75 percent certainty.
Accordingly, no unanimity instruction was required.
III. We Strike the Prison Prior and Remand for Resentencing
When Jones was sentenced in January 2019, his 2011 conviction (for attempted auto theft and aggravated assault) was a valid predicate for imposing a prison prior enhancement under section 667.5, subdivision (b). But while this appeal was pending, the Governor signed into law Senate Bill No. 136, which amended section 667.5, subdivision (b) to allow a one-year prison prior enhancement only if a defendant served a "prior prison term for a sexually violent offense . . . ." (Stats. 2019, ch. 590, § 1.) This amendment took effect on January 1, 2020, and applies retroactively to all judgments not yet final as of that date. (People v. Jennings (2019) 42 Cal.App.5th 664, 680-681; People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.)
The parties agree that because Jones's prison prior was not for a sexually violent offense, and because his judgment is not yet final, we should strike his prison prior and remand for resentencing. We, too, agree, and will do so. (See People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' "].)
DISPOSITION
Jones's one-year prison prior enhancement is stricken, and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
HALLER, J. WE CONCUR: McCONNELL, P. J. AARON, J.