Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, William J. McGrath, Jr., Judge. Super. Ct. No. SCE270364.
McINTYRE, J.
Aaron Moses Levy appeals a judgment entered following his conviction of felony vandalism, contending the trial court erred in failing to give a unanimity instruction and improperly admitting evidence of two prior uncharged vandalism incidents. We find no prejudicial error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of April 9, 2007, Barona Valley Ranch Resort and Casino (Barona) security staff discovered that the upholstery on at least 28 chairs had been slashed through the felt and padding the night before. After noting the position of each chair, members of the surveillance team attempted to identify a suspect by watching between 16 to 20 hours of video recordings from the previous evening. The team looked for any kind of violent movement when initially viewing the tapes, but observed no such conduct. When they again viewed the tapes they saw a male suspect making slashing motions between 10:43 p.m. and 11:26 p.m. near nine of the chairs that had been found damaged.
Two days later, Barona Security Supervisor Robert James located Levy in the casino, identified him as the suspect seen on the video and took him into custody. After viewing part of the video showing Levy making "hand movements" toward about eight chairs and inspecting the chairs, Sheriff's Deputy Michael Pepin arrested Levy and confiscated a Swiss Army Knife key chain. Deputy Pepin believed that the slash marks he saw on the chairs could have been made by the blade on Levy's knife. When Deputy Pepin asked Levy if he had slashed the chairs, Levy stated that he could not remember and was upset with Barona because it was taking everybody's money.
Levy was charged with one count of vandalism exceeding $400. At trial, Barona Security Manager Johnnie Ramirez testified that 32 chairs suffered slashing damage and that he personally inspected 28 chairs. Each chair cost about $98 to entirely reupholster, but about $50 to replace only the back. Ramirez played a portion of the video surveillance tape for the jury showing Levy making slashing motions near ten chairs and the jury saw photographs of about 28 damaged chairs. Ramirez testified that Levy told him he had cut the chairs because he was very angry or upset, but admitted he did not include Levy's statement in his written report. James also testified about two encounters he had with Levy before the slashing incident.
The jury found Levy guilty of the charged crime and the trial court later sentenced him to three-years formal probation and required that he do volunteer work and pay restitution. Levy timely appealed.
DISCUSSION
I. A Unanimity Instruction Was Not Required
Levy claims that the trial court had a sua sponte duty to give a unanimity instruction because the prosecution presented evidence of multiple acts to prove the single vandalism count and the jury had to agree that Levy slashed at least five chairs to find that he had committed felony vandalism. We disagree.
A defendant's constitutional right to a unanimous jury verdict requires that when the evidence shows more than one unlawful act that could support a single charged offense, the prosecution must either elect which act to rely upon or the trial court must sua sponte give a unanimity instruction telling the jurors they must unanimously agree which act constituted the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The unanimity instruction is designed to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agreed the defendant committed. (Ibid.)
No unanimity instruction is required, however, when the offense involves a continuous course of conduct; i.e., when the acts are "substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place[.]" (People v. Champion (1995) 9 Cal.4th 879, 932, internal quotes omitted, overruled on another point in People v. Combs (2004) 34 Cal.4th 821, 860.) The continuous conduct rule also applies when a defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for jurors to distinguish between them. (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
Here, although Levy slashed multiple chairs, his acts were not separated in time or place; rather, they were part of a continuous course of conduct that occurred in less than one hour and formed part of one transaction. Additionally, his only defense was that the prosecution had failed to prove beyond a reasonable doubt that he had slashed the chairs when he made hand movements near them. Accordingly, there was no reasonable basis for the jury to distinguish between the acts and it necessarily rejected the only defense offered. (People v. Deletto (1983) 147 Cal.App.3d 458, 466.) We therefore conclude that the trial court had no sua sponte duty to give a unanimity instruction.
II. Uncharged Acts Evidence
A. Facts
Before trial, the prosecution moved in limine to introduce evidence of other, uncharged misconduct. The referenced misconduct included (1) a 2003 incident in which Levy urinated on the casino floor, and (2) a 2006 incident where Levy poured coffee into a slot machine. Although defense counsel objected, arguing that the prior misconduct was improper character evidence, dissimilar and likely to confuse the jury, the trial court disagreed, finding that the incidents were similar because they occurred at Barona while Levy was gambling.
At trial, James testified that he had two encounters with Levy before the slashing incident. About three and one-half years earlier, James escorted Levy off the property after Levy told James he was upset at the machines and had urinated and vomited on the floor. About three months before the slashing incident, James contacted Levy about an incident reported by another security officer. Levy told James that he had poured coffee in a slot machine bill "validator" because he had been losing and was angry.
B. Analysis
The trial court retains broad discretion in determining the relevancy of evidence (People v. Scheid (1997) 16 Cal.4th 1, 14) and we will not reverse an evidentiary ruling unless the appellant demonstrates a manifest abuse of that discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Evidence that the defendant committed prior bad acts is inadmissible when offered solely to prove the defendant's criminal disposition to commit such an act (Evid. Code, § 1101, subd. (a); People v. Ewoldt (1994) 7 Cal.4th 380, 393, 399, superseded by statute on other grounds), but is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than [the defendant's] disposition to commit such an act." (Evid. Code, § 1101, subd. (b).)
For the crime of vandalism, the prosecution must prove that the defendant maliciously damaged or destroyed property that was not his or her own. (Pen. Code, § 594, subd. (a).) The word "maliciously" "import[s] a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." (Pen. Code, § 7, subd. 4.) Thus, although vandalism is a general intent crime, the prosecution needed to prove Levy's intent. (People v. Atkins (2001) 25 Cal.4th 76, 85 [the term "'malicious,' as used in [Penal Code] section 7, subdivision 4, does not transform an offense into a specific intent crime"].)
Although Levy points out he did not argue to the jury that he accidentally damaged the chairs, his not guilty plea put all elements of the crime at issue and he failed to take any action to narrow the prosecution's burden of proof. (People v. Ewoldt, supra, 7 Cal.4th at p. 400, fn 4.) The prior acts evidence was therefore relevant to prove his intent in the instant case. "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (Id. at p. 402.) The similarity between the two "must be sufficiently similar to support the inference that the defendant '"probably harbor[ed] the same intent in each instance.' [Citations.]" (Ibid.) Here, evidence showing that Levy previously vandalized Barona property when angry at the casino because of gambling losses was relevant to show that he harbored a similar intent, motive or state of mind for the instant crime. Thus, Levy's contention that the evidence of other misconduct was inadmissible is without merit.
Equally unavailing is his argument that the trial court abused its discretion under Evidence Code section 352 because the evidence was unduly prejudicial and cumulative. The trial court's discretion is broad when assessing whether the probative value is outweighed by undue prejudice (People v. Brown (2000) 77 Cal.App.4th 1324, 1337) and the court could reasonably conclude that the probative value of the evidence outweighed any prejudicial effect, since it was significant evidence concerning his motive and intent.
Levy contends that the jury was unduly influenced by the uncharged acts evidence because one juror asked the court during a break in deliberations whether the jury could recommend anger management for Levy. We reject this suggestion because Levy told Deputy Pepin that the casino was taking everybody's money and he was upset about this. Ramirez also testified that Levy was angry or upset at the casino. Additionally, after the juror asked this question, the trial court told the jury that they could recommend anything after a verdict was reached, but that sentencing should not enter into their mental process in determining the facts or whether the case was proven beyond a reasonable doubt.
Finally, Levy argues that the evidence was cumulative on the issue of identity. Whether or not the evidence was cumulative on this question is not dispositive because the evidence was probative on the question of Levy's motive and intent and was not cumulative on that issue.
Even if there was any error in admitting evidence of other misconduct, it was clearly harmless. (Evid. Code, § 353; People v. Earp (1999) 20 Cal.4th 826, 878 [judgment not reversed for erroneous admission of evidence unless error results in miscarriage of justice].) Here, the videotape and Deputy Pepin's testimony that the slash marks on the chairs could have been made by the blade on Levy's knife was substantial evidence supporting the convictions. It is not reasonably probable that Levy would have obtained a more favorable result had the evidence of his other acts been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P.J., McDONALD, J.