P. v. Acosta
Filed 11/19/13 P. v. Acosta CA1/1
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
STEVE P. ACOSTA,
Defendant and Appellant.
A133462
(San
Francisco City
& County
Super. Ct. No. 206899)
A jury convicted
defendant Steve P. Acosta of multiple offenses against his former spouse, including
attempted murder, torture, criminal
threats, and infliction of great bodily injury involving domestic violence,
and felony vandalism. Defendant contends
his convictions must be reversed in whole or in part because (1) the trial
court improperly denied his motion to represent himself during trial, and (2)
there was insufficient evidence he committed vandalism. Finding no merit in defendant’s arguments, we
affirm the judgment.
I. BACKGROUND
A. Charges
Defendant
was charged in a third amended information with one count of torture (Pen.
Code,
206) with the use of a deadly weapon (§ 12022, subd. (b)(1)) and the infliction
of great bodily injury involving domestic violence (§ 12022.7, subd. (e)), two
counts of stalking (§ 646.9, subds. (a), (b)) with the use of a deadly weapon
(§ 12022, subd. (b)(1)) and the infliction of great bodily injury involving
domestic violence (§ 12022.7, subd. (e)), four counts of criminal threats
(§ 422), four counts of disobeying a domestic relations order (§ 273.6, subd.
(a)), two counts of vandalism (§ 594, subds. (b)(1) & (b)(2)(A)), one
count of premeditated attempted murder (§§ 187, subd. (a), 664) with
the use of a deadly weapon (§ 12022, subd. (b)(1)) and the infliction of great
bodily injury involving domestic violence (§ 12022.7, subd. (e)), one count of
aggravated mayhem (§ 205) with use of a deadly weapon (§ 12022, subd. (b)(1)),
one count of assault with a deadly weapon (§ 245, subd. (a)(1)) and the
infliction of great bodily injury involving domestic violence (§ 12022.7, subd.
(e)), one count of residential burglary (§ 459) with use of a deadly
weapon (§ 12022, subd. (b)(1)), one count of domestic violence (§ 273.5, subd.
(a)) with the use of a deadly weapon (§ 12022, subd. (b)(1)) and the
infliction of great bodily injury involving domestic violence (§ 12022.7,
subd. (e)), two counts of battery (§ 242), and one count of contempt of a
protective order (§ 166, subd. (c)(1)).
The third amended information further alleged defendant had two strike
priors (§§ 667, subds. (a)(1), (d) & (e), 1170.12, subds. (b) & (c))
for assault with a deadly weapon (§ 245, subd. (a)) and for assault with force
likely to cause great bodily injury (§ 245, subd. (a)(1)) with the infliction
of great bodily injury (§ 12022.7).
B. Prosecution Evidence
Kimberly Celoni
and defendant were married in February 1997.
At the end of 2007, defendant told Celoni he wanted a divorce but she
resisted. After defendant stalked her,
accused her of infidelity, and made threats of violence against her and her
children, Celoni agreed to a divorce in March 2008. After a further stalking incident on April 2,
2008, she filed a police report and obtained a protective order.
At this time, Celoni
and defendant jointly owned a Mercedes SUV, which defendant referred to as his
“truck.†They both made payments on the
vehicle. Celoni separately owned a
convertible Mercedes 280 SLK. At an
April 9, 2008 divorce hearing the judge ordered that both vehicles go into
Celoni’s custody. The judge instructed defendant
to figure out how much the Mercedes SUV was worth and give Celoni half that
amount. In response to the judge’s
instructions, defendant became furious and “started ranting and raving in the
courtroom and walked right out before it was finished.†Before storming out, defendant told the court
all he wanted was his truck.
At the same
hearing, a five-year restraining order was issued against defendant. Among other constraints, it ordered defendant
to stay at least 100 yards away from Celoni, her home, job, and car. Defendant refused to accept the order documents
at the hearing.
Two days later, on
April 11, Celoni drove past defendant in her Mercedes convertible on Mission
Street in San Francisco. Spotting her,
defendant said, “Hey, bitch. Come on
over here.†Celoni made a U-turn in the
middle of the street to escape confrontation with defendant whereupon he
immediately called her cell phone. Celoni
drove directly to the police station where, together with Officer Campagnoli of
the domestic violence unit, she listened to his voicemails. In the voicemail messages defendant told
Celoni the “last motherfucker you’ll see is me†at “four in the motherfucking
morning†and he would go to “death row†for what he planned to do. Defendant repeatedly stated: “I’m taking everything from you that you took
from me.â€
On the night of
April 13, Celoni left her Mercedes convertible and the Mercedes SUV she shared
with defendant parked in front of her house.
Both vehicles were in good condition at this time. The next morning all four tires on both
vehicles had been slashed.
On April 15,
Celoni was at her office when defendant once again called. In his voice message he told Celoni: “Now you have everything. Just look out your window.†Celoni spotted defendant from the window in
the back of her office walking out of the office parking lot up Mission Street.
In another message left the same day
defendant stated: “[Y]ou ended up
treating me like a gorilla pimp. Think
about it. You said fuck it, I’m taking
the truck . . . and I’m disrespecting you.â€
At the end of the
workday, Celoni discovered photos of her daughter and granddaughter under the
windshield wiper on her car. She
recognized the photos as those belonging to defendant. Celoni’s car was parked in the office parking
lot where defendant had been seen earlier that day.
After weeks of
intimidation, defendant turned threat to action when, at approximately 4:18
a.m. on April 16, he broke into Celoni’s home through the garage door window. Defendant made verbal threats against
Celoni’s life and brandished a hammer as he attempted to enter through the
window. Unable to safely escape
defendant from the ground floor, Celoni jumped from the upstairs balcony. The fall broke her back and rendered her
immobile. Finding her vulnerable,
defendant began to strike Celoni repeatedly with the hammer. The majority of the blows landed on Celoni’s
head, although her left hand was also severely injured as she attempted to
shield her face from the attack. As a
result of the permanent injuries
she sustained in the attack, Celoni is now on lifetime disability.
C. Defense Evidence
The sole
defense witness, defendant’s brother, Ken Acosta, testified to defendant’s tumultuous
history of drug abuse. Acosta testified
his brother sustained a long period of sobriety during his marriage to Celoni,
but began using narcotic drugs again in the months prior to his attack on
Celoni in April 2008. In summation, the
defense admitted to defendant’s threats and violence but argued defendant’s
intoxication at the time of the offenses prevented him from forming the
specific intent necessary to sustain conviction on the associated charges. On the charge of vandalism, the defense argued
the evidence did not support a finding of guilt beyond a reasonable doubt.
D. Verdict, Sentence, Appeal
The jury acquitted
defendant of two of the four criminal threat counts, and one of the two
stalking counts was presented to the jury as a lesser included offense. Defendant was found guilty of all remaining
counts and all of the special allegations associated with those counts were
found to be true.
The trial court
sentenced defendant to an aggregate term of 142 years to life in prison. This timely appeal followed.
II. DISCUSSION
Defendant first contends
the trial court erred in denying his motion to represent himself pursuant to
806 (Faretta).
After a complaint
was filed on April 18, 2008, charging defendant with 23 counts, defendant was
arraigned on November 3, 2008. The case
ultimately went to trial July 11, 2011. During the interim three years, 2008, 2009,
and 2010, defendant made six separate requests to continue his trial. In addition to the requested continuances,
defendant submitted multiple motions to substitute counsel during the three
years preceding trial. Defendant
submitted a Marsden
motion on October 9, 2008, against his first defense attorney, Kenneth Quigley.
This motion was denied. However, Quigley was ultimately relieved for
good cause on June 8, 2010, and replaced by Floyd Andrews. Defendant made two motions to discharge Andrews,
on May 2 and 16, 2011.
Defendant’s trial
commenced on July 11, 2011. During a
hearing on in limine motions on the second day of trial, defendant interjected
as follows: “Can I address the Court
real quick? I’ve been waiting since I
got in this jail for a time that I ask to address the Court, patiently.†After the court asked defendant to first take
some time to consider what he planned to tell the court and to confer with
defense counsel before doing so, defendant stated: “I’m almost willing to plead guilty so I don’t
have to listen to [the prosecutor’s] squeaky voice another minute. I want to make a Faretta motion.†The court
informed defendant that it was “too late†to make a Faretta motion as the trial had already begun.
Defendant stated
he had been waiting for a time to make the Faretta
motion and he had not been aware he was in the process of trial until the day
prior. He further submitted he had tried
two Marsden motions, both of which
had been denied. To this, the court
explained the Faretta motion is a
motion for self-representation and defendant’s attorney could no longer help
him. The following colloquy ensued: “THE COURT: You won’t be permitted to have [defense
counsel] sitting there so that he could advise you as to what to do or you
couldn’t consult with him or anything. You
are on your own. That’s the motion that
you are making right now? [¶] THE DEFENDANT: Under pro per, I can get some help to help me
guide through the system. [¶] THE COURT: That type of help to guide you through the
system is not available on a Faretta
motion. [¶] THE DEFENDANT: Maybe I have
it mixed up. Can you consider it? I would rather just defend myself. [¶] THE
COURT: Based upon the record before me
now and the timing of the motion and the reasons that you give, you are tired
of listening to the prosecutor? [¶] THE DEFENDANT: I was being facetious. Really, she drives me crazy, but that’s not my
issue. I don’t feel I’m getting
representation here and I—no insult to the lawyer, he’s great, but I don’t
think—this is not a good fit. It’s not working.
[¶] THE COURT: . . . [¶] The Court views your position as being you
are seeking the Court to give you another attorney, which the Court is not
going to do. It’s untimely to do at this
point. [¶] And it’s also a motion to represent yourself in case I don’t give
you another attorney. [¶] On the surface of it, based upon what you’ve told me
here, this is an apparent use—some might say manipulation of two rights—in the
hope that some type of error might arise out of that.â€
The court
subsequently held a hearing on the Marsden
motion outside of the presence of the prosecutor. At this hearing, defendant expressed
frustration with his attorney due to a lack of witnesses to testify on his
behalf: “Nobody is being contacted. I’m not okay with the idea of going to jail
for the rest of my life. I’m 60. And there’s virtually no witnesses—character
witnesses or legal witnesses.†When
questioned further as to who he believed should be called defendant stated: “I would have to get a phone book and address
book of people I’ve known for the last 30 years.†He continued, “I would need some help, and I
would need a private investigator. That’s
why I think I could do it on my own.†When
the court requested he describe the witnesses if he could not name them, defendant
offered: “My director at my job. There’s some 40 or 50 clients who are their
family members. There’s my family
members. There’s 50 people in Narcotics
Anonymous . . . .â€
The court denied
defendant’s motions to discharge current counsel and to represent himself at
trial. As with defendant’s prior
court determined defendant had not offered evidence showing defense counsel provided
inadequate representation or the presence of irreconcilable conflict likely to
result in ineffective representation. Quite
to the contrary, in the court’s view “ ‘the quality of counsel’s
representation . . .’ [¶] . . . has been excellent.†Quoting from and citing the reasoning in
799, 827, the court determined defendant’s Faretta
motion to be untimely and equivocal. Specifically,
the court underscored the “unreasonable†length of time between defendant’s
arraignment and the requested Faretta
motion. Also “clear from [the] recordâ€
was “ ‘defendant’s prior proclivity to substitute counsel.’ †The court further observed the need to
consider the potential for disruption and delay to proceedings. To this end, the court stated: “[T]he defendant has presented nothing to this
Court to indicate that he would be able to proceed expeditiously with the trial
on his own.†To the contrary, the court
noted defendant’s ill-conceived belief that he would receive assistance “to
guide him through the proceedings . . . shows that there would be a
substantial disruption or delay.†The
court determined the delay would be untenable given “the stage of the
proceedings is at the trial stage right now . . . . this is the
second day of trial.†Further, based on
the timing, the “entire record before the Court and the defendant’s reasoning,â€
the court could not “make [the] finding†that defendant’s motion was “clear and
unequivocal†and “premised on a real desire to act as his own attorney.â€
Under the Sixth Amendment, a defendant has a
federal constitutional right to represent himself if he knowingly and
intelligently elects to do so. (Faretta,
supra, 422 U.S. 806.) However,
the right to self-representation is not absolute. Motions for self-representation made within close
range of or after commencement of a defendant’s trial may be rejected subject
to the trial court’s discretion: “In
order to invoke an unconditional right of self-representation, the defendant
must assert the right ‘within a reasonable time prior to the commencement of trial.’ [Citations.]
A motion made after this period is
addressed to the sound discretion of the trial court.†(People v. Burton (1989) 48 Cal.3d
843, 852, italics added.)
As
stated in People v. Windham (1977) 19 Cal.3d 121 (Windham): “For example, a
defendant should not be permitted to wait until the day preceding trial before
he moves to represent himself and requests a continuance in order to prepare
for trial without some showing of reasonable cause for the lateness of the
request. In such a case the motion for
self-representation is addressed to the sound discretion of the trial court
which should consider relevant factors . . . .†(Id.
at p. 128, fn. 5.)
Furthermore,
the timeliness determination is not based on an arbitrary sum of days, but
rather, upon the trial court’s consideration of the “totality of the
circumstances†at the time the motion is made. (People
v. Lynch (2010) 50 Cal.4th 693, 724, overruled on another ground in
610, 636–643.) Such circumstances
include: the time between the motion and the scheduled trial date, “whether
trial counsel is ready to proceed to trial, the number of witnesses and the
reluctance or availability of crucial trial witnesses, the complexity of the
case, any ongoing pretrial proceedings, and whether the defendant had earlier
opportunities to assert his right of self-representation.†(Id.
at p. 726.) In balance with the Sixth
Amendment right to effective assistance of counsel, the court is required to
“draw every inference against supposing that the defendant wishes to waive the
right to counsel.†(People v. Marshall (1997) 15 Cal.4th 1, 23 (Marshall).) To grant such a
waiver, the trial court must find a defendant’s motion for self-representation to
be unequivocal. (Windham, supra, 19 Cal.3d at pp. 127–128.) As stated in People v. Valdez (2004) 32 Cal.4th 73, 98–99 (
evaluate not only whether the defendant has stated the motion clearly, but also
. . . . the defendant’s conduct or words reflecting ambivalence
about self-representation . . . . A motion for self-representation
made in passing anger or frustration, an ambivalent motion, or one made for the
purpose of delay or to frustrate the orderly administration of justice may be
denied.†(Marshall, supra, 15 Cal.4th at p. 23.) However, if the request is both timely and
unequivocal, the trial court must grant a defendant’s motion for self-representation
without concern for the wisdom of such a decision. (Windham,
at pp. 127–128.)
A
reviewing court must give “ ‘ “considerable weight†’ †to
the trial court’s exercise of discretion.
(People v. Hall (1978) 87 Cal.App.3d 125, 132.) This discretion is extensive. (People
v. Hardy (1992) 2 Cal.4th 86, 196.) We
presume the court knows and correctly applies the law. (People
v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds in
Cal.4th 1046, 1069, fn. 13.)
Defendant
contends the trial court erroneously denied his Faretta motion in violation of his federal constitutional right to
self-representation.
Defendant
first argues his Faretta request was
unequivocal. His claim is
straightforward: because he plainly stated the words, “I want to make a
request was unequivocal. We disagree.
Our
Supreme Court in Marshall stated: “It is not only the stability
of judgments that is at stake . . . when we require a defendant to
make an unequivocal request for self-representation. The defendant’s constitutional right to the
effective assistance of counsel also is at stake.†(Marshall,
supra, 15 Cal.4th at pp. 22–23.) In
order to protect this fundamental right, the United States Supreme Court specifically
instructed the trial courts to ascertain “whether the
defendant truly desires to represent himself or herself.†(Id.
at p. 23.) Apart from the defendant’s
clear statement of the Faretta
motion, the court must consider the totality of his words and conduct reflecting
ambivalence about self-representation. (
A
motion for self-representation made “in passing anger or frustration†may be
denied. (Marshall, supra, 15 Cal.4th at p. 23.) Defendant’s original statement, “I want to
make a Faretta motion,†was made in close
conjunction with his complaint regarding the prosecutor’s “squeaky voice.†So ambiguous was his statement, the trial
court was forced to clarify: “THE COURT:
Based upon the record before me now and
the timing of the motion and the reasons that you give, you are tired of
listening to the prosecutor?†While defendant then denied his annoyance factored
into his request, his full statement reflects frustration rather than a fully
considered desire for self-representation.
Defendant’s
comments to the court also suggest he lacked basic knowledge of what
self-representation would entail. The
trial court had to repeatedly explain to defendant the realities of his
proposed motion. He admitted his own
confusion, stating, “Maybe I have it mixed up,†but nonetheless requested the
court proceed to consider his Faretta
motion. Defendant’s queries about
“get[ting] some help to help me guide through the system†combined with his complaints
to the court regarding his trial counsel tend to support the trial court’s
intuition that defendant’s interest in bringing the Faretta motion was to be rid of his attorney rather than a sincere and
contemplated desire to represent himself. (People
v. Scott (2001) 91 Cal.App.4th 1197, 1205.) Defendant’s confusion and his focus on
dissatisfaction with Andrews are also sufficient grounds to find his
p. 1205.)
Defendant
complains the trial court “precluded [him] from making his Faretta request more unequivocal.â€
He argues the trial court’s first response stating his
any realistic possibility [he] would perceive self-representation as an
available option,’ †thereby preventing him from making an unequivocal
invocation. (See People v. Dent (2003) 30 Cal.4th 213, 219.) This assertion ignores the entirety of the
trial court’s discussion of defendant’s Faretta
motion. Following the challenged
comment, the trial court engaged defendant in lengthy conversation to make
certain he understood what a Faretta
request entailed. Reasonably deducing
defendant might be dissatisfied with his representation, the trial court offered
him an in camera Marsden hearing on
the spot so defendant could freely voice his concerns regarding defense counsel.
Upon its denial of the
defendant it would next turn to consideration of his Faretta motion. We find the
trial court’s management of defendant’s Faretta
motion provided abundant opportunity for defendant to unequivocally state his
request for self-representation.
Defendant next contends his
motion would have been considered timely under the interpretation of Faretta applied in certain federal
appellate courts. In the event of any
discrepancy in the application of the United States Supreme Court’s precedents
regarding self-representation, however, we are bound to follow our own high
court’s rulings. (People v. Burton, supra, 48 Cal.3d at p. 854.)
Defendant
correctly points out that the California Supreme Court has not fixed any set
time (People v. Clark (1992) 3
Cal.4th 41, 99–100; Windham, supra,
19 Cal.3d at p. 128), however as defendant concedes, California precedent firmly
supports the trial court’s finding that defendant’s Faretta motion was untimely because it was submitted after trial
had begun. (See People v. Clark, at pp. 99–100 [before jury selection, while
pretrial motions were being heard]; People
v. Hamilton (1985) 41 Cal.3d 408, 419–421 [motion made during pretrial
proceedings on motion to suppress and again during jury selection];
at pp. 1204–1205 [four days before trial]; People
v. Rudd (1998) 63 Cal.App.4th 620, 624–626 [three calendar days before
trial]; People v. Ruiz (1983) 142
Cal.App.3d 780, 789 [six calendar days prior to trial]; People v. Morgan (1980) 101 Cal.App.3d 523, 531 [just before jury
selection].)
Relying
chiefly on a footnote in Windham,
quoted above, defendant contends his Faretta
motion was nevertheless timely because his “trial clearly had not begun in any
practical sense†and there was no evidence he intended to request a
continuance. But our Supreme Court in
when a trial begins. It held that in
order to invoke the constitutionally mandated unconditional right of
self-representation, a defendant in a criminal trial must assert that right
within a reasonable time prior to
trial. (Windham, supra, 19 Cal.3d at pp. 127–128.) Defendant readily admits he made his request
after his case had been called to trial.
We
also question defendant’s assertion there was no evidence in the record that he
“was going to request a continuance.†Defendant
not only stated an intent to introduce testimony from 40 to 50 clients and 50
members of Narcotics Anonymous, but he also made it plain that he would require
a private investigator to locate these individuals. That defendant did not expressly request a
continuance does not mean a postponement of trial would not be necessary. We find defendant’s Faretta motion was untimely and therefore falls into the realm of
cases appropriately addressed “to the sound discretion of the trial court.â€
In
exercising its discretion, the trial court should consider (1) the quality of
counsel’s representation, (2) the defendant’s prior proclivity to substitute
counsel, (3) the reasons for the request, (4) the length and stage of the
proceedings, and (5) the disruption or delay which might reasonably be expected
to follow the granting of such a motion. (People v. Barnett (1998) 17 Cal.4th 1044,
1104–1105; People v. Nicholson (1994)
24 Cal.App.4th 584, 591.) A review
of these factors in defendant’s case convinces us that the trial court did not
abuse its discretion in denying his belated Faretta
request.
The
trial court appropriately weighed the first three factors relating to defense
counsel. After entertaining three
separate Marsden hearings at
defendant’s behest, the court determined the “quality of [defense counsel
Andrews’] representation†to be “excellent.†Defendant himself referred to Andrews as a
“great†attorney, but insisted their relationship was “not a good fit.†The second factor, defendant’s proclivity to
substitute counsel, is well supported by the record. Prior to his Faretta motion, defendant sought to discharge both of his appointed
defense attorneys, Attorney Andrews on two separate occasions. Defendant stated no additional reason for his
with Andrews. The trial court explored
these issues with defendant in some detail in the July 12, 2011
that the premise for defendant’s motion was groundless.
The
length and the stage of the proceedings also militated against defendant’s
at pp. 1104–1105.) Pretrial proceedings took
more than three years to complete. During
this time, defendant requested and was granted continuances on six separate
occasions. As defendant’s trial at long
last drew near, he twice attempted to discharge Andrews. He offered no justification for his delay,
failing to adequately explain why he waited until the second day of trial to
bring his Faretta motion. In conjunction with defendant’s history of
continuance requests and motions to discharge counsel, the trial court could
reasonably surmise the object of defendant’s Faretta motion was delay.
As
to the final Windham factor, the
trial court correctly pointed out the likelihood that substantial disruption or
delay would result from defendant’s last minute self-representation. Defendant’s desire to pursue many dozens of
unnamed and effectively unknown witnesses presented a logistical nightmare that
would surely occasion an undetermined amount of delay. The trial court noted defendant presented no
evidence to indicate “he would be able to proceed expeditiously with the trial
on his own.â€
In
our view, the trial court did not abuse its discretion in denying defendant’s
B. Vandalism/Substantial Evidence
In
the alternative, defendant contends there is insufficient evidence to support
his felony vandalism conviction.
In
reviewing a criminal conviction challenged on the basis of insufficient
evidence, we “ ‘ “must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.†’ †(People
v. Streeter (2012) 54 Cal.4th 205, 241.) The court’s role on appeal is limited. “[W]e are bound to give due deference to the
trier of fact and not retry the case ourselves.†(People
v. Sanchez (2003) 113 Cal.App.4th 325, 330.) The relevant inquiry before the court is
whether there is substantial evidence to support the conclusion of the trier of
fact, not whether guilt is established beyond a reasonable doubt. (People
v. Mosher (1969) 1 Cal.3d 379, 395.)
To
sustain a conviction for vandalism under section 594, it must be proven that a
defendant (1) maliciously (2) damaged or destroyed (3) any real or personal
property not his or her own. (§ 594, subd. (a).) If the resulting damage exceeds $400, the
offense rises to the level of a felony. (§594,
subd. (b)(1).)
Defendant
argues there is insufficient evidence in the record to support the jury’s
implicit finding that he slashed the eight tires on the two vehicles belonging
to Celoni. According to defendant, his
conviction must be reversed because there “was no direct evidence it was he who
vandalized the tires.†He points to a
lack of eyewitness testimony, fingerprint evidence, or physical evidence
connecting him to the incident or to the scene. Defendant further contends the circumstantial
evidence presented at trial “merely showed he was the ‘most likely suspect.’ â€
While we agree there is no direct
evidence, “ ‘Whether the evidence presented at trial is direct or circumstantial,
. . . the relevant inquiry on appeal remains whether any reasonable
trier of fact could have found the defendant guilty beyond a reasonable doubt.’ â€
(People
v. Bloom (1989) 48 Cal.3d 1194, 1208, italics omitted.)
The
relevant facts are undisputed. Uncontroverted
evidence showed, at the time the vandalism occurred, defendant was engaged in a
course of conduct intended to terrify and intimidate Celoni. Defendant exhibited a particular fixation with
Celoni’s vehicles, beginning with his statements and conduct at the divorce
hearing on April 9, 2008. As testimony
revealed, at this hearing, defendant became enraged when the Mercedes SUV he coowned
with Celoni was placed in her exclusive custody. He told the court that all he wanted was his
truck and then stormed out of the courtroom. Two days later he left Celoni a threatening
voicemail which jurors might have reasonably viewed as a reference to the
vehicles: “I’m taking everything from
you that you took from me.†On April 14,
Celoni found all eight tires from the two vehicles had been slashed overnight
in front of her home. In a voicemail
left the following day, defendant told Celoni, “Now you have everything,†and
in an additional voicemail taunted her, again referring to the SUV: “You said fuck it, I’m taking the truck
. . . and I’m disrespecting you.†On the same day, defendant approached Celoni’s
car while she was at work, leaving photos of Celoni’s daughter and grandchild
on the car and calling her to let her know what he had done.
As
the preceding facts make plain, over the course of this week, defendant’s anger
regarding Celoni and the Mercedes SUV did not abate. Instead, the jury could have reasonably
perceived in defendant’s conduct a pattern of escalating attempts to harm
Celoni by leaving frightening verbal messages, vandalizing her property, and
menacing her at her workplace, all culminating in his attempted murder of
Celoni at her home during the early morning hours of April 16, 2008.
We
apply the substantial evidence test. “ ‘[T]he
relevant question is 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.’ †(People
v. Staten (2000) 24 Cal.4th 434, 460, italics omitted.) We must presume in support of those findings
the existence of every fact that one could reasonably deduce from the evidence.
(People
v. Johnson (1980) 26 Cal.3d 557, 576.)
Even
where the evidence is circumstantial, if there is substantial evidence to
support conviction, “ ‘ “ ‘the opinion of the reviewing court
that the circumstances might also be reasonably reconciled with a contrary
finding does not warrant a reversal of the judgment.’ †’ †(People
v. Holt (1997) 15 Cal.4th 619, 668.) We may not set aside a true finding for insufficiency of the evidence unless it appears that under no theory presented is there
sufficient evidence to support it. (See
745, 755.)
We
believe this evidence does more than, as defendant contends, “form the basis
for a strong suspicion of [defendant’s] guilt.â€
We may not be swayed by the absence of certain forms of evidence, such
as eye witness testimony or fingerprints, but instead are compelled to review
the evidence actually presented at trial. (People
v. Rodriguez (1999) 20 Cal.4th 1,
12 [appellate court “failed
to view that evidence in the light most favorable to the judgment†when it
“focused on what it found lacking in the prosecution’s case†rather than
contrary inferences the jury may have drawn].)
We find the testimony of Celoni
and other evidence presented at trial to be of reasonable, credible, and solid
value. In our view, the accumulated
circumstances—including defendant’s threatening behavior, his protracted anger
regarding the Mercedes SUV, his violence toward Celoni, and his readiness to
follow through with his threats—sustain a reasonable inference defendant
slashed the tires on Celoni’s vehicles. In
finding the evidence sufficient to justify such an inference, “ ‘ “it is the jury, not the appellate court[,] which must be convinced
of the defendant’s guilt beyond a reasonable doubt.†’ †(Id.
at p. 11.) We affirm the jury’s
conviction on the charge of felony vandalism.
III. DISPOSITION
The
judgment is affirmed.
_________________________
Margulies,
Acting P.J.
We concur:
_________________________
Banke, J.
_________________________
Sepulveda, J.
name="_ftnref3" title="">*
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code.
name="_ftn2" title="">[2] People v. Marsden (1970) 2 Cal.3d 118 (Marsden) (holding a defendant has the right to discharge appointed
counsel upon a showing of ineffective representation).
