P. v. Dalporto

Filed 8/29/07 P. v. Dalporto CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Paul Dalporto appeals from a judgment convicting him of misdemeanor vandalism, a lesser included offense of the charged felony vandalism. He contends the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of tampering with a vehicle and on the requirement of jury unanimity. Although we agree with his first contention, we deem the error harmless, and we disagree with the second contention. We shall therefore affirm the conviction.

Factual And Procedural History

In the late afternoon of Friday, April 29, 2005, during a monthly group bicycle ride through the streets of San Francisco, known as Critical Mass, between 500 and 1000 bicyclists proceeded from Justin Herman Plaza at the foot of Market Street, choosing a route as the ride progressed. Officers of the San Francisco Police Department and California Highway Patrol monitored the ride. Two officers followed behind the bicyclists and eight motorcycle officers rode on parallel streets. Both the bicycle riders and the accompanying officers controlled traffic for the moving mass, which, like a parade, was allowed to pass through intersections without regard to traffic signals. Some of the riders performed traffic control by forming a line in front of intersecting traffic, remaining in the intersection until the larger group of cyclists passed through the intersection.

At approximately 8:20 p.m., George Kolombatovich was driving home from work. As he prepared to turn left from Market Street onto Church Street, he was surrounded by at least one hundred people, many of them riding bicycles. Several cyclists, including defendant, stood with their bicycles in front of his car. Kolombatovich allowed his car to continue slowly into the intersection as the crowd pounded and rocked his car. Someone hit and broke the right passenger window of the car, and broken glass cut Kolombatovichs hand. As Kolombatovich continued forward, some of the crowd moved out of his way but defendant climbed onto the hood of the automobile, holding his bicycle in front of him. Kolombatovich swerved his car and accelerated through the intersection. At about the same timethe evidence is unclear whether immediately before or after Kolombatovich accelerateddefendants bicycle smashed the car windshield and defendant fell from the car, breaking his ankle in the fall. Kolombatovich stopped when he reached the other side of the intersection and called the police on his cell phone.

San Francisco Police Officer Joseph Robles, who had been following the ride on his motorcycle, arrived at the scene. Paramedics treated defendant on site before transporting him to a hospital. While defendant was in the trauma room, handcuffed to a gurney, Officer Robles questioned and ultimately cited him for vandalism, among other offenses.

An insurance claims adjuster subsequently estimated the cost to repair the hood of Kolombatovichs car at $578.40 and to replace the windshield at $363.28. Defendant was charged with felony vandalism in violation of Penal Code section 594, subdivision (b)(1). At trial, the court instructed the jury that if defendant caused $400 or more of damages to Kolombatovichs car, he could be found guilty of felony vandalism and that, if the damages were less than $400, he could be guilty of only misdemeanor vandalism. The jury found defendant guilty of a misdemeanor violation of the statute. Defendant was sentenced to four days in county jail (satisfied by credit received for time already served), placed on two years unsupervised probation, and ordered to pay $363.28 restitution to Kolombatovich and to perform 100 hours of community service. Defendant timely appealed.

Discussion

1. Auto Tampering as a Lesser Included Offense of Vandalism

California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) Defendant contends the trial court committed reversible error by failing to instruct the jury sua sponte that Vehicle Code section 10852 (misdemeanor tampering with a vehicle or its contents)[1]is a lesser included offense of the Penal Code section 594 vandalism[2] with which he was charged.

A reviewing court employ[s] two alternative tests to determine whether a lesser offense is necessarily included in a greater offense, the so-called elements test and the accusatory pleading test. (People v. Moon (2005) 37 Cal.4th 1, 25.) The elements test examines whether all the legal elements of the lesser crime are included in the definition of the greater crime, such that the greater cannot be committed without committing the lesser.(Ibid.) All parties acknowledge that under the elements test auto tampering is not a necessarily included lesser offense of vandalism. Penal Code section 594 vandalism may be committed with respect to any property, but tampering in violation of Vehicle Code section 10852 may occur only with respect to a vehicle or its contents.

The accusatory pleading test examines whether the accusatory pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime. (People v. Moon, supra, 37 Cal.4th at pp. 25-26.) Under the accusatory pleading test a court determines necessary offense inclusion based on the charging instrument alone, ignoring evidence adduced at trial. (People v. Montoya (2004) 33 Cal.4th 1031, 1036.)

The information in this case charged that defendant . . . did willfully, unlawfully and maliciously deface with graffiti and other inscribed material, damage and destroy real and personal property, to wit: 2000 Honda Civic, CA License Plate No. 4KAH420, not his/her own, . . . said damage being over Four Hundred Dollars ($400.00). Proof of the allegation that defendant damaged the Honda Civic automobile necessarily proves that defendant injure[d] a vehicle as required for a violation of Vehicle Code section 10852. To injure a vehicle is also to damage it. (Blacks Law Dict. (8th ed. 2004) p. 801, col. 1; see CALCRIM No. 1821.)

The Attorney General contends that auto tampering is not a lesser included offense of vandalism under the accusatory pleading test because lack of consent is an element of auto tampering but the information did not allege that defendant did not have the owners consent, since lack of consent is not an element of vandalism. The Attorney General cites In re Rudy L. (1994) 29 Cal.App.4th 1007, 1013 (Rudy L.) for the proposition that lack of consent is not an element of Penal Code section 594 vandalism. Rudy L., however, held only that lack of consent is not an element that the prosecution has the burden of proving to establish the offense. The decision recognizes that consent is a defense and explicitly observes that proof of consent would negate the malice that is required for the commission of vandalism. (Id. at p. 1012.)[3] Thus, by proving that defendant maliciously damaged Kolombatovichs vehicle, as the information alleged and section 594 requires, the prosecution necessarily proved that defendant acted without the owners consent. Had Kolombatovich consented, defendants conduct would not have been malicious.[4]

Similarly, if defendant acted maliciously as charged, he necessarily satisfied the mental element required to establish a violation of Vehicle Code section 10852 tamperingwillfulness. The word willfully, when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage. (Pen. Code, 7(1).)  The terms willful or willfully, when applied in a penal statute, require only that the illegal act or omission occur intentionally.   (People v. Atkins (2001) 25 Cal.4th 76, 85.) Malice implies . . . willfulness. (22 C.J.S. (2006) Criminal Law,  48, pp. 81-82.) Malice  calls for more than mere intentional harm without justification or excuse; there must be a wanton and wilful (or reckless) disregard of the plain dangers of harm, without justification, excuse or mitigation. [Citation.] Such a state of mind betokens that general readiness to do evil which constitutes moral turpitude. (People v. Campbell (1994) 23 Cal.App.4th 1488, 1493.) Thus, if defendant acted maliciously he necessarily acted willfully.[5]

Hence, proof of the charged vandalism offense necessarily proved commission of the lesser tampering offense. (People v. Moon, supra, 37 Cal.4th at pp. 25-26.) Proof that defendant maliciously damaged the victims automobile in violation of Penal Code section 594 necessarily proves that defendant violated Vehicle Code section 10852 by willfully injuring the victims automobile without the victims consent. A court must instruct sua sponte on lesser included offenses that are substantially supported by the evidence. (People v. Breverman, supra, 19 Cal.4th at p. 162.) In this case the evidence was such that the jury could reasonably have found that defendants conduct was willful but not malicious had it been instructed on the lesser offense. Defendant testified that he was acting as a corker, one who stands in an intersection through which bicycles are passing, attempting to stop cars so that they do not collide with the bicyclists. Although there was no evidence that this was an officially deputized function, there was testimony that the City of San Francisco allows the Critical Mass riders a great degree of control over the monthly rides. Defendant testified that he jumped onto Kolombatovichs car to avoid being hit by the car and that he feared for his safety. The evidence can be understood to indicate that defendants bicycle hit the windshield of Kolombatovichs automobile only after the car lurched forward. On this record the jury might have found the circumstances such that defendants conduct, though willful, was not malicious.

Nonetheless, although it was error not to have instructed on the lesser auto tampering offense, we cannot say that the error was prejudicial under the rigorous test of People v. Watson (1956) 46 Cal.2d 818, 836, that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. [I]n a noncapital case, error in failing sua sponte to instruct . . . on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under Watson. A conviction of the charged offense may be reversed in consequence of this form of error only if, after an examination of the entire cause, including the evidence (Cal. Const., art. VI,  13), it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (People v. Breverman, supra, 19 Cal.4th at p. 178.)

Defendant testified that he climbed onto the victims car and that he intentionally hit the windshield with his bicycle to just get a shot at him, this guy who was already running me over. Defendant asserted and the jury was instructed on the defenses of necessity and self-defense, but the jury necessarily rejected both defenses. The jurys verdict that defendant was guilty of only a misdemeanor violation of Penal Code section 594 despite the undisputed evidence that the combined total damages to the hood and windshield of the victims car exceeded the $400 threshold required for a felony violation does not necessarily reflect a compromise verdict. The jury may have found that others in the crowd caused the damage to the hood of Kolombatovichs car and that defendant was responsible only for smashing the windshield, the cost of repairing which was less than $400. Although the jury might have reached a different conclusion if properly instructed, we are not persuaded that it is reasonably probable that it would have done so, or that the failure to have instructed on the lesser misdemeanor resulted in a miscarriage of justice. (People v. Breverman, supra, 19 Cal.4th at p. 176.)

2. Unanimity Instruction

It is axiomatic that a criminal conviction requires a unanimous jury verdict. (People v. McNeill (1980) 112 Cal.App.3d 330, 335.) If there is evidence that a defendant committed more than a single unlawful act charged in the accusatory pleading, the prosecution must either elect which of the several acts constitutes the violation or the jury must be informed that it  must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.  (People v. Thompson (1995) 36 Cal.App.4th 843, 850.) The rule does not apply if there is evidence of only a single charged offense. (People v. Madden (1981) 116 Cal.App.3d 212, 216, fn. 4.) And, under the so-called continuous conduct exception, [t]he unanimity instruction is not required when the acts are so closely connected in time as to form part of one transaction. (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) The continuous conduct exception applies only 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. (Ibid., italics added.)

Defendant contends the trial courts failure to give a unanimity instruction sua sponte mandates the reversal of [his] conviction. He argues that although the information charged him with only one count of vandalism, the evidence showed multiple discrete and distinguishable actsstanding on the hood of the car and hitting its windshield with his bicycle. Moreover, he argues that he offered different defenses to justify these acts so that the continuous conduct exception does not apply.

Defendant was convicted of only the single charged count of vandalism. (See People v. Madden, supra, 116 Cal.App.3d at p. 216, fn. 4.)A significant separation of acts by time or place is generally required for a sequence of conduct to be considered separate acts. (Compare People v. Ruiz (1957) 155 Cal.App.2d 59, 61 [evidence of several items of marijuana supported a single count of possession of marijuana, since the single count of possession did not involve separate acts in any real and practical sense, and occurred at one time and place] with People v. Crawford (1982) 131 Cal.App.3d 591 [conviction for single charge of possession of a firearm by an ex-felon required a unanimity instruction because each of four guns found in a search could have belonged to others]; People v. Melhado (1998) 60 Cal.App.4th 1529, 1532-1535, 1539 [single charge of making a terrorist threat required unanimity instruction because evidence showed defendant made two such threats, either of which could have been charged as a separate offense and jury was not told on which the prosecution relied].) Defendants conduct here took place over the space of a few minutes. Climbing onto the hood of the victims car and smashing the bicycle into the windshield did not consist of separate acts in any real and practical sense. (See People v. Ruiz, supra, 155 Cal.App.2d at p. 61.) Just as there are [not] separate crimes of battery if the actor throws a right-hand punch to his victim and immediately follows it with a left-hand punch, defendants twin insults to the car were not separate crimes of vandalism. (People v. McIntyre (1981) 115 Cal.App.3d 899, 910; but see People v. Goldstein (1982) 130 Cal.App.3d 1024, 1039-1041.) Separate acts may also result in but one crime if they occur within a relatively short time span. (People v. Epps (1981) 122 Cal.App.3d 691, 702.)

Defendants contention that the different defenses he offered invoked the exception to the continuous conduct exception is without merit, since the two defenses he advanced are essentially the same. Defendant asserted both a necessity defense (for climbing on the car) and self-defense (for hitting the windshield with the bicycle). Both necessity and self-defense (or defense of property) have the same internal structure: they are justifications in which predicate triggering conditions permit necessary and proportional response. (1 Robinson, Criminal Law Defenses, supra, 24(a), p. 86.) Because of their essential equivalence, the two defenses do not bar application of the continuous conduct exception. (See People v. Stankewitz, supra, 51 Cal.3d at p. 100.)

The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a particular crime [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate when conviction on a single count could be based on two or more discrete criminal events, but not where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.  (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.) Under even the most favorable interpretation of defendants conduct, climbing onto the victims car and hitting the windshield with his bicycle were not discrete criminal events. Defendant was not entitled to a unanimity instruction. (Id. at p. 1135.)

Disposition

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Horner, J.*

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Analysis and review provided by Santee Property line attorney.

[1] Vehicle Code section10852 provides, No person shall either individually or in association with one or more other persons, willfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner.

[2] Penal Code section 594, subdivision (a) provides, Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own . . . is guilty of vandalism: [] (1) Defaces with graffiti or other inscribed material. [] (2) Damages. [] (3) Destroys. [] Whenever a person violates this subdivision with respect to . . . property belonging to any public entity . . . it shall be a permissive inference that the person neither owned the property nor had the permission of the owner to deface, damage, or destroy the property.

Penal Code section 594, subdivision (b) provides, inter alia, that the offense is a felony if the amount of defacement, damage, or destruction is $400 or more, and a misdemeanor punishable by up to one year in a county jail and a $1,000 fine if the damage is less than $400. Violation of Vehicle Code section 10852 is punishable by up to six months in county jail and a fine of $1,000. (Veh. Code, 40000.9, 42000; Pen. Code, 19.)

[3] The unquestioned accuracy of this proposition is confirmed by the second paragraph of Penal Code section 594, subdivision (a), which creates a permissive inference that one who damages government property lacks permission to do so. The existence of such a permissive inference does not convert the affirmative defense into an element that the prosecution must prove (cf. In re Ivey (2000) 85 Cal.App.4th 793, 798-802), but the inference does confirm that the offense is negated if consent is established.

[4] The court instructed the jury with CALCRIM No. 2900, which is derived from Penal Code section 7, subdivision 4 and states that [s]omeone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else. If Kolombatovich had consented to defendants conduct, the conduct would not have been wrongful (see 1 Robinson, Criminal Law Defenses (1984) 66(a), (c-d), pp. 307-313) nor could it be regarded as having been intended to annoy or injure Kolombatovich (ibid.).

[5] Although in People v. McCree (1954) 128 Cal.App.2d 196, 202 the court stated that  [t]he words malicious and intentionally are not synonymous; nor does the one include the other,  the cases cited in McCree state only that an intentional act is not necessarily malicious; they do not state that a malicious act is not necessarily intentional. (See, e.g., In re Levitan (1915) 224 F. 241, 243 [discussing malice and bankruptcy discharge].)

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.