P. v. Moreland

Filed 10/5/06 P. v. Moreland CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Kathryne Ann Stoltz, Judge. Reversed, modified and affirmed.

Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, and Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Jonathan Moreland was convicted, following a jury trial, of one count of vandalism in violation of Penal Code[1] section 594, subdivision (a), one count of battery in violation of section 242, one count of vandalism of a dwelling in violation of section 603, and one count of trespassing by injuring property in violation of section 602. The trial court sentenced appellant to state prison for the mid-term of two years for the section 594 vandalism conviction. The court sentenced appellant to 180 days for each of the remaining convictions, and ordered those terms to run concurrently to the vandalism term.

Appellant appeals from the judgment of conviction, contending that the evidence is insufficient to support his conviction on all counts and further contending that the 180 day sentences should be stayed pursuant to section 654. We reverse appellant's conviction for vandalism of a dwelling in violation of section 603. His sentence for trespass by injury in violation of section 602 is ordered stayed pursuant to section 654. We affirm the judgment of conviction in all other respects.

Facts

On August 27, 2003, escrow closed on Tim Messick's purchase of a Sherman Oaks condominium from Judy Comden. Messick arrived at the condo on August 20 at 5:00 p.m., the scheduled time for him to take possession. Comden was still occupying the condo, along with appellant. Comden was physically ill and required the assistance of a wheelchair. Messick decided to return at 6:30 p.m. to allow Comden and appellant more time to pack their belongings.

When Messick returned, he learned that appellant had gone to rent another U-Haul truck. Otherwise, the situation at the condo was mostly unchanged. Comden gave Messick the keys to the condo. Messick left. When he returned, the door was locked. Appellant answered the door and said that he was unable to get another U-Haul truck. He seemed upset. Appellant stated that it was too much to deal with for one day, and that he and Comden "were going to deal with this another time." Messick told appellant that that was not possible because Messick needed to move into the condo. Appellant agreed to let Messick and Messick's girlfriend Christine Whitely help appellant and Comden pack.

At about 10:00 p.m., Messick went toward the master bedroom to continue packing. Appellant stopped him and told him not to go in there because he and Comden had "personal things" in there. Messick told appellant that the condo did not belong to him. Appellant became violent and pinned Messick against the wall with a shopping cart. Appellant acted like he was going to strike Messick. Messick told appellant that he could move out or Messick would call the police. Appellant told Messick to go ahead and call the police. Messick and Whitely left to call the police.

At about midnight, Messick and Whitely returned to the condo and spoke with police. Appellant and Comden told the police that they needed two more hours to pack their belongings and move out. Messick and Whitely left. There was no one walking around the gated condo complex when they left.

Messick and Whitely returned about 2:00 a.m. Police came with them. No one was moving around the condo complex. Appellant and Comden were gone. The condo was damaged. There was broken glass, two knives stuck in the kitchen cabinets, urine and water on the carpets, garbage on the floor, and feces on the bathroom floor and wall. The kitchen was flooded with an inch of water.

At trial, appellant and Comden both testified that Messick initiated the physical confrontation with appellant. Comden testified that she broke a drinking glass on the floor and did not clean it up. Appellant admitted that he was responsible for one of the two knives sticking in a kitchen cabinet. The two denied damaging the condo in any other way. When they left the condo at about 12:15 a.m., the condo was clean and undamaged.

Comden also testified that her brother had been living in the condo until about August 23. He still had keys to the condo. There was some hostility between Comden and her brother.

Discussion

1. Sufficiency of the evidence

Appellant contends that there is insufficient evidence to support any of the property related convictions because there is insufficient evidence to show that he caused the damage to the condo.[2] We do not agree.

In reviewing a challenge to the sufficiency of evidence, "the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.)

The standard of review is the same when the prosecution relies on circumstantial evidence to prove guilt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. 'If the circumstances reasonably justify the trier of fact's findings, 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. Bean (1988) 46 Cal.3d 919, 932-933.)

Here, appellant had both a motive and an opportunity to damage the condo. Appellant was upset over having to leave the condo and had had a fight with Messick earlier in the evening. Appellant and Comden were the only two people in the condo when Messick left at about midnight. There was no one walking around the gated condo complex when Messick left. There was no sign of forced entry when he returned.

The only reasonable inference from this evidence is that appellant or Comden damaged the condo. Since Comden was physically ill and required the assistance of a wheelchair, the most reasonable inference is that appellant was the one who physically inflicted the damage to the condo.

Appellant contends that he and Comden left the condo at 12:15 a.m., and that someone could have entered the condo between their departure and Messick's arrival. He points out that Comden testified that her brother had keys to the condo and a motive to damage the condo.

We do not find appellant's theory of the case convincing. There is nothing to suggest that Comden's brother was anywhere near the condo that night. There was also no apparent reason for Comden's brother to damage the condo after Comden moved out, since the brother's quarrel was with Comden, not the condo's new owner. The brother knew that Comden and appellant were moving out that day.

Further, since the circumstances of this case reasonably justify the jury's findings that appellant committed the crimes, even if we believed that the circumstances of this case might also be reasonably reconciled with a finding that appellant did not commit the crimes, our belief would not warrant a reversal of the judgment. (People v. Bean, supra, 46 Cal.3d at pp. 932-933.)

Appellant's reliance on People v. Johnson (1984) 158 Cal.App.3d 850, People v. Flores (1943) 58 Cal.App.2d 764 and In re Leanna W. (2004) 120 Cal.App.4th 735 to show error is misplaced. In Johnson and Flores, the Court of Appeal found insufficient evidence where a single print connected each defendant to a crime, and the defendant was acquainted with the criminals, but nothing more connected the defendant to the crime. In both cases, the defendant had an opportunity to leave the fingerprint without necessarily committing the crime. In both cases, there were others more closely linked to the crime than the defendants. In Johnson, the container of drugs with Johnson's fingerprint was found hidden in a friend's house. In Flores, a friend was seen in the stolen car shortly after the theft occurred, and later admitted stealing the car. Appellant's situation in this case is much closer to the situation of the friends in Johnson and Flores than to the defendants in those cases. In Leanna, another case reversed for insufficiency of the evidence, it was undisputed that there were other people in the house with the minor at the time the theft occurred. Here, the only person other than appellant known to be present in the condo immediately before the vandalism was Comden. Given her physical condition, it was more than reasonable for the jury to infer that she was not the one who physically inflicted damage to the condo.

2. Vandalism

Appellant contends, and respondent agrees, that his conviction for vandalism of a dwelling place in violation of section 603 must be reversed because there was no evidence that he forcibly entered the condo without the consent of the owner. We agree as well.

Section 603 provides in pertinent part that every person "who forcibly and without the consent of the owner . . . enters a dwelling house . . . and who damages, injures or destroys any property of value" is guilty of a misdemeanor. There is no evidence that appellant forcibly entered the condo. Appellant had a key to the condo and was inside the condo when Messick arrived to take possession.

3. Concurrent sentences

Appellant was sentenced to prison for his section 593 vandalism conviction. Sentences for his other three offenses were imposed concurrently. Appellant contends that the concurrent sentences should have been stayed pursuant to section 654 because he had a single objective, "to cause harm to the property appellant was forced to leave." Respondent agrees that the trespass sentence should be stayed. We agree as well. We see no error in the imposition of a concurrent sentence for the battery conviction, and we have reversed the conviction for vandalism of a dwelling in violation of section 603, so any argument concerning the sentence for that conviction is moot.[3]

Section 654 prohibits punishment for two offenses arising from the same act or where an indivisible course of conduct violates more than one statute. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)

A trial court has broad discretion to determine whether section 654 applies to a given series of offenses, and its findings must be upheld on appeal if there is any substantial evidence to support them. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Here, the trial court did not make any express findings about appellant's intent in committing the crimes.

Appellant's battery and vandalism offenses did not arise from the same act. Appellant was convicted of battery on the basis of his act of pushing Messick with a shopping cart. His acts of vandalism occurred hours later, when Messick was not present. Further, appellant's objective in the battery was to harm Messick, while his objective in the vandalism was to damage Messick's property. Thus, nothing in section 654 precludes separate punishment for those two offenses.

Appellant does appear to have had the same intent and objective in committing vandalism and trespass by injuring, to cause damage to Messick's property. Thus, the sentence for the trespass by injuring conviction should be stayed.

Disposition

Appellant's conviction for vandalism of a dwelling in violation of section 603 is reversed. His sentence for trespass by injury in violation of section 602 is ordered stayed pursuant to section 654. The judgment of conviction is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] Appellant actually argues that there is insufficient evidence to support all of his convictions because there is insufficient evidence that he caused damage to the condo. Property damage is not an element of appellant's battery conviction, and so we reject any claim appellant may be asserting concerning the sufficiency of the evidence to support the battery conviction.

[3] We note that appellant had already served the three concurrent 180-day sentences by the time of sentencing.