P. v. Shamim

Filed 9/26/07 P. v. Shamim CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Mohammed Shamim was convicted following a jury trial of two felonies and five misdemeanors in connection with his involvement in a fight that started in a shopping mall after he hit a teenaged girl in the face. On appeal, he challenges his conviction for misdemeanor vandalism (which was originally charged as a felony). (Pen. Code,  594.)[1] We conclude that vandalism is a general intent crime, and that defendants conviction was supported by sufficient evidence. Defendant also claims that the trial court erred when it imposed a probation supervision fee without determining his ability to pay the fee. We affirm the judgment, but order the trial court to correct a clerical error in its minute order with respect to the fee.

Factual and Procedural
Background

Because defendant challenges only his conviction for misdemeanor vandalism ( 594count 6), we limit our summary of the evidence adduced at trial to that which is relevant to that conviction. About 5:00 p.m. on December 28, 2005, defendant approached Megan M. (a teenaged minor) and her friend in the Sears store at the Tanforan shopping mall in San Bruno. Defendant was yelling loudly at Megans friend, right up in his face. Defendant then hit Megan in the face with a roll of newspapers. In response to this altercation, an unidentified man (who was a stranger to Megan) pushed defendant into a rack of clothes, and the two men started fighting and hitting each other.

Other people became involved in the fight as well, before mall security guards arrived. Clothes, jewelry, and other items were knocked on the floor. Defendant also hit another woman in the face. At one point defendant was separated from the people with whom he was fighting and the situation appeared under control; however, defendant appeared really hyper and started fighting with two other men.

Apparently during the course of the second part of the fight, defendants face was hit and became bloody. Defendant spit blood in a mall security guards face, and the guard also saw defendants blood on Sears property. A police officer who later arrived on the scene testified that defendant was spitting blood to the sides as police escorted him out of Sears.[2] A Sears loss-prevention agent testified that blood got on Sears clothing and jewelry, which had to be removed from the floor because the items were no longer salable. She testified that the total damage to Sears property was $1,557.89. Various witnesses described defendant as being angry and yelling profanities during the entire fight, until after security guards intervened. Subsequently police officers arrived and placed defendant in a device called the wrap, in order to prevent him from kicking or harming others.

Defendant was charged by information with various crimes, and was found guilty following a jury trial of one count of vandalism ( 594),[3] two counts of battery ( 242), two felony counts of resisting arrest ( 69), and two misdemeanor counts of resisting arrest ( 148, subd. (a)(1)).

The trial court placed defendant on probation for three years, with various terms and conditions, and ordered him to pay a fine. Defendant timely appealed.

Discussion

A.     Vandalism Conviction Supported By Sufficient Evidence.

Defendant argues that his vandalism conviction ( 594) was not supported by substantial evidence. When reviewing a claim of insufficiency of the evidence, we apply the following standard:  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. Catlin (2001) 26 Cal.4th 81, 139.) The evidence must be  reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.  (Ibid.) We further presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (Ibid.)

Defendant agrees that anyone who maliciously defaces with graffiti, damages, or destroys the real or personal property of another is guilty of vandalism. ( 594, subd. (a); see also In re Leanna W. (2004) 120 Cal.App.4th 735, 743.) He also acknowledges that, as defined by the Penal Code, the word  maliciously import[s] a wish to vex, annoy, or injure another person, or an intent to do a wrongful act. ( 7, subd. (4).) Consistent with this statutory language, the trial court instructed the jury with respect to vandalism (pursuant to CALCRIM No. 2900) that [s]omeone acts maliciously when he or she intentionally does a wrongful act or when he acts with the unlawful intent to annoy or injure someone else.[4]

Relying on People v. McCree (1954) 128 Cal.App.2d 196 (McCree) and People v. Campbell (1994) 23 Cal.App.4th 1488 (Campbell), defendant argues that his vandalism conviction was not supported by substantial evidence because the prosecution had to do more than prove that defendant committed a volitional act, and failed to prove that he acted with the intent to annoy, harass, or injure the store. He claims that the [i]ntent required to support a vandalism conviction is intent to harass or annoy the owner of the property or willful and wanton disregard of plain dangers of such harassment or annoyance.

First, we agree with respondent that vandalism is a general intent crime.[5] As our Supreme Court explained in People v. Atkins (2001) 25 Cal.4th 76, 85, in general, the term  malicious, as used in section 7, subdivision 4, does not transform an offense into a specific intent crime. [Citations.] Although the Atkins court was considering whether arson is a general intent crime, and none of the several cases it cited addressed vandalism (id. at pp. 85-86), we conclude that there is likewise nothing in the vandalism statute that required the prosecution to prove that defendant specifically intended to damage Sears merchandise or harm the store. Language that typically denotes specific intent crimes, such as with the intent to achieve or for the purpose of achieving some further act, is absent from [section 594]. . . . A crime is characterized as a general intent crime when the required mental state entails only an intent to do the act that causes the harm; a crime is characterized as a specific intent crime when the required mental state entails an intent to cause the resulting harm. [Citation.] (Id. at p. 86.) Because section 594 does not require an additional specific intent to damage or destroy the personal property of another, but instead requires only an intent to do the act that causes the harm, vandalism is a general intent crime. (Ibid.; see also 4 Erwin et al., Cal. Criminal Defense Practice (2007) Submission to Jury and Verdict, ch. 85, p. 85-63 (rel. 59-7/2007) [defendant charged with act done  maliciously  need have only general intent to commit charged crime].)

However, the act of vandalism must be done maliciously ( 594, subd. (a)), and pursuant to section 7, subdivision (4), that means either with a wish to vex, annoy or injure another person, or an intent to do a wrongful act. (Italics added.) Here, there was sufficient evidence to show that defendant acted maliciously. Defendant repeatedly characterizes his actions that damaged Sears property as accidental, precluding a finding that he acted maliciously. For example, he highlights his trial testimony that he spit blood only because he was choking on it and a security guards testimony that blood was spreading on defendants face because he was talking loudly. Defendants testimony was contradicted by other witnesses accounts of the incident. Several witnesses at trial testified that defendant continued to fight, yell, and spit blood even after several security guards and police officers tried to calm him down. A police officer testified that as he was escorting defendant from Sears, defendant continued to swear and was spitting blood as we were walking out of the Sears Department Store. Defendant himself testified: I spit it [blood] on the floor. We cannot agree that defendants destruction of store property was inadvertent, even if he did not specifically intend to cause harm to Sears.

Neither McCree, supra, 128 Cal.App.2d 196 nor Campbell, supra, 23 Cal.App.4th 1488 compels a different result. McCree held that a conviction for the willful and intentional injury of a public jail (former  606) was not inconsistent with an acquittal for arson, because the elements of the two offenses were not the same. (McCree, supra, at pp. 198, 201-202.) It explained, in a passage cited by defendant, The fact an act was done intentionally or knowingly does not result in the conclusion that it was done maliciously. Moreover, an act willfully done is not necessarily a malicious act. (Id. at p. 202.)  Something more than an intention to do the thing afterwards pronounced as a wrong and inexcusable is necessary to constitute malice.  (Ibid.) To the extent that defendant relies on this discussion for the proposition that the word maliciously means more than merely intentionally, we quote from a case decided nearly 30 years ago: [T]he discussion in McCree, to which defendant alludes, is no more than a lengthy dictum. [Citation.] Moreover, that dictum has been explicitly rejected by one court [citation] and has been thoroughly repudiatedat least by implicationby [four others]. (People v. Tanner (1979) 95 Cal.App.3d 948, 955-956.) Even if the passage was not dictum, it does not support defendants position, because it did not set forth a higher standard of malice than what is set forth in section 7, which specifies that one acts with malice when he or she has an intent to do a wrongful act. (McCree, supra, at p. 202, quoting  7, subd. (4).)

Defendant also relies on Campbell, supra, 23 Cal.App.4th at pages 1492-1493, which held that defendant was properly impeached with a conviction for felony vandalism, because it evinces moral turpitude. Campbell noted that section 594, subdivision (a) still follows the language of the original malicious-mischief statutes [in Californias original 1872 Criminal Code] in specifying malice as the mens rea of the offense. It is generally held that [the term malice in such statutes] 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. [6] (Id. at p. 1493, quoting 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against Property,  678, p. 762.) The only authorities cited in Witkin (which was quoted by Campbell) for this proposition are textbooks that address primarily general common law, and not the California Penal Codes definition of malice in section 7, subdivision (4). (Perkins & Boyce, Criminal Law (3d ed. 1982) pp. 408-413 (Perkins); 4 Torcia, Whartons Criminal Law (14th ed. 1981)  486, pp. 89-92 (Wharton).) Perkinss discussion of the definition of malice does not address a single California case or statute. (Perkins, supra, pp. 408-413.) Although Wharton cites section 594, it does not address a single California case or refer to section 7, subdivision (4). (Wharton, supra, pp. 89-92 & fn. 33.)

In sum, there was sufficient evidence that defendant spat blood on Sears property either with a wish to vex, annoy, or injure another, or with an intent to do a wrongful act. ( 7, subd. (4).) Section 594 does not require that defendant specifically intend to harm the store. (Perkins, supra, at pp. 408-413 [rejecting as quite illogical the concept that a malicious-mischief statute such as vandalism requires that the prosecution prove that an individual harbors ill will or resentment toward a property owner]; 4 Torcia, Whartons Criminal Law (15th ed. 1996)  470, pp. 60-61 [courts interpreting malice in traditional legal sense hold that it is unnecessary that defendant harbor ill will toward property owner].) Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. (People v. Catlin, supra, 26 Cal.4th at p. 139.)

B.     No Error In Ordering Probation Supervision Fee.

Defendant also argues that the order requiring him to pay a probation fee should be stricken, because the trial court did not comply with the procedural requirements of section 1203.1b, and because the record does not contain evidence of his ability to pay the fine.[7] We decline to strike the fee.

The probation department recommended that defendant pay a probation fee pursuant to section 1203.1b, not to exceed $75 per month. The probation officers report contained a brief summary of defendants employment history. With respect to defendants ability to pay restitution, the report stated, The defendant has a history of employment and is capable of continuing to work in the future. He should have the ability to pay restitution in this case. The probation department did not, however, specifically address defendants ability to pay a supervised probation fee. Consistent with the probation departments recommendation, the trial court ordered defendant to pay a supervised probation fee not to exceed $75 per month as directed by the probation officer. Defendant did not object to the fee. The record does not reveal what action, if any, the probation officer took to set a specific monthly fee, or the manner of payment.

When a defendant is granted probation or given a conditional sentence, a probation officer shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision, a payment amount, and a manner of payment. ( 1203.1b, subd. (a).) The officer shall inform the defendant that the defendant is entitled to a hearing . . . in which the court shall make a determination of the defendants ability to pay and the payment amount. (Ibid.) Where a defendant fails to waive the right to a hearing, the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made. The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer. ( 1203.1b, subd. (b).)

Defendant argues that the trial court did not follow the statutory procedure set forth in section 1203.1b, because neither the probation department nor the trial court conducted an evaluation of defendants ability to pay the cost of probation supervision. We agree with respondent that the determination of an exact fee was to be addressed later (after sentencing), and defendants challenge to the fee is therefore premature. The trial court ordered defendant to pay a supervised probation fee not to exceed $75 per month as directed by the probation officer. (Italics added.) This statement indicates that the assessment of defendants ability to pay, as well as the determination of a specific fee, would occur at a later time. This is consistent with other portions of the defendants sentence where the trial court ordered further action by the probation officer, including the conditions of probation that defendant pay a $220 restitution fine as directed by the probation officer and pay restitution to Sears [and various individual victims] as directed by the probation officer. (Italics added.)

Defendant argues that respondent mischaracterizes his argument, because the trial court failed to determine whether he had the ability to pay any fee. Defendant is of course not precluded from requesting a hearing regarding any subsequent determination that the probation department makes regarding his ability to pay a fee. (People v. DiMora (1992) 10 Cal.App.4th 1545, 1549 [if defendant is dissatisfied with probation officers determination of amount of restitution, his remedy is to move for a hearing to dispute it].) If he is still dissatisfied, he may separately appeal an order setting the fee. (Id. at pp. 1549-1550;  1237, subd. (b) [defendant may appeal order after judgment that affects his substantial rights].)

As a result of our holding that defendants challenge to his supervised probation fee is premature, we need not address the parties arguments regarding whether this issue was waived. (Cf. People v. Valtakis (2003) 105 Cal.App.4th 1066, 1075 [failure to object to the trial courts imposition of a specific payment amount pursuant to section 1203.1b waives defendants right to appeal the statutory violation].)

Defendant argues in the alternative that we should order the trial court to correct the minute order from the sentencing hearing to conform to the oral judgment of the trial court, because the minute order erroneously states that defendant shall pay a supervised probation fee in the amount of $75.00 per month, rather than setting $75 as a maximum. Respondent concedes that the minute order should be corrected. We therefore order that the trial court correct its minute order of May 15, 2006, to accurately reflect that defendant was ordered to pay a supervised probation fee not to exceed $75 per month as directed by the probation officer. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order correction of clerical errors to accurately reflect oral judgment of sentencing court]; Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 62-63 [correcting undisputed clerical error].)

Disposition

The judgment is affirmed, with the modification noted in the preceding paragraph. The trial court is ordered to modify its minute order of May 15, 2006, to reflect the fact that defendant was ordered to pay a supervised probation fee not to exceed $75 per month as directed by the probation officer.

_________________________

Sepulveda, J.

We concur:

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Ruvolo, P.J.

_________________________

Reardon, J.

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[1] All statutory references are to the Penal Code.

[2] Defendant testified that he had blood in his mouth and asked the police officer who handcuffed him whether he could please spit the blood out on the floor, but that the officer told him that he could not, and pinned his arm on the back of defendants neck so that he was choking on his own blood. He said that he spit on the floor, which upset the police officer. The officer who handcuffed defendant testified that had defendant told him he was choking on blood, he would have tried to assist him. Defendant testified that at some point a spit bag was placed on his head.

[3] This count was charged in the information as a felony. The jury found defendant guilty of the crime of vandalism[,] a violation of Penal Code Section 594[, subdivision (b)](1), a felony. However, the jury also found that the amount of damage was less than $400, which is a misdemeanor pursuant to section 594, subdivision (b)(2)(A), a fact that was later acknowledged by the probation department and the trial court.

[4] Defendant did not object to the requested jury instruction.

[5] Defendant mistakenly claims that respondent argues vandalism is a strict liability crime.

[6]Campbell did not address whether vandalism was a specific or general intent crime, finding that the distinction is irrelevant to the question of moral turpitude. (Campbell, supra, 23 Cal.App.4th at p. 1493.)

[7] Defendant also challenged on appeal the $220 restitution fine he was ordered to pay pursuant to section 1202.4, subdivision (b). He withdrew the argument in his reply brief.