P. v. Allen

Filed 9/29/06 P. v. Allen CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge.

John F. Shuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Marty Glen Allen was convicted of first degree burglary, vandalism and disturbing the peace. “Three Strike” priors were found to be true and appellant was sentenced to 35 years to life in prison. On appeal, appellant contends (1) the trial court erred by failure to instruct the jury sua sponte with CALJIC No. 17.01 [the unanimity instruction]; (2) there was no substantial evidence that appellant intended to commit a felony when he entered the residence; (3) evidence of appellant’s other misconduct should not have been admitted; and (4) the trial court abused its discretion in failing to strike “priors.” We will affirm the judgment.^[1]

PROCEDURAL SUMMARY

On June 17, 2005, the district attorney filed an amended information charging appellant with the following offenses: count 1 -- first degree residential burglary (Pen. Code, § 459);^[2] count 2 -- felony vandalism (§ 594); count 3 -- misdemeanor vandalism (§ 594); and count 4 -- misdemeanor disturbing the peace (§ 415). Special allegations of prior felony convictions were made pursuant to Penal Code section 1170.12, subdivision (c)(2)(A), including allegations of prior serious felonies under Penal Code section 667, subdivision (a)(1). Appellant entered a plea of not guilty and denied the special allegations.

On August 1, 2005, the jury found the appellant guilty on all counts. In a bifurcated hearing, the trial court subsequently found the priors to be true. On August 30, 2005, the court sentenced appellant to a total of 35 years to life in prison. Specifically, appellant was sentenced to 25 years to life under count 1, plus two consecutive five-year terms for the two serious prior felonies. Counts 2 and 4 were dismissed, and no sentence was imposed regarding count 3. On September 9, 2005, appellant timely filed his notice of appeal.

STATEMENT OF FACTS

Appellant was the boyfriend of Brenda Shook. When Shook attempted to end the relationship or when she didn’t do what he asked, appellant would arrive outside her residence in the middle of the night and shout obscenities and threats, break windows and commit other acts of vandalism. On one occasion, the front window was broken through and the interior of the residence was vandalized. The latter incident resulted in the burglary conviction against the appellant, with serious consequences under the “three strikes” law. A more detailed summary follows.

According to Brenda Shook, appellant was her boyfriend whom she had been dating for about two years prior to the trial. When Shook met appellant, she was living with Belinda Sue Anderson at 611 S. Edison.

August 21, 2004. Brenda Shook testified that in August of 2004 she had stopped dating appellant for a brief time while she was dating another man. During that time, she changed her cell phone number because she did not want appellant to call her anymore. In the early morning of August 21, 2004, Shook looked out her window at 611 S. Edison and saw appellant writing Shook’s new telephone number on the windows of her car with a permanent marker. She had not given appellant the new number. When appellant stayed on her front porch and would not leave, she called the police. At trial, Shook denied telling the police that appellant had been yelling and cursing at her from outside the house since 4:00 a.m. that morning. Shook also denied at trial that appellant threatened her or that she was afraid of him. However, according to the police officer who arrived at the scene that morning, Shook reported that she was awakened at approximately 4:00 a.m. to loud yelling of obscenities and threats from outside the residence in the front yard, plus banging on the windows, all of which was carried out by appellant. It was later that morning, at about 7:20 a.m., that she saw him write her cell phone number on her car. Shook also told the officer that appellant had threatened that he would hit her on the head so hard her teeth would rattle and that he would burn her vehicle. She told the officer she was scared of appellant. Belinda Sue Anderson, who was living at 611 S. Edison with Shook, recalls the yelling and the threats of violence, and also witnessed appellant writing Shook’s phone number on the car.

September 14th-15th, 2004. Not long after the incident in August, Shook began “somewhat” to date appellant again, although it was an on again, off again relationship. During the afternoon of September 14, 2004, appellant came to 611 S. Edison and asked Shook for a ride. He was drunk, and she refused him. His response was to take the fuses out of her car and to boast “now try and drive your car.” She later confronted him and told him she did not appreciate what he had done. At about 7:30 p.m. on September 14th, Belinda Sue Anderson was at home when a rock came crashing through a window in the living room. When she went to the living room to see what happened, appellant was outside pushing his hands through another window. She heard appellant yell, “Brenda, this is Marty Allen. I don’t want you to ever forget it.” While Anderson telephoned the police, Brenda Shook’s bedroom window was also broken. Appellant’s Harley-Davidson hat was found on the couch, just below one of the broken windows. Shortly thereafter, police officer Nulick arrived to investigate the reported vandalism. In the course of his investigation, the officer went to the Blitz Bar to find the appellant. Other police officers were already questioning appellant at that time, but officer Nulick observed that appellant’s hands were cut and bloody. Another officer also saw the lacerations on appellant’s hands at that time.

After the 7:30 p.m. incident, Anderson called Shook and let her know that “Marty had been there and broke the window.” Shook went home and, with help from others, they cleaned up the glass and put it in a trash can. Neither of them stayed in the house that night. Anderson went to a friend’s house at about 10:30 p.m., and Shook left sometime later and would stay with her ex-husband. On the way to her ex-husband’s residence, Shook stopped by the Blitz Bar at approximately 11:30 p.m. to confront appellant about the broken windows, but he was drunk and gave no explanation.

At about 3:30 a.m. on the morning of September 15, 2004, Shook received a phone call from appellant. He was angry that she was not home. Although Shook claimed at trial she could not recall details about the phone call, the description she gave Anderson on the morning of September 15th was that appellant told Shook “she better get home or she will not have a front door to walk through.” When the police arrived, Shook informed officer Kroeze that appellant said he had beaten out the rest of her windows and “she needed to return to her residence or she wouldn’t have any doors left on her house.” Similar messages from appellant were discovered on the answering machine after Anderson returned that morning, which were played to the jury.^[3] Shook returned home at about 6:00 a.m. and found the windows in her car broken and the interior of the house ransacked and vandalized. Anderson arrived home shortly thereafter. The damage found inside the house was extensive. Among other things, mirrors and furniture were broken; the couch was tipped over; dressers or vanities were knocked over; the kitchen table was overturned; the shower door was broken; the broken glass that had been cleaned up earlier was spilled; the microwave and sewing machine were on the floor; collectibles were damaged; and vinyl flooring, door jams and doors were damaged.

Anderson estimated the damage to her property alone was $4,274. Lou Fortney, who owned the house where Anderson and Shook lived, wrote checks totaling $3,700 for repairs. The insurance adjuster who inspected the property estimated replacement and repair expenses would be $14,012.

In addition to the above evidence, the prosecutor introduced evidence of other, similar misconduct on the part of appellant, occurring in December of 2004 and April of 2005. In December of 2004, Shook was planning to move from the house she shared with Anderson. Appellant wanted Shook to move out, but Anderson did not want her to go. One day in December, appellant left an obscene and threatening telephone message on the answering machine. Appellant’s verbal threats included, “your gonna get the (inaudible) popped out of you Your gonna lose every fucking thing you got[and] you will rue the day you fucked with me” By January of 2005, Shook moved to a house at 615 West Noble. In April of 2005, Shook was dating Brian Carlsen, and Carlsen stayed the night at her house sometimes. On or about April 1, 2005, Officer Diltz responded to a report of vandalism and harassing phone calls at 615 West Noble. According to what Shook told officer Diltz, appellant showed up at 4:15 a.m. yelling and screaming obscenities at her from outside her house. She also told the officer that she saw appellant crouch down near Carlsen’s truck and she then heard a hissing or a rush of air and saw the truck lower in height. A tire on Carlsen’s truck had been slashed. Also, Officer Diltz heard several messages on Shook’s answering machine in which the caller (identified by Shook as appellant) threatened Carlsen and referred to Shook as a bitch or whore. Shook’s testimony at trial differed from what she told the officer; e.g., she stated at trial she saw someone crouching by the truck and she just assumed it was appellant.

Later that same day in April of 2005, appellant came to Shook’s front door at 615 West Noble. According to Shook’s report of the event given to officer Diltz, appellant was screaming and trying to push his way in. Shook told him to leave and tried to shut the door. She turned and told Carlsen that “Marty is here” and when Carlsen stepped in front of Shook (i.e., to keep appellant out), appellant charged and a fight ensued between Carlsen and appellant. In contrast, Shook’s testimony at trial indicated that Carlsen was, more or less, the aggressor or initiator of the fight.

Shook admitted that she and appellant are on good terms, and she still considers herself his girlfriend. Because of her feelings toward him, she admitted she is not in favor of prosecution going forward against him in this case.

Finally, at the close of the prosecution’s case, the jury heard several tape recordings of telephone conversations while appellant was in jail. Two of the telephone conversations were between appellant and Brenda Shook, occurring on July 17 and July 25, 2005. In these conversations, Appellant told Shook to testify that “you made a mistake” about identifying him as the one who slashed the tires, and she agreed to do so. Appellant also told her that “the police reports don’t matter” because what matters is what you say at trial about making a mistake. Both appellant and Shook said “I love you” a number of times, and appellant even proposed marriage. At one point in the July 17, 2005 phone call, appellant expressed his concern that “Suzie fuckin’ told them, that I left a hat there, when I tore up the house.” Shook then replied, “You didn’t leave the hat, you didn’t tear up the house. The hat was left there when the window was broken.” Later in the same conversation the “hat” issue came up again, and Shook indicated that she saw Eric Ward wearing that same hat, and she thought this would mean “his ass is done.” Appellant told her: “I didn’t go in it [the house] then anyway. I got an alibi.”

The other recorded telephone calls were with Matthew Crenshaw, who received a number of calls from appellant between June 15 and July 10, 2005. Although Crenshaw admitted appellant had contacted him several times about the case, both by letter and telephone, Crenshaw denied that he made an agreement with appellant to provide him with an alibi. He also denied that appellant told him to say that Crenshaw picked him up at the Blitz on September 14th at a certain time period. However, the jury heard the following conversation between appellant and Crenshaw:

“MA: Hey did you get my letter?

“[C]: Yeah.

“MA: Okay. Do you want to come to court for me?

“[C]: Yeah, I’ll go to court.

“MA: Okay. You picked me up at 11:30 that night, remember?

“[C]: Yeah.

“MA: Okay. That’s all you got to remember. Everything else is gonna work out. . . .

“MA: nobody seen shit, nobody knows nothing.

“[C]: Yeah.

“MA: You know what I mean. They can’t they didn’t, Brenda didn’t even

show up for the prelim. At the, at the prelim. Suzie showed up, and she -- she didn’t even say that I went back to the house and tore it up, or nothing. Nobody said, nothing about that. They don’t even know where I was. But now they do. I’m going to tell them I was at your house.

“[C]: Mmm hmm.

“MA: You tell them you picked me up at 11:30 at the Blitz.

“[C]: Yeah.

“MA: Okay?

“[C]: Yeah, I hate going to the Blitz.

“MA: I know, I do too. That’s why we left there.”

As evidence for the defense, Crenshaw testified that he picked appellant up from the Blitz Bar at about 11:30 p.m. on September 14th and took him to his (Crenshaw’s) house, where they allegedly drank beer and watched television. According to Crenshaw, appellant passed out and did not wake up until around 11:00 a.m. the next day. This testimony was the basis for appellant’s purported alibi. Appellant’s defense also relied upon certain testimony from Brenda Shook concerning an individual by the name of Eric Ward. She testified that sometime after the September 2004 vandalism incident, she saw Eric Ward wearing the Harley Davidson hat. Apparently, this was the same hat worn by appellant when he broke the front window on September 14th, and which was found on the sofa near the broken window at that time. Appellant’s attorney referred to this testimony in closing argument and suggested that Eric Ward may have been the one who subsequently entered and vandalized the residence.

Upon hearing all of the above evidence, the jury convened and found the appellant guilty as charged on all four counts.

CONTENTIONS ON APPEAL

Appellant contends the trial court committed reversible error in the following respects: (1) the judge failed to instruct the jury with CALJIC No. 17.01 [the unanimity instruction], which allegedly was required under the circumstances; (2) there was no substantial evidence to support the jury’s finding that appellant had a felonious intent at the time he entered the residence; (3) the evidence of appellant’s uncharged other misconduct should not have been admitted; and (4) in sentencing appellant, the trial court abused its discretion in failing to strike the “priors.” The appellant also asks that we correct an error in the abstract of judgment.

DISCUSSION

A. Failure to Give Unanimity Instruction

Appellant contends that the prosecution presented evidence of two distinct acts of “entry” for purposes of the crime of burglary, but did not elect which of those two it was relying on to prove the burglary. According to appellant, the trial court was required to instruct the jury that it must unanimously agree on which act constituted the burglary.^[4]

It does not appear that appellant asked the trial court to give CALJIC No. 17.01. Nevertheless, the issue may be raised on appeal because a court must give the instruction sua sponte “where the circumstances of the case so dictate.” (People v. Riel (2000) 22 Cal.4th 1153, 1199.) Jurors must unanimously agree the defendant is “criminally responsible for ‘one discrete criminal event.’ [Citation.]” (People v. Thompson (1995) 36 Cal.App.4th 843, 850 [italics in original].) “A unanimity instruction is required if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.” (People v. Beardslee (1991) 53 Cal.3d 68, 93.) That is, a unanimity instruction “must be given sua sponte where the evidence adduced at trial shows more than one act was committed which could constitute the charged offense, and the prosecutor has not relied on any single such act.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.)

In People v. Russo (2001) 25 Cal.4th 1124, 1132, the Supreme Court explained the rationale for the unanimity instruction:

“In a criminal case, a jury verdict must be unanimous. [Citations.] Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]

“This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.] For example, in People v. Diedrich [(1982)] 31 Cal.3d 263, the defendant was convicted of a single count of bribery, but the evidence showed two discrete bribes. We found the absence of a unanimity instruction reversible error because without it, some of the jurors may have believed the defendant guilty of one of the acts of bribery while other jurors believed him guilty of the other, resulting in no unanimous verdict that he was guilty of any specific bribe. [Citation.] ‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ [Citation.]

“On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.] The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. (Pen. Code, § 459.) If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require unanimity instruction.” (People v. Russo, supra, at p. 1132-1133.)

Appellant’s argument in the instant case is that there were two distinct events which could have constituted the “entry” into the premises for purposes of the crime of burglary. That is, one entry occurred at 7:30 p.m. on September 14, 2004, when the rock was thrown by appellant through the front window of the residence and appellant “pushed his hands right through” the window. As long as felonious intent was present, even this brief and minimal entry would be sufficient, technically, to constitute a burglary. (See, People v. Massey (1961) 196 Cal.App.2d 230, 236 [putting a hand in a window would be sufficient to constitute “entry” for purposes of burglary]; People v. Stewart (1952) 113 Cal.App.2d 687, 691 [crime of burglary complete upon entry with felonious intent, even though unlawful purpose is abandoned].) The second entry by appellant occurred sometime in the early morning hours of the next day, i.e., September 15, 2004, when the residence was ransacked. According to appellant, since each entry could potentially constitute an act of burglary as long as the requisite intent was present, the unanimity instruction was required.

Additionally, appellant argues that when the prosecutor told the jury in closing argument, “So first degree residential burglary on September 14 and 15th of 2004,” the prosecutor not only failed to elect which act constituted count 1, but actually encouraged the jurors to rely on either act.

The respondent counters that appellant is misconstruing the nature of the case that was presented and argued to the jury. We agree. The reason for the prosecutor’s reference to burglary occurring on September 14th and 15th, 2004, is readily apparent from the circumstances. Neither Shook nor Anderson stayed at the residence that night. Shook testified she last saw appellant at the Blitz Bar at 11:30 p.m. or 12:00 midnight on the 14th. However, the ransacked residence was not discovered until the next morning, after appellant’s 3:30 a.m. threatening telephone message. Thus, it was uncertain whether the burglary occurred entirely on September 15th, or in part during the waning minutes of September 14th. In count 1, the burglary was alleged to have occurred “[b]etween the 14th day of September, 2004 and the 15th day of September, 2004.” The identical time frame is used to describe the felony vandalism charge in count 2. The reference to the 14th and 15th of September was obviously due to the uncertainty of the timing of the burglary, and no juror would take this to mean there were two events of burglary.

Moreover, the prosecutor’s closing argument referred exclusively to the ransacking incident (inside the residence) as the burglary, with the 7:30 p.m. window-breaking incident mentioned only as a prelude thereto.^[5] In the course of her argument, the prosecutor emphasized the phone calls from appellant threatening damage to the house, especially the call at 3:30 a.m. on September 15th, to show his intention to go over to the house and demolish it if she doesn’t do what he says. She reminded the jury: “You have those phone calls as proof of the defendant’s intent, and the acts that he did when he got in there. You have proof of the photographs of what he did once he got in there.” In summing up how the burglary and felony vandalism occurred, the prosecutor explained:

“You have defendant telling ... Shook if you don’t get home, in a nutshell, I’m going to vandalize your house. I’m going to go inside and mess your life up. That’s what he did.

She [Brenda Shook] goes to the Blitz Bar at eleven. She says she leaves by twelve. She’s not really sure of the time frame. So obviously she didn’t stay with him that night. In fact, she stayed with her ex-husband that she’s not really divorced from yet, I guess. That couldn’t have made him happy, especially after he had been trying to get a hold of her all day from three PM trying to get a ride from her, seven PM coming to her house not finding her, going to the bar. She confronts him and she leaves.

So if she’s gone by midnight and he’s at the Blitz and Brenda testified herself that she can walk from the Blitz to her house, defendant walked from the Blitz to the house looking for Brenda, didn’t find her there, and vandalized the house. That’s how it happened, folks.”

Closing argument for the defense also focused exclusively on the later events (i.e., the entry and vandalism inside the residence) as the basis for the burglary charge. Appellant’s attorney, in closing argument to the jury, responded that there is no evidence “that shows that Marty Allen crossed that threshold at 611 South Edison and had an intent in his mind to do felony vandalism.” He also argued there was no intent to commit felony vandalism (i.e., over $400 in damages) inside the residence because most of the items were merely turned over or messed up but not intentionally broken, and in any event the cost estimates for repair or replacement were not realistic or credible. He went on to tell the jury “the burglary and the vandalism go together,” and “the whole issue is whether or not they’ve shown somebody [i.e., appellant] entered.” Anyone could have come in through that broken front window and caused damage inside, he argued, but the prosecutor has not shown it was appellant, and because of the “hat” later seen on Eric Ward, he suggested it may have been Mr. Ward who entered the residence that night.

In her rebuttal to the appellant’s closing arguments, the prosecutor emphasized the following facts to establish it was appellant who entered and did the damage: “[appellant]’s the one that’s been calling here all night. He’s the one that’s mad at Brenda. He’s the one that broke out the window beforehand.”

Where CALJIC No. 17.01 is erroneously omitted, the reviewing court must determine whether the error was harmless beyond a reasonable doubt. (People v. Gary (1987) 189 Cal.App.3d 1212, 1218, disapproved on other grounds in People v. Flood (1998) 18 Cal.4th 470, 481; People v. Metheney (1984) 154 Cal.App.3d 555, 563-564, fn. 5.)^[6] Because the 7:30 p.m. incident could potentially constitute a burglary (assuming the requisite intent was found to be present), the trial court should have given the unanimity instruction. However, we conclude that any error in this regard was harmless beyond a reasonable doubt. In light of the manner in which the case was presented to the jury, and especially the closing arguments, there was no reasonable possibility that the jury believed the 7:30 p.m. window-breaking incident was a potential basis upon which to convict appellant of the first degree burglary charge. Rather, as clearly delineated in oral argument, the burglary charge was based solely on the ransacking of the house which occurred several hours after the 7:30 p.m. incident. (See People v. Napoles (2002) 104 Cal.App.4th 108, 119 [the failure to give unanimity instruction is harmless if disagreement among jurors concerning specific acts proved is not reasonably possible].) Accordingly, we conclude there was no reversible error.

B. Burglary Conviction Supported by Substantial Evidence

Appellant contends that the burglary conviction is not supported by substantial evidence because there was “no substantial evidence that appellant entered the house with a felonious purpose.” That is, appellant argues that although there may have been circumstantial evidence he intended to commit ordinary vandalism in the women’s house, there was no substantial evidence that he had the specific intent to commit “felony vandalism” -- i.e., damage over $400.00 in value.

“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Furthermore, “[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.” (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury’s findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bradford, supra, 15 Cal.4th at p. 1329; People v. Panah (2005) 35 Cal.4th 395, 488.)

“’Evidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.’ [Citations.]” (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) It is well-settled that “[a] jury may infer a defendant’s specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors.” (People v. Park (2003) 112 Cal.App.4th 61, 68.)

Penal Code section 459 states that every person who “enters any housewith intent to commit grand or petit larceny or any felony is guilty of burglary.” The specific intent necessary to commit burglary “is simply the felonious design with which the accused enters the building, i.e., ‘with the intent to commit ... any felony’ therein.” (People v. Smith (1966) 63 Cal.2d 779, 793.) Whether a defendant had the required felonious intent necessary to commit a burglary may be inferred from all of the facts and circumstances disclosed by the evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1157.)

Appellant argues there was insufficient evidence to support the jury’s verdict that he entered the residence with intent to commit felony vandalism therein. We disagree. Felony vandalism exists where the amount of damage or destruction to property is $400 or greater. (Pen. Code, § 594, subd. (b)(1).) Felony vandalism is not a specific intent crime. (People v. Campbell (1994) 23 Cal.App.4th 1488, 1493.) The appellant need not have had a specific dollar value in his mind when he purposed to destroy things and wreck havoc in his girlfriend’s residence. His actions clearly evidenced an intent to commit significant property damage, of a nature which would obviously be costly to repair or replace, and in fact the total repair or replacement expenses greatly exceeded $400.^[7] His specific intent was properly inferred from such facts as his prior acts of vandalism, his angry telephone calls threatening destruction of property, and the level of actual destruction to the real and personal property. We conclude there was substantial evidence to establish that appellant had a specific intent to commit felony vandalism within the residence. Appellant’s argument on this point is without merit.

C. Admission of Uncharged Misconduct Was Not Reversible Error

Appellant contends that the trial court erred in admitting evidence of uncharged misconduct because (1) it was not admissible under Evidence Code section 1101, subdivision (b), and (2) even if admissible, any probative value was outweighed by prejudicial effect.

Character evidence is generally inadmissible when offered to prove conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) However, this rule “does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Evidence Code section 1101, subdivision (b), specifies that evidence of other misconduct is admissible when relevant to prove such issues as intent, motive, knowledge, identity, or common plan or design. (Evid. Code, § 1101, subd. (b); People v. Kipp (1998) 18 Cal.4th 349, 369.) “Evidence of uncharged crimes is admissible to prove identify, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.” (People v. Kipp, supra, 18 Cal.4th at p. 369.) “On appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion.” (Ibid.) Under an abuse of discretion standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)

In the present case, the prosecution made a pretrial motion to introduce evidence of other, uncharged misconduct. The referenced misconduct included (1) a December 2004 incident in which appellant made threatening calls to Shook’s and Anderson’s residence, shortly before Shook moved out, and (2) April 2005 incidents of harassment and vandalism at Shook’s new residence. The prosecutor argued the evidence showed a “pattern” of behavior. That is, whenever Shook rebuffs him or tries to break up, he comes over, yells obscenities, harasses her, and it eventually escalates to vandalism. The trial court agreed and granted the motion, concluding that the events of September 14th and 15th did not occur in a vacuum, and that the other incidents were “textbook” examples of evidence admissible under Evidence Code section 1101, subdivision (b) to prove identity, motive, or common plan or scheme.

At trial, the prosecution introduced the specific evidence of misconduct on the part of appellant occurring in December of 2004 and April of 2005.

We agree with respondent that the evidence of appellant’s misconduct was properly admitted under Evidence Code section 1101, subdivision (b). It was relevant as evidence of appellant’s identity in the burglary and felony vandalism. His identity as the perpetrator was in issue because he denied the charges, presented evidence of an alibi, and attempted to implicate another party (i.e., Eric Ward). A pattern of abusive or intimidating behavior between the same perpetrator and victim, who were in a relationship with each other, is relevant to the issue of identity. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1613-1614.) The evidence also tended to show the existence of a common plan or scheme -- that is, when Shook did not do what appellant asked or if she tried to break off the relationship, he would revert to tactics of intimidation escalating from yelling obscenities in the middle of the night and making threats, to vandalism. Such common features indicate a plan or scheme rather than a series of spontaneous acts. (See People v. Carter (2005) 36 Cal.4th 1114, 1149 [common features with charged conduct should indicate “a plan rather than a series of spontaneous acts, but the plan thus revealed need not be distinctive or unusual”].)

We also agree with respondent that the evidence of other misconduct was admissible to show intent. “The least degree of similarity (between the uncharged act and charged offense) is required in order to prove intent.” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) The appellant’s felonious intent at the time of the alleged burglary was an important issue in the case. Evidence indicating he intended on other occasions to intimidate Shook through threats and vandalism is relevant to show that a similar intent, motive or state of mind was probably harbored on the day of the burglary. (See People v. Linkenauger, supra, 32 Cal.App.4th at 1613 [evidence of marital discord and prior assaults properly admitted to show intent and motive]; People v. San Nicolas (2004) 34 Cal.4th 614, 668 [“[e]vidence tending to establish prior quarrels between a defendant and decedent and the making of threats by the former is properly admitted to show motive and state of mind”].)

Thus, the appellant’s contention the evidence of other misconduct was inadmissible is without merit. Equally unavailing is the argument that the trial court abused its discretion under Evidence Code section 352. The court could reasonably conclude the probative value outweighed any prejudicial effect, since it was significant evidence concerning issues such as identity, intent, and common plan or scheme. Appellant has failed to demonstrate that the evidentiary ruling was arbitrary or capricious.

Finally, 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 appellant’s conviction of burglary and felony vandalism were based upon substantial evidence and the outcome was not a close call. Additionally, the jury was duly instructed regarding the limited purpose for which such evidence could be considered. Based upon the strength of the evidence presented at trial and the limiting instruction given to the jury, it is not reasonably probable that appellant 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.)

D. Court’s Refusal to Dismiss Prior Convictions Was Not An Abuse of Discretion

Appellant next contends that the trial court abused its discretion when it refused to dismiss either of his prior “strike” felony convictions.

In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the California Supreme Court explained that under Penal Code section 1385, subdivision (a), a trial court may in the furtherance of justice strike or vacate an allegation or finding under the Three Strikes law^[8] that a defendant has previously been convicted of a serious and/or violent felony. (Id. at p. 504.) The court’s exercise of discretion in the furtherance of justice “requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People.” (Id. at p. 530 [italics in original].) In People v. Williams (1998) 17 Cal.4th 148, the Supreme Court articulated the standard for striking prior convictions under the Three Strikes law, as follows:

“We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.” (People v. Williams, supra, 17 Cal.4th at p. 161 [emphasis added].)

The trial court’s decision whether or not to strike a prior conviction for purposes of the Three Strikes law is subject to review under the deferential abuse of discretion standard. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434.) Under this standard, the ruling will be upheld unless it “’falls outside the bounds of reason’ under the applicable law and the relevant facts.” (People v. Williams, supra, 17 Cal.4th at p. 162.) As more fully explained in People v. Carmony (2004) 33 Cal.4th 367:

“In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez), quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ (Alvarez, at p. 978, quoting People v. Preyer (1985) 164 Cal.App.3d 568, 573.) Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.

“Because ‘all discretionary authority is contextual’ (Alvarez, supra, 14 Cal.4th at p. 978), we cannot determine whether a trial court has acted irrationally or arbitrarily in refusing to strike a prior conviction allegation without considering the legal principles and policies that should have guided the court’s actions. We therefore begin by examining the three strikes law.

“’[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.’ (Romero, supra, 13 Cal.4th at p. 528.) To achieve this end, ‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citations.]’”

Because the circumstances must be ‘extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ (Strong, supra, 87 Cal.App.4th at p. 338), the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case -- where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ -- the failure to strike would constitute an abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 376-378.)

At the sentencing hearing in the present case, the trial court considered the motion to strike appellant’s prior felony convictions. The prosecutor argued that in light of the appellant’s recidivist tendencies, and that his priors involved the same sort of vengeful and violent conduct aimed at people he wants to control, the priors should not be dismissed, and “[n]either his age nor the age of the priors would give this Court any reason to strike these strikes.” Defense counsel argued that it would be unjust to sentence his client to 35-years to life for what amounts to a domestic violence case, that the priors were remote in time (i.e., 1987 and 1990), and that the instant case was arguably a misdemeanor depending on how one views the evidence concerning the amount of damages. Following oral argument, the court denied the appellant’s motion, explaining as follows:

“This is a difficult case. It’s difficult to send somebody to prison for life. Had the defendant not had a criminal record, he certainly wouldn’t be going to prison for life.

“The fact of the matter is, is that in this Court’s opinion, the nature and circumstances of the offense are not the most critical issue in this Court’s decision. Although the damages are great, it’s the violent nature of the damages and the way the damages were carried out, the extent of the damages are the best measure of the defendant’s intent at the time that he entered this residence. The defendant’s intent was to punish and intimidate someone who didn’t do what the defendant wanted them to do, that wouldn’t go where the defendant wanted them to go when he wanted them to be there.

“The defendant has throughout for years [sic], has used threats, intimidation, and terror as tools to get others -- force others to comply with his wishes and demands. When they don’t comply, he uses violence or threats and intimidation.

“The defendant was convicted of a 245 [assault with deadly weapon] in 1987 and he was placed on probation. And shortly after that, he was convicted of 273.5 first degree residential burglary, two counts of dissuading a witness, making threatening phone calls, and violating court orders, eight counts. And the defendant was sent to state prison for four years. He gets out of state prison, then he continues to use threats and intimidation by phone calls with different victims to get them to do what he wants them to do.

“In this Court’s opinion, the defendant is a danger to the community, danger to those people that associate with him. And given the nature and circumstances of this offense, given his prior, prior record, given his background, I believe that the indicated sentence by Probation is the appropriate sentence. And I regretfully am going to impose that sentence.”

In this appeal, appellant argues that the court abused its discretion by not striking at least one of the two prior “strike” convictions because the violence in the current case was not against any person and only caused property damage, appellant was not armed, he is allegedly remorseful about the broken windows, he’s a “hard worker,” and he has a “mental difficulty” in controlling his anger. Appellant also refers to appellant’s age (45) and the age of the priors. These assertions fail to establish an abuse of discretion. The trial court articulated sound reasons for denying the motion to strike the priors, including the appellant’s pattern of similar threatening and intimidating behavior, his danger to society, and that prior efforts at punishment have had no effect. Thus, it appears this case comes within the spirit of the three strikes statutory scheme, and the appellant has failed to demonstrate otherwise. Additionally, the trial court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary; thus, the fact that the court focused its explanatory comments on the nature of the crimes does not mean it considered only that factor. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

Under the abuse of discretion standard an appellant who seeks reversal must clearly demonstrate that the trial court’s decision was irrational or arbitrary. “It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions.” (People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434.) Appellant has failed to meet this burden. To the contrary, the record reflects that the trial court properly exercised its discretion when it failed to strike the prior felony convictions.

E. Request for Correction of Abstract of Judgment.

Appellant asks this court to correct an error in the abstract of judgment. At sentencing, without objection from the prosecutor, the trial court dismissed count 2 (felony vandalism). However, the abstract of judgment shows that the appellant remained convicted of count 2. Thus, the abstract is in error and should be corrected.

Where an abstract of judgment does not reflect the actual court proceedings, the defendant is entitled to seek on appeal to have the abstract of judgment corrected. In such cases, it is appropriate for the Court of Appeal to direct the clerk of the superior court to correct the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) We agree that the abstract of judgment incorrectly includes count 2 (felony vandalism) as a conviction. The record clearly shows that the trial court dismissed count 2. Therefore, the reference in the abstract of judgment to a conviction on count 2 should be stricken, and we direct the clerk of the superior court to correct the abstract accordingly. It is so ordered.

DISPOSITION

The judgment is affirmed. Appellant’s request for correction of the abstract of judgment by striking the reference therein to a conviction on count 2 and directing the clerk of the superior court to correct the abstract accordingly is granted.

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Kane, J.

WE CONCUR:

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Levy, Acting P.J.

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Gomes, J.

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^[1] In addition to the above assertions of error, the appellant requests correction of the abstract of judgment. As noted later, the abstract contains an obvious clerical error which will be corrected by this court.

^[2] All statutory references are to the Penal Code unless otherwise noted.

^[3] One message said: “Tell Brenda she’s got exactly seven fucking minutes or I’m gonna be at her door. She needs to get to the Blitz in seven fucking minutes. Me and Chris will be at her fucking door and your ass will be drug around like a whore you really are.”

^[4] The unanimity instruction is set forth at CALJIC No. 17.01, which states: “The defendant is accused of having committed the crime of____ [in Count __]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count __] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count __], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.”

^[5] In opening argument as well, the 7:30 p.m. window-breaking incident is mentioned solely in passing as one in a series of events leading up to the subsequent ransacking and vandalism of the interior of the house.

^[6] There is a split of authority on the proper standard for determining whether the erroneous failure to give a unanimity instruction is reversible. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 [cases collected].) We find the error harmless even under the more stringent Chapman test. (Cf. Chapman v. California (1967) 386 U.S. 18, 24; and People v. Watson (1956) 46 Cal.2d 818, 836.)

^[7] There was competent testimony from several witnesses to show damages of several thousands of dollars, ranging from approximately $3,000 or $4,000 to $14,000.

^[8] Penal Code sections 667, subdivisions (b) through (i), and 1170.12.