Opinion
A148902
11-05-2018
THE PEOPLE, Plaintiff and Respondent, v. WAYNE PRESTON, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING; CHANGE IN JUDGMENT THE COURT: It is ordered that the opinion filed herein on November 5, 2018, be modified in the following particulars: 1. On page 1, the first paragraph is deleted and the following paragraph is inserted in its place:
Defendant appeals a judgment convicting him of residential burglary, stalking and vandalism and sentencing him to 16 years 4 months in prison. He contends the court's instruction on the use of prior uncharged acts of domestic violence as propensity evidence impermissibly lowered the prosecution's burden of proof on the charged offenses. He also contends punishment for his vandalism conviction must be stayed under Penal Code section 654 and that the matter should be remanded to give the court an opportunity to exercise its new acquired discretion to dismiss a prior serious felony conviction under amendments to sections 667, subdivision (a) and 1385, subdivision (b), effective January 1, 2019 (Senate Bill No. 1393 (2017-2018 Reg. Sess.).) We find no instructional error but agree that execution of defendant's sentence for vandalism must be stayed and the matter
remanded so that the trial court may consider whether to strike the enhancement. In all other respects, we shall affirm the judgment.2. On page 8, after part 2 of the Discussion, add part 3 to the Discussion as follows:
3. Remand is required for the trial court to consider whether to strike the prior serious felony enhancement.3. On page 9, the Disposition is deleted and the following Disposition is inserted in its place:
Under the current versions of sections 667, subdivision (a) and 1385, subdivision (b) the court is required to impose a five-year consecutive term for "any person convicted of a serious felony who previously has been convicted of a serious felony" (§ 667 subd. (a)), and the court has no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (§ 1385, subd. (b).) On September 30, 2018, the Governor signed Senate Bill No. 1393 which, effective January 1, 2019, amends these statutes to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Because defendant's judgment will not be final by the effective date of the amendments, he will be entitled to the benefit of the new law. (In re Estrada (1965) 63 Cal.2d 740, 744-745.) Therefore, we agree with defendant that the matter should be remanded so the trial court may exercise its discretion to determine whether to dismiss or strike the enhancement.
Defendant's convictions are affirmed, but the case is remanded with directions to modify the judgment to stay execution of punishment on count four pursuant to section 654, and, after January 1, 2019, to consider whether to strike the enhancement imposed under section 667, subdivision (a), and to resentence defendant accordingly.The petition for rehearing is denied. There is a change in the judgment. Dated: November 19, 2018
SIGGINS, P.J. P. J.
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. (Contra Costa County Super. Ct. No. 51500313)
Defendant appeals a judgment convicting him of residential burglary, stalking and vandalism and sentencing him to 16 years 4 months in prison. He contends the court's instruction on the use of prior uncharged acts of domestic violence as propensity evidence impermissibly lowered the prosecution's burden of proof on the charged offenses. He also contends punishment for his vandalism conviction must be stayed under Penal Code section 654. We find no instructional error but agree that execution of defendant's sentence for vandalism must be stayed. Accordingly, we modify defendant's sentence and otherwise affirm the judgment.
All statutory references are to the Penal Code unless otherwise noted.
Factual and Procedural Background
Defendant was charged by information with stalking with a prior conviction for stalking (§ 646.9, subd. (c)); making criminal threats (§ 422); residential burglary (§§ 459, 460, subd. (a)); vandalism (§ 594, subd. (b)(1)); and willfully disobeying a court order (§ 166, subd. (a)(4)). It was further alleged that defendant had suffered a prior conviction for making criminal threats, which was charged as both a strike prior (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony enhancement (§ 667, subd. (a)(1)).
At trial, evidence was presented that defendant and the victim were married from 2005 until 2011. Considerable evidence was admitted regarding defendant's repeated domestic violence between 2011 and mid-2014 that led to defendant's conviction in September 2014 for stalking and making criminal threats. Evidence was presented that on July 2, 2014, defendant went to the victim's house and knocked on the door. When she would not let him in, defendant left briefly, then returned with a gasoline can. He called for everybody to come outside and said that if they did not he was going to set the house on fire. He then started pouring gasoline on the house. When the victim's daughter, who was sitting in her car in the driveway at the time, got out of her car and approached defendant, he doused her with gasoline. He also threw gasoline on the victim and the victim's grandson when they came outside. When defendant tried to light a cigarette, the victim's daughter tackled him. Defendant was arrested and remained in jail until mid-December.
Defendant was released from jail on December 15, 2014. At 6:43 a.m. that day he called the victim. She told him not to come near her and that if he did he would go back to jail. For the next three days, defendant continued to call and text the victim.
At about 10:50 a.m. on December 18, 2014, defendant went to the victim's house. The victim told defendant that he needed to leave and she warned him that she was going to call the police. Defendant accused the victim of having another man in the house and threatened to kill the man and burn his car. He also threatened to set fire to the victim's house and her car. After the victim called the police, defendant left but told her that he would be back.
Defendant returned later that day at about 1:00 p.m. As he walked up to the porch, the victim slammed the door in his face. He demanded she open the door, but she refused. The victim called the police. Defendant ran around to the back of the house and "put his fist or whatever" through the victim's bedroom window, breaking both the window and a mirrored headboard located directly behind it. Unable to get in through the window, defendant returned to the front of the house, and punched out a window near the front door and climbed into the house. Once inside, defendant went straight to the victim's bedroom and started looking for the other man he suspected was there. Defendant said that if he caught the man, he was going to kill him. Defendant grabbed a set of house keys and a cell phone before running out of the house. Defendant was arrested later that day about a quarter of a mile from the victim's house.
The jury deadlocked on count 2 (criminal threats) but convicted defendant of the remaining charges. After dimissing count 2, the court found the prior conviction allegations to be true. Thereafter, defendant was sentenced to an aggregate state prison term of 16 years, four months, calculated as follows: eight years on the burglary count (the midterm of four years, doubled for the strike); a consecutive term of two years on the stalking count (one-third the midterm of three years, doubled for the strike); a consecutive term of 16 months on the vandalism count (one-third the midterm of two years, doubled for the strike); a concurrent term of 180 days for disobeying a court order, plus a consecutive five-year term for the prior serious felony enhancement.
Defendant timely filed a notice of appeal.
Discussion
1. The jury was properly instructed on the use of uncharged domestic violence evidence.
CALCRIM No. 852A instructs the jury on the use of evidence admitted under Evidence Code section 1109, which makes evidence of other domestic violence offenses admissible to show a propensity to commit such offenses. As given in this case, the instruction read, "The People presented evidence that the defendant committed domestic violence that was not charged in this case. [¶] Domestic violence means abuse committed against an adult who is a spouse or former spouse. [¶] Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit stalking and criminal threats as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of stalking or criminal threats. The People must still prove each charge beyond a reasonable doubt."
Evidence Code section 1109, subdivision (a)(1), provides in relevant part, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." Evidence Code section 1101, subdivision (a) provides, "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
Defendant contends the instruction violated his due process rights by lowering the prosecution's constitutionally required burden of proof by permitting the jury to find facts necessary to establish elements of the charged crimes of stalking and burglary under a preponderance of the evidence standard. Defendant acknowledges that an instruction "not unlike CALCRIM No. 852" was approved by our Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007, 1009. (See also People v. Johnson (2008) 164 Cal.App.4th 731, 739-740 [relying on Reliford to reject argument that CALCRIM No. 852 lessened the prosecution's burden of proof]; People v. Reyes (2008) 160 Cal.App.4th 246, 248-249 [same].) He argues that the instruction was improper in this case because the crime of stalking is a " 'course of conduct' offense occurring over a period of time." He explains, "Because stalking is a 'course of conduct' crime, it is reasonably likely that the jury interpreted the instructions they were given to mean that if they found, by only a preponderance of the evidence, that appellant had committed the uncharged crimes, they could also find that the prosecution had established that appellant had (1) harassed [the victim] by engaging [in] a prohibited 'knowing and willful course of conduct;' (2) 'repeatedly followed' [the victim], and (3) made a credible threat to her as demonstrated by a 'pattern of conduct or combination of statements and conduct,' within the meaning of the charged crime of stalking." He suggests the instruction was similarly problematic with regard to the burglary count because the jury was instructed that a burglary was committed if defendant entered the victim's house with the intent to commit, among other things, stalking. We disagree.
The information charged defendant with stalking on or about December 18, 2014. The prosecution argued, "In our case, . . . the stalking begins on December 15th of 2014. Now, the charge states December 18th, but that's 'about' or "on'. It's not necessarily just that one day. [¶] And, in this case, the defendant at 6:43 in the morning, as soon as he gets out of jail, calls [the victim] and starts harassing her. Then, he texts her. Later that day, continuing. We have texts in which he says he is on his way to her house. And, as she explained to you, that immediately put her in fear, because she knew what the defendant does when he comes to her house. . . . [¶] . . . [¶] Then, we look to December 18th of 2014. [¶] We know that defendant came to [the victim's] house, not once, but twice. He threatens to set a fire. Then he threatens to kill [her]. When he comes back, he breaks windows, and then he breaks inside the house."
Under the instruction given, only the uncharged crimes—those that occurred prior to defendant's conviction in September 2014—were subject to proof by preponderance of the evidence. To the extent that the prosecution referenced defendant's prior conduct in closing argument, it was to establish that because of defendant's prior acts, the victim reasonably feared for her life when he came to her home on December 18. In addition to the usual burden of proof instructions, the jury was instructed that it must find defendant guilty of the charged crimes—stalking between December 15 and December 18—by proof beyond a reasonable doubt. As indicated above, the instruction stated explicitly: "If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of stalking or criminal threats. The People must still prove each charge beyond a reasonable doubt." There is no likelihood that a reasonable juror would have understood the instruction given to allow for conviction on the charged crimes based on a finding by a preponderance of evidence as to defendant's conduct prior to December 2014.
People v. Nicolas (2017) 8 Cal.App.5th 1165, cited by defendant, is distinguishable. In that case, the defendant was charged with gross vehicular manslaughter and the jury was instructed that if it found by a preponderance of the evidence that defendant committed the uncharged acts of texting or calling while driving, it could consider that evidence for the limited purpose of showing intent, knowledge or absence of mistake. (Id. at pp. 1177-1178.) On appeal, the court found, and the Attorney General conceded, that the instruction was plain error because "there were, in fact, no uncharged acts admitted into evidence. . . . '[T]he evidence of appellant['s] text messages in the moments leading up to the collision were not the type of prior acts evidence contemplated under Evidence Code section 1101. Given that the text messages and phone calls were a continuous back-and-forth conversation leading up to [the] time of the collision, they were an indivisible part of the offense itself.' " (Id. at p. 1178.) As discussed above, the uncharged domestic violence at issue in this case was carefully differentiated from the charged offenses by date in both the information and argument.
Accordingly, there was no instructional error.
2. The sentence imposed on the vandalism count must be stayed pursuant to section 654 .
Section 654 proscribes multiple punishment for the same act. (People v. Correa (2012) 54 Cal.4th 331, 337.) An "act" can include a " ' "course of conduct." ' " (Id. at p. 335.) "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." (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on other ground in Correa, supra, 54 Cal.4th at p. 335.) "If all 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. Perez (1979) 23 Cal.3d 545, 551.) "If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Harrison (1989) 48 Cal.3d 321, 335.) " 'The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced.' " (People v. Coleman (1989) 48 Cal.3d 112, 162.)
In imposing consecutive terms on each count, the court found that although the crimes "appeared close in time" each of the crimes was a "separate crime with separate [intents] behind them and separate damage to the victim." Defendant contends the court erred in failing to stay the sentence imposed on his vandalism conviction pursuant to section 654 because it was part of the same course of conduct as the burglary and was incidental to that crime. He argues that there is no substantial evidence that he broke the bedroom window and damaged the victim's bed "with any intent or objective other than to effectuate the burglary by allowing [him] to enter the house." The Attorney General argues that burglary and vandalism convictions were based on different acts in that defendant "committed vandalism when he broke [the victim's] bedroom window and damaged her bedroom furniture before walking to the front of the house and separately committing burglary by breaking another window to gain access to her home."
As defendant notes, both the victim and her daughter described defendant's conduct in breaking the bedroom window as a failed attempt to get into the house. The victim testified, "he put his fist or whatever through my window and my headboard. [¶] I guess he couldn't get in through past the headboard, so he turned around and he came back out and he broke the little side window." Her daughter testified, "He threw something through her back window, and it went through her window. And she has a glass headboard, and it actually broke through too. [¶] So then he couldn't get through that window because the headboard was blocking it. He runs around to the front and the window next to our front door. He punches the window with his hand and breaks it, and he's trying to hop in the window." The prosecutor argued the same in closing: "[T]he evidence showed that the defendant went to the bedroom window and broke that window first. The moment that he put his hand through that window and broke it, that was burglary. It was done at that point. What he continued to do was . . .[an] additional burglary. He broke the front window, and then he went in." With respect to the vandalism charge, the prosecutor made no attempt to differentiate the acts. The prosecutor argued that the cost to repair the two windows was $409 and that the victim testified the cost to replace her headboard would be $1000 so that the "combined" amount was "more than the threshold for the vandalism count." The evidence thus establishes that the two windows were broken as part of a single course of conduct. There is no substantial evidence to support the finding that defendant harbored independent criminal objectives in committing the burglary and the vandalism.
The jury was instructed that to find defendant guilty of vandalism, it must find that "the amount of damage caused by the vandalism was $400 of more." --------
Disposition
The judgment is modified to stay execution of punishment on count four, vandalism, reducing defendant's aggregate sentence to 15 years. As so modified, the judgment is affirmed.
/s/_________
Pollak, J. We concur: /s/_________
Siggins, P.J. /s/_________
Jenkins, J.