Opinion
H023595.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. ANDREW DOUGLAS BURNETT, Defendant and Appellant.
Defendant Andrew Douglas Burnett was charged by information with grand theft by an employee (Pen. Code, §§ 484, 487, subd. (b)(3) - count 1), vandalism ( § 594 - count 2), unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a) - count 3), and giving false information to a peace officer (Veh. Code, § 31 - count 4, a misdemeanor). The information further alleged with respect to counts 1 and 2 that the value of the relevant property exceeded $ 50,000. ( § 12022.6, subd. (a)(1).) The excessive taking allegation as to count 2 was withdrawn by the prosecution prior to its submission to the jury. The jury found defendant guilty of all four counts, but found the excessive taking allegation as to count 1 not true. The trial court sentenced defendant to a state prison sentence of eight months (one-third the middle term) on count 1 to be served consecutive to the sentence imposed in an unrelated matter, stayed the sentences on counts 2 and 3 pursuant to section 654, and sentenced defendant to 10 days in jail with credit for time served on count 4. The court also ordered that defendant pay restitution of $ 60,589.27 to Pacific Bell.
Further statutory references are to the Penal Code unless otherwise specified.
On appeal defendant argues that, (1) there was insufficient evidence of territorial jurisdiction in the case to support the prosecution of him in Santa Clara County; (2) there was insufficient evidence to support the conviction of violating Vehicle Code section 10851; (3) there was insufficient evidence to support the conviction of vandalism; (4) the court prejudicially erred by giving CALJIC No. 2.71; (5) his trial counsel rendered ineffective assistance in several respects; and (6) the trial court erred in using the "brand new cost" standard in ordering victim restitution. We find no error requiring reversal and therefore affirm.
FACTS
The prosecutions case
Defendant did service repair work for Pacific Bell and was assigned a Pacific Bell van set up with a standard load of tools, safety equipment, signs, ladders, and various parts and hardware. The total cost of the van and contents was $ 60,589. On Friday, December 8, 2000, defendant was assigned duties in Mountain View and La Honda. Defendant did not return the van to the Santa Clara yard at the end of the day and did not have permission to take the van for the weekend. On Saturday, Keith Parks, an area manager for Pacific Bell, received a call from Jackie Figgins, defendants girlfriend. He told her that he did not know if defendants company van was there. Other employees searched the area for defendants personal truck but did not find it. On Monday, December 11, defendant did not show up for work. Parks then called the Santa Clara police department and filed a missing persons report.
On Tuesday, December 12, 2000, Santa Clara police officer Filemon Zaragoza spoke with defendants mother, sister, brother Matthew Fell, and Figgins. Shortly thereafter Zaragoza started leaving voice mail messages on defendants Pacific Bell cell phone. Defendant did not respond to any of the messages.
Santa Clara police sergeant Russell Donelson received a phone call from Figgins on December 16, 2000, at about 10:45 p.m. Figgins said that defendant had been in contact with her, that she had picked him up at a restaurant near her home, and that they were on their way to the hospital for treatment of injuries because defendant had been in an accident. Donelson asked to speak to defendant. When defendant got on the phone, Donelson asked him where he had been for the past eight days. Defendant said that he had been on Highway 1, south of Devils Slide, in his Pacific Bell van traveling approximately 40 to 45 miles per hour when he veered over a cliff to avoid a deer. He was able to escape the van and woke up six or seven hours later on a beach south of the location. He walked from there to Redwood City and took mass transit back to Santa Clara. There he picked up his car and went to a series of national parks in Northern California before finally contacting Figgins. Donelson arranged to meet defendant at the police department on Monday, December 18.
Santa Clara police officer Anthony Layton met defendant at the hospital on December 16, 2000, and took photographs of defendant with his consent. Defendant told Layton that he had sustained a bruise to his right side as a result of his vehicle going over a 150-foot cliff into the ocean. Layton saw no visible injuries on defendant, but did see some redness from tape that defendant had just removed from his right side.
On December 18, 2000, defendant met with Donelson and told him that he had been driving north on Highway 1, just south of Devils Slide, at about 7 or 7:30 p.m., when a deer jumped in front of his company van. He hit his brakes and veered to the left in an attempt to avoid hitting the deer. He felt himself going over the cliff and tried to open the door at least four times while also trying to undo his seat belt. He was trying to get over the step down portion of the van as it was picking up speed going over the cliff when he hit his head on the doorjamb and was rendered unconscious. He woke up wet and cold on a beach about one-half mile south of the crash site about six or seven hours later. He walked what he estimated to be 15 miles to Redwood City in order to take a train back to Santa Clara. He could not find a train station so he took a bus. He went to his truck, stayed with it for one-half to a whole hour, then took off driving. He stayed at Yosemite National Park one night, and then went to Stanislaus National Park, Lassen National Park, and Mt. Shasta over the next eight days before returning to Santa Clara and contacting Figgins.
Pacific Bell had provided information to police that defendants company-assigned cell phone had been used by accessing various cell sites that were consistent with defendants reported travels. The phone had been used to activate and access defendants voice mail. Donelson asked defendant if he had used his cell phone, and defendant responded that he had not because it had gone over the cliff with the company van. Defendant also said that nobody else had his "pin number."
An employee from Singular Wireless, formerly Pacific Bell Wireless, testified that the phone had been used 45 times between December 8 and December 16, 2000. The phone had been used in the Manteca area on December 9 and 10, in the Sacramento area on December 10 and 11, in the Placerville and Walnut Grove areas on December 11, in the Escalon and Salida areas on December 12, and in the Redding area on December 16.
Donelson asked defendant what injuries he had suffered as a result of his going over the cliff. Defendant said that he bumped his head and had some bruising and scratches. Donelson could not see any injuries on defendants face, neck, head, arms or hands.
Donelson followed defendant to the crash scene. At the scene there were tire tracks apparently made by the van as it was going over the cliff. There is a turnout approximately 100 yards long directly across the road from where the tire tracks were. There is a berm approximately 12 to 18 inches in height where the van went over the cliff. The ocean floor was approximately 450 feet below. Donelson testified that this is one of the few places where you can directly access the cliff edge along Highway 1 south of Devils Slide. The cliff here is approximately one-quarter of a mile wide at its greatest width. Down at the bottom of the cliff were the remains of the van, which consisted primarily of the chassis and firewall. There was a debris field about two or three hundred feet up the side of the cliff. The only way the accident reconstruction crew from the California Highway Patrol (CHP) could get down to the crash debris was by rappelling down the cliff. The sand beach where defendant said that he woke up started approximately one-quarter of a mile south of there and is approximately 75 yards wide at mid to low tide.
A video of the crash scene was played for the jury.
Donelson testified that, in his opinion, the angle of the cliff at that point was "anywhere from sixty to eighty degrees."
Eric Bisellach, a CHP officer who has patrolled Highway 1 near Devils Slide for the previous five years, went to the accident scene on December 18, 2000, and heard from defendant his report of what had happened. Bisellach testified that he has never seen nor received reports of deer in that area. Deer are found a mile north of the area or three-quarters of a mile south. Defendant told Bisellach that he did not report the incident to police or his employer for eight days because he was distraught by the incident and needed time to gather his thoughts. Defendant said that he had hurt his ribs and his wrist, that he had some bumps and bruises, and that he had cut the back of his head. When Bisellach examined defendant with his permission, Bisellach did not see any injuries or bruises. Although there had been a large amount of precipitation in the previous eight days, several paper items were recovered from the accident scene in very good condition and unsaturated. Although a tool belt was recovered, there were no tools in the belt and no tools were recovered from the van or the crash site. The seats of the van were still upholstered on December 18, but when Bisellach went back to the scene on December 21, the upholstery on the seats was completely ripped from the battering of the waves. And, although there had not been any precipitation in the area in the intervening days, the tread marks on the berm had started to dissipate by the time of Bisellachs second visit.
David Parsons, an investigator for Pacific Bell, interviewed defendant on December 19, 2000. Defendant told Parsons that, because he did not have a full workload on December 8, he had gone out to inspect some company equipment cabinets as part of a preventative maintenance program. Defendant checked one site in San Gregorio, two sites in Half Moon Bay, and another site on Whitehorse Road. He finished checking the sites at approximately 6:30 p.m. He planned on having dinner with his girlfriend at 8 p.m., and headed north on Highway 1 toward Pacifica. In the Devils Slide area he saw a deer dash onto the road and swerved to avoid hitting it. As the van started to go over a cliff at 40 to 45 miles per hour, he struggled to open the door, unbuckled his seat belt with some difficulty, and hit his head on the van as he exited it. He did not remember what happened after that until approximately six hours later when he woke up on the beach. He was soaking wet, but he still had his wallet and car keys. He eventually found a staircase that led up to the highway from the beach. He may have said that he attempted to flag down vehicles. He walked north until he got to a road heading east, then went over the hill to look for a train to take him back to the company yard. He described a road that would have brought him to the San Bruno area. He followed railroad tracks to Redwood City where he purchased a ticket from an automated ticket machine and then took the train to Santa Clara. He walked to the company yard to get his truck, which he had parked on a side road away from the normal employee parking area because he had left his dog in it. He sat in the truck for about one-half hour thinking about what had happened. He then started driving without any apparent destination, and ended up at the Stanislaus National Forest at three oclock Saturday afternoon. He stayed there two nights, sleeping on the ground. With his bare hands he caught a rabbit and ate it raw. He stayed in his truck a day in Yosemite, ate at a small place in El Portal, and then went north. He slept in his truck in a roadside rest stop south of Redding and spent a few days in the Lassen and Shasta areas. He caught some more wild animals using weapons and homemade traps, and cooked them over a fire. On Saturday, January 16, he decided to return to San Jose and contact his girlfriend. When he got near Figgins house he saw a lot of commotion from a nearby fatal traffic accident, so he paged Figgins to her office number from a nearby public phone. He did not use his cell phone as the phone was with the company van. Figgins did not show up in a fair amount of time so he was heading back to her house when he saw her and flagged her down. They went to a restaurant and had dinner. There he told Figgins of his adventure. He did not report the accident sooner because he needed time to think before he decided what he was going to do.
Parsons testified that the Santa Clara police department is approximately one block away from the Santa Clara train station, and that you pass by it if you walk towards the Pacific Bell yard from the station.
Although defendant chose not to sign a typed statement generated at the time of Parsons interview of him, defendant did indicate after reviewing the statement that it was an accurate description of the events.
The written statement itself was not admitted into evidence.
On December 21, 2000, CHP officer Christopher Childs, who testified as an expert in collision reconstruction, looked at the accident scene in order to try to determine the possible speed of the van as it mounted the berm. He determined based on the tire tracks and where the van first hit the side of the cliff that the van was traveling less than 13 miles per hour when it went over the cliff. It took no more than 2.2 seconds for the van to hit its first impact point, which was about 113 feet straight below. If the van had been going 45 miles per hour, the van would have more than likely cleared most of the cliff and first impacted closer to the water, which was approximately 213 feet straight below. Other CHP officers rappelled down the cliff and recovered the cover of a Pacific Bell cell phone, a pager, and defendants Pacific Bell identification.
On January 3, 2001, pursuant to a search warrant, Donelson searched Fells Merced residence and defendants truck, which was found at the residence. Zaragoza had learned from Figgins and defendants family members that defendant was staying with Fell. A Pacific Bell handset was found in Fells residence. In defendants truck Donelson found an REI store receipt dated December 4, 2000, for batteries, a floor safe, and a tent. Donelson also found a tent, a sleeping bag, and a length of rappelling rope in the truck. Donelson also searched a storage locker belonging to defendant. In it he found a Pacific Bell safety helmet in a packing box. No other property belonging to Pacific Bell was found in the truck, in the storage locker, or in Fells residence.
Zaragoza and Donelson interviewed defendant again on January 4, 2001. At that time defendant said that he had purchased the tent and sleeping bag found in his truck somewhere between Yosemite and Lassen during the eight days he was gone because he had been caught in a snowstorm. Defendants basic rendition of the facts surrounding the crash remained unchanged. Zaragozas estimate of the distance defendant reportedly walked from the beach where he woke up to Redwood City is approximately 80 miles. Zaragoza asked defendant if he knew how to rappel, and defendant said that he did. Defendant admitted to Zaragoza that he was "maxed out" on several credit cards, and Zaragoza learned that defendant was $ 4,000 in arrears on his rent and approximately $ 1,300 in arrears on his truck payment. Defendant said that he had requested a job transfer to Carson City or Reno, Nevada, and that he planned to move to that area with Figgins. When Zaragoza later booked defendants black leather wallet into evidence, the wallet contained various photographs, credit cards, and an identification card. Neither the wallet nor its contents appeared to be saltwater damaged in any way.
The defense case
Figgins was supposed to meet defendant for dinner at 8:30 p.m. on Friday, December 8, 2000, and to go to Carson City with him for the weekend to look for an apartment. She worked as a dental assistant, and her last day of work was that day. She and defendant were planning to move to Carson City because defendant had requested a transfer. Defendant had been staying at several different places because he had been evicted from his apartment. She became worried when defendant did not call her. She called Parks on Saturday, December 9, at about 7 p.m. to report defendant missing. Defendant did not call Figgins the entire week he was gone.
On December 16, at about 9 p.m., Figgins received a page from her work. She called the office but nobody answered, so she decided to drive there. She saw defendant and they went to a restaurant by her office. They stayed for about one-half hour and got something to eat. At that time she observed a gash on the crown of defendants head and cuts on his hands. Defendants ribs were taped up and when she attempted to hug him he pushed her away. She contacted Donalson and accompanied defendant to the hospital. They did not leave the hospital until 7 a.m. the next day.
Defendant testified in his own behalf that he started working for Pacific Bell in April 1998. He was planning to transfer from the San Jose area to work for Nevada Bell because of the lower cost of living there. He expected to pay off his approximately $ 10,000 debt upon his transfer. He made about $ 55,000 to $ 62,000 at Pacific Bell. The week of December 4, 2000, he moved from hotel to hotel. He stored some of his things at Fells, other things in a storage container, and the most important things in his truck.
Defendant learned to rappel while in the service. He bought the tent on sale at REI because he wanted to be able to do more camping with Figgins and her son once he moved to Nevada. He bought the 50-foot rope found in his truck "real cheap" to use for towing, camping, or other things. The safety helmet found in his storage unit was issued by his company with an expiration date. The date had expired so he was not supposed to use it anymore and to throw it away. He kept it as a souvenir.
When defendant first saw the deer in his headlights, he was going about 40 to 45 miles per hour. He slammed on the brakes but they did not work well. When he swerved left toward the cliff to avoid the deer, he lost control of the van. He struggled to get his seat belt off. The van went over the berm and he tried to get the door open, but the van was going so fast that the door kept shutting on him. He was finally able to force his way out the door. He hit his head several times on the metal near the door and the next thing he remembers is waking up on a beach. He was soaking wet, dazed and confused about what had happened, and feeling glad to be alive. He had a cut on his head and cuts on his hands, a lot of pain in his right ribs, and a sore knee and elbow. He could not explain how he did not suffer any other injuries. He tried to figure out where he was and tried to get to some place that he recognized. He found a staircase that led off the beach and ended up on Highway 1. He tried to flag down a couple of cars but nobody stopped. He walked over the hill on a road to the San Bruno area and tried to locate some kind of transportation to get back to the Santa Clara yard. He got on the train in the Millbrae area after using a ticket machine.
Defendant got off the train in Santa Clara. Although he walked right by the Santa Clara police department on his way to his truck, he did not think about stopping and reporting what had happened. He does not know why he did not call somebody; he was dazed and stunned and knew that he could take care of himself if he could get back to his truck where he had some first aid supplies. When he got to his truck at about 10 a.m., he cleaned up some of the cuts and took a nap for a few minutes because he was exhausted. His dog had been in the truck over 24 hours, so he made sure that she had food and water and took her for a walk. He then just started driving. He did go to the four national parks, but not necessarily in the order mentioned.
Defendant does not remember telling Parsons that during his trip he caught a rabbit and ate it raw. He does not remember saying that he later caught other animals using weapons and homemade traps, and cooked them over a fire. He talked about walking with his dog and doing things in the forest. His dog is a Labrador retriever, and he has taught her to bring back animals that she finds. She would disappear for a while and come back with an animal, such a bird or rabbit, in her mouth. He did use a shotgun that he has had for a while, and tried to get some birds, but did not get any. He does not have a hunting license but did not know if he needed one where he was at the time. He had no explanation for why somebody was using his cell phone while he was gone, because it had been in the company van.
When he returned on December 16, he drove to Figgins house, but police had blocked off the area due to what he later learned was a fatal accident at the corner by her house. He then drove one-half mile to Figgins office, paged her from a pay phone, and waited for her in the parking lot. When he did not see her coming after two or three minutes, he decided to drive back to her house. As he was leaving the parking lot, Figgins was coming the other way. They both pulled into the restaurants parking lot, went in, and got something to eat. Figgins told him that he needed to go to the hospital, so she drove him there and called Donelson on the way. When they arrived, they briefly described to the ER nurses what had happened. He was rushed back to be evaluated, but it was two to three hours before he saw a doctor.
The wallet that was booked into evidence was not the wallet defendant used at work. In his work wallet he just carried his drivers license and cash for the day. He has lost a couple of wallets doing maintenance at various occasions. This wallet would have been in his truck. He had cashed his paycheck on December 8, and put the cash, between $ 2,000 and $ 3,000, in his wallet in the truck.
DISCUSSION
Territorial jurisdiction
Defendant first argues that there is insufficient evidence of territorial jurisdiction in this case to support his prosecution in Santa Clara County. The People argue that defendant waived any error by failing to raise the issue in the trial court.
"The subject matter jurisdiction of every superior court in California embraces the entire State of California. A California superior court has subject matter jurisdiction to conduct felony trials and to impose sentences for felonies defined by California statutes, as long as the felonies are committed within the state, even though some or all of them may be committed outside of the county in which that court sits. [Citation.] Such a court does, however, act in excess of its territorial jurisdiction if, in violation of section 777,[ ] it conducts a trial for an offense committed outside of the county in which it sits, over objection, and a judgment of conviction resulting from such a trial would be subject to reversal on appeal. [Citation.]" (People v. Remington (1990) 217 Cal. App. 3d 423, 428-429, 266 Cal. Rptr. 183 (Remington ).)
Section 777 provides, "Every person is liable to punishment by the laws of this State, for a public offense committed by him therein, except where it is by law cognizable exclusively in the courts of the United States; and except as otherwise provided by law the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed."
"Pursuant to the general legal doctrine that a party may forfeit a right by failing to assert it in a timely fashion, a defendant in a felony proceeding forfeits a claim of improper venue when he or she fails specifically to raise such an objection prior to the commencement of trial. . . . In light of the fundamental purposes underlying criminal venue provisions, the interests of both the accused and the state support a requirement that any objection to the proposed location of a felony trial must be specifically raised prior to the commencement of trial, before the defendant is required to undergo the rigors and hardship of standing trial in an assertedly improper locale, and before the state incurs the time and expense of conducting a trial in that county." (People v. Simon (2001) 25 Cal.4th 1082, 1086-1087 (Simon).) In Simon, the defendant challenged his convictions on appeal in part on the ground that the trial court erred in failing to either direct a verdict in his favor or to instruct the jury on the question of venue. The Court of Appeal rejected the claim, concluding that defendant had waived any objection to venue in Contra Costa County by failing to raise such an objection at the preliminary hearing. In discussing the venue issue, the Court of Appeal recognized that past California appellate decisions had been inconsistent regarding the proper procedure for raising, preserving, and resolving a claim of improper venue in a felony prosecution, and the Court of Appeal urged the California Supreme Court to provide guidance on the matter. The Supreme Court granted review in order to provide such guidance. (Id. at p. 1086.)
The Supreme Court stated, "It is now established beyond question that the issue of venue does not involve a matter of subject matter jurisdiction." (Simon, supra, 25 Cal.4th at p. 1096.) "It is equally well established that a defendants right to be tried in the venue authorized by statute is a right that is subject to waiver by the defendant. . . . In the absence of another applicable statute the venue of a felony proceeding in California is set by statute in the county in which the alleged offense occurred. ( § 777.)" (Id . at p. 1097.) "The question presented by this case is whether a defendant properly should be held to have forfeited his or her right to object to such venue by failing specifically to raise such an objection in a timely fashion." ( Ibid.) "As noted by the opinion of the Court of Appeal in the present case, past California decisions do not provide consistent guidance on this question." (Id. at p. 1099.) The Supreme Court noted that the holding in recent Court of Appeal decisions such as Remington, supra, were clearly inconsistent with early decisions indicating that a defendants entry of plea of not guilty was by itself sufficient to preserve for appeal the issue of venue. (Simon, supra, 25 Cal.4th at p. 1101.)
The Supreme Court concluded that a defendant who fails to assert a timely objection to venue forfeits the right thereafter to object to venue, but that a defendants entry of a not guilty plea is insufficient to assert such an objection. (Simon, supra, 25 Cal.4th at p. 1106.) It further concluded that, "in the absence of an explicit statutory provision establishing an earlier time by which a challenge to venue must be raised in a felony proceeding, a specific objection to venue by a defendant should be considered timely if made prior to the commencement of trial." (Id. at p. 1107.) The court overruled prior decisions of its court or the Court of Appeal that were inconsistent with this conclusion. (Id . at p. 1108.) However, it then held that its "holding in this case-that a defendant in a felony proceeding who wishes to object to venue must make a specific objection to venue prior to the commencement of trial-should be applied only prospectively." (Ibid.)
Defendant argues that the waiver rule articulated in Simon is not applicable to his case because his trial commenced on July 17, 2001, and Simon did not become final until July 25, 2001. The People argue that only the rule that a specific objection must be made prior to the commencement of trial is prospective, and not the general rule that a complete failure to raise an objection to venue in the trial court constitutes a waiver of that issue on appeal. We agree with the People. As the Supreme Court stated in Simon, supra, it has been well established that a defendants right to be tried in the venue authorized by statute is a right that is subject to waiver by the defendant. (25 Cal.4th at p. 1097.) Defendant acknowledges that he did not raise an objection to venue at any time in the trial court. Accordingly, he has waived any right to object on appeal.
Sufficiency of the evidence
In analyzing a challenge to the sufficiency of the evidence, we "review the whole record in the light most favorable to the judgment and decide whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson [(1980)] 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.) Under this standard, the court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [Citation.] Instead, the relevant question is 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. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319, 61 L. Ed. 2d 560, 99 S. Ct. 2781.)" (People v. Hatch (2000) 22 Cal.4th 260, 272, 991 P.2d 165.) In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reassess the credibility of witnesses. (See People v. Jones (1990) 51 Cal.3d 294, 314, 270 Cal. Rptr. 611, 792 P.2d 643.)
Defendant argues that the evidence presented was insufficient to support a finding that he violated Vehicle Code section 10851. Defendant argues that because he obtained possession of the van with the consent of Pacific Bell, and because Vehicle Code section 10851 requires a taking without consent, there is insufficient evidence to support his conviction for that offense. The People argue that, to the extent that the evidence showed that defendant continued to drive the van after it was supposed to be returned to the company yard at the end of the day on December 8, 2000, defendant was "driving a vehicle not his own, without the consent of the owner thereof." (Veh. Code, § 10851.)
Vehicle Code section 10851, subdivision (a), specifies that it is a crime for a person to "drive[] or take[] a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle." "There is no question that Vehicle Code section 10851 can be violated simply by the act of driving a car without the owners consent; the defendant need not have committed the original act of taking the car from the owner. [Citations.]" (People v. Frye (1994) 28 Cal.App.4th 1080, 1086.) Moreover, when a person has the owners permission to use a vehicle for a specific time and purpose, and he or she keeps possession for longer than the agreed time and for a different purpose, the person violates Vehicle Code section 10851. (See e.g., People v. Starkey (1965) 234 Cal. App. 2d 822, 828-829, 44 Cal. Rptr. 738 [failure to return a rental truck]; People v. Hutchings (1966) 242 Cal. App. 2d 294, 295, 51 Cal. Rptr. 415 [failure to return for several hours a vehicle taken with permission for a 40 minute test drive].)
Defendant acknowledges that, according to the prosecutions evidence, and the inferences that can be drawn therefrom, defendant was supposed to return his company van to the Santa Clara yard the evening of Friday, December 8, 2000, and he did not have permission to have the van over the weekend. However, after December 8, 2000, defendant was driving around in other areas in northern California disposing of the equipment and supplies that had been in the company van. The van itself was "discarded" and damaged in the Devils Slide area of Highway 1 some eight days after defendants initial driving away in the van the evening of December 8. Defendants conduct was a clear violation of Vehicle Code section 10851, and we will not set aside his conviction.
Defendant also argues that his conviction for vandalism is not supported by the evidence. He argues that where, as here, according to the prosecutions evidence, the destruction of the van was done to cover up another crime, the conduct concerning the destruction of the van was not done "maliciously" as required by section 594. The People argue that there was ample evidence to show that defendant maliciously destroyed the van within the meaning of section 594.
At the time of defendants offense, section 594 stated in pertinent part, "(a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, . . . is guilty of vandalism: [P] (1) Defaces . . . . [P] (2) Damages. [P] (3) Destroys." (Stats. 1999, ch. 83, § 144, p. 1326.) "The words malice and maliciously" import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." ( § 7, subd. 4.) The use of the term "malice" or "maliciously" in a penal statute is generally an expression of general criminal intent. (See People v. Atkins (2001) 25 Cal.4th 76, 85-86, and the cases cited therein.) " 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.) Section 594 requires only an intent to do the act that causes the harm, be it the defacement, damage or destruction of property; it does not require an intent to cause the resulting harm.
People v. Campbell (1994) 23 Cal.App.4th 1488, cited by defendant, does not hold otherwise. In that case the appellate court stated that it is generally held that the term "malice" in statutes dealing with crimes against property " calls for more than mere intentional harm without justification or excuse; there must be a wanton and willful (or "reckless") disregard of the plain dangers of harm, without justification, excuse or mitigation. [Citation.]" (Id. at p. 1493.) The court then went on to hold that felony vandalism is a crime involving moral turpitude, as are numerous other general intent crimes. (Ibid.) In this case, there was ample evidence to support the implied finding that defendant intentionally and willfully caused the van to go over the cliff on Highway 1, without justification, excuse or mitigation, which resulted in its destruction. That is all that is required for a conviction under section 594. Defendants felony vandalism conviction will not be set aside.
CALJIC No. 2.71
The trial court instructed the jury, pursuant to CALJIC No. 2.71, as follows: "An admission is a statement made by a defendant which does not itself acknowledge his guilt for the crime for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence. [P] You are the exclusive judges as to whether the defendant made an admission, and if so, whether the statement is true in whole or in part. [P] Evidence of an oral admission of the defendant not made in court must be viewed with caution." When the evidence warrants, the trial court must give this cautionary instruction sua sponte. (People v. Carpenter (1997) 15 Cal.4th 312, 392, 935 P.2d 708; People v. Stankewitz (1990) 51 Cal.3d 72, 93-94, 270 Cal. Rptr. 817, 793 P.2d 23.)
Defendant argues that the court erred in giving this instruction in his case as his statements to various authorities prior to trial were exculpatory on their face, so the trial court effectively told the jury to view these exculpatory statements with suspicion. Defendant argues that CALJIC No. 2.71 amounted to an impermissible comment by the court on the evidence concerning the credibility of defendants version of the events, and that "what makes matters worse" is that a copy of CALJIC No. 17.32 was included in the packet of written instructions given to the jury. The record indicates that CALJIC No. 17.32 was requested by the People, and the court agreed to give it, but the court later chose not to do so when it actually orally instructed the jury. Defendant complains of the part of the written instruction that states, "At this time, however, and for the purpose of assisting you in properly deciding this case, I will comment on the evidence and the testimony and believability of any witness." However, the written instruction then states, "My comments are intended to be advisory only and are not binding on you as you must be the exclusive judges of the facts and of the believability of the witnesses. [P] You may disregard any or all of my comments if they do not coincide with your views of the evidence and the believability of the witnesses." Because the court did not orally give CALJIC No. 17.32 or comment on the testimony and believability of any witness, the fact that a written copy of the instruction may have been included in the packet given to the jury does not help defendants argument concerning the giving of CALJIC No. 2.71 in his case.
The People argue that defendant waived any claim that it was error to give CALJIC No. 2.71 by failing to object or request modification below. " Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]" (People v. Guiuan (1998) 18 Cal.4th 558, 570, 957 P.2d 928.) "Defendant is not entitled to remain mute at trial and scream foul on appeal for the courts failure to expand, modify, and refine standardized jury instructions." (People v. Daya (1994) 29 Cal.App.4th 697, 714.)
In his reply brief, defendant argues that waiver does not apply because the instruction was not too general or incomplete, but "was just outright erroneous" because "each and every[ ]one of defendants out-of-court statements is exculpatory, not inculpatory." Defendant misreads the instruction as applying to all statements made by a defendant rather than, as the instruction makes clear, only to statements that the jury finds are admissions.
Numerous courts have rejected defendants argument that CALJIC No. 2.71 allows jurors to view exculpatory statements with caution. The instruction defines an admission as a statement tending to prove guilt. As the court noted in People v. Vega (1990) 220 Cal. App. 3d 310, 317-318, 269 Cal. Rptr. 413, "By its terms, the language applies only to statements which tend to prove guilt and not to statements which do not. [P] . . . [P] We are convinced a jury is capable of discerning whether an extrajudicial statement is an admission, which they are instructed to view with caution, or whether the statement is not an admission, to which the cautionary language does not apply."
This court reached a similar conclusion in People v. Senior (1992) 3 Cal.App.4th 765, 777. There we observed, "Defendant contends this instruction caused the jury to view with caution statements on which his defense relied. However, defendant relied on his prior statements to exculpate, not incriminate, himself. Some statements may be both exculpatory and incriminatory, such as defendants acknowledgements of molestation without mention of force or duress. While such a statement tends to prove his guilt of a sex crime, it tends to prove his innocence of employing force or duress. Juries understand that this instruction by its terms applies only to statements tending to prove guilt, not to exculpatory ones. To the extent a statement is exculpatory it is not an admission to be viewed with caution. [Citation.] There was no error in giving this instruction."
Because CALJIC No. 2.71 is a legally correct instruction, defendants failure to object or request a modification of it in the trial court waived the issue on appeal.
Ineffective assistance of counsel
Defendant argues that trial counsel rendered ineffective assistance on several occasions. Specifically, defendant asserts that counsel rendered ineffective assistance during cross- examination of Zaragoza by bringing out that, (1) the officer did not believe defendant as to the events of the charged offenses; (2) the officer did not believe defendant as to some other things defendant had stated to the officer; (3) the officer believed that there was no way defendant could sell the tools from the van to pay the amounts defendant owed to his creditors; (4) the officer believed that the motive for the offenses was so defendant could flee from a Merced County case; (5) the officer knew that defendant harbored anti-police sentiments; (6) the officer knew that defendant had a suit against the CHP; (7) the officer could not interview defendant on December 19 because defendant pretended to be unconscious in the county jail, but the officer saw defendant bend back a finger of a nurse. Defendant also argues that trial counsel was ineffective due to his failure to object to, (1) the evidence of defendants indebtedness; and (2) testimony by Zaragoza during redirect examination that the officer believed that the tools were taken out of the van before the van went over the cliff.
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsels performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that " but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. " [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 569, see Strickland v. Washington (1984) 466 U.S. 668, 687-688, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal. Rptr. 732, 590 P.2d 859.)
"Whether to object to inadmissible evidence is a tactical decision; because trial counsels tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsels incompetence." (People v. Hayes (1990) 52 Cal.3d 577, 621, 276 Cal. Rptr. 874, 802 P.2d 376.) " Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. . . . A reviewing court will not second-guess trial counsels reasonable tactical decisions. [Citation.]" (People v. Riel (2000) 22 Cal.4th 1153, 1185, 998 P.2d 969.) "Because after a conviction it is all too easy to criticize defense counsel and claim ineffective assistance, a court must eliminate the distorting effects of hindsight by indulging a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Citations.] [Citation.]" (People v. Mendoza (2000) 24 Cal.4th 130, 158.) Where counsels trial tactics or reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions. (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Defendant admits that trial counsel several times indicated that the evidence he solicited from Zaragoza on cross-examination went to the defense theory of the case. Counsel indicated this both during his cross-examination of Zaragoza when the prosecutor objected to some of the above questions, and during counsels closing argument to the jury. Defense counsel tried to argue that defendants case had become a "personal crusade for the prosecution," and did argue that the value of the tools alone would not free defendant of his financial problems and that the most expensive item allegedly taken was at the bottom of the cliff. Defense counsel also argued that even if the jury did not believe defendant the prosecution had not proved its case beyond a reasonable doubt. Given trial counsels indicated defense theory of the case, we cannot say that counsels challenged acts and omissions were anything at the time other than " sound trial strategy. " (See, Strickland v. Washington, supra, 466 U.S. at p. 689.) Defendant has not shown on this record that trial counsel rendered ineffective assistance.
The trial court sustained the prosecutors objection to defense counsels use of these exact words and instructed the jury to disregard them. The trial court also sustained the prosecutors objection to defense counsels argument that Zaragoza "did everything he could to make sure that all the allegations [that] could be brought against Mr. Burnett were brought," and ordered the jury to disregard that comment.
Restitution order
As noted above, the court ordered defendant to pay $ 60,589.27 in restitution to Pacific Bell. The amount was based on the replacement cost of the van and tools it lost. At the time of sentencing, defendant argued that restitution should not be based on the cost of a new van and tools, considering the van and tools were used. On appeal defendant argues that the court erred in using the "brand new cost" standard, as the proper standard is the replacement cost for the condition of the property at the time of its destruction or loss. The People agree that, generally, the restitution award is predicated on the " replacement cost of like property. " (See People v. Thygesen (1999) 69 Cal.App.4th 988, 995.) However, where it is impossible to find such items, the trial court has the discretion to determine the amount that will make the victim whole. (Id. at p. 992.)
"In every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim or victims . . . based on the amount of loss claimed by the victim . . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record." ( § 1202.4, subd. (f).) "To the extent possible, the restitution order shall . . . be of a dollar amount that is sufficient to fully reimburse the victim . . . for every determined economic loss incurred as the result of the defendants criminal conduct, including, but not limited to, all of the following: [P] (A) Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible." ( § 1202.4, subd. (f)(3).)
"Restitution orders may not be based merely upon the trial courts subjective belief regarding the appropriate compensation; there must be a factual and rational basis for the amount ordered . . . ." (People v. Carbajal (1995) 10 Cal.4th 1114, 1125, 899 P.2d 67.) Trial courts have broad discretion to use any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole. (People v. Tucker (1995) 37 Cal.App.4th 1, 6.) A victim restitution order should not exceed the victims actual losses. (People v. Nguyen (1994) 23 Cal.App.4th 32, 45.) The use is section 1202.4, subdivision (f), of the phrases "full restitution," "fully reimburse," and "every determined economic loss" indicates that the statute "should be construed expansively to permit the victim to recover all determined economic losses." (See People v. Nguyen, supra, 23 Cal.App.4th at p. 44.)
A trial courts determination of restitutionary responsibility will be sustained unless it constitutes an abuse of discretion or rests upon a demonstrable error of law. (People v. Draut (1999) 73 Cal.App.4th 577, 581.) While the amount of direct victim restitution assigned by the court need not mirror the damages available through a civil action or the victims exact economic losses, the amount must be determined by rational calculation and may not be arbitrary or capricious. (People v. Carbajal, supra, 10 Cal.4th at p. 1121; People v. Draut, supra, 73 Cal.App.4th at p. 582.)
In this case, the trial court ordered defendant to pay restitution to his employer so that the employer could replace the van and its contents that defendant stole and/or destroyed. The employer lost not only the van and contents themselves, but the use of these items during the period of time it took to replace them. The restitution amount ordered by the court was determined by the amount it cost the employer to replace all the property lost and/or destroyed, which was a rational determination. Because there was a factual and rational basis for the trial courts order, we cannot say that the restitution order was arbitrary or capricious. There is no need to remand the matter for a new restitution hearing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Premo, Acting P.J., Bamattre-Manoukian, J.