Opinion
E080031
04-23-2024
THE PEOPLE, Plaintiff and Respondent, v. HANY FARAHAT HANNA, Defendant and Appellant.
Sally Patrone, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV21004673 Kyle S. Brodie, Judge. Affirmed.
Sally Patrone, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant, Hany Farahat Hanna, appeals from his conviction for felony vandalism in violation of Penal Code section 594. We will affirm.
All further statutory references are to the Penal Code.
BACKGROUND
In the early hours in the morning of December 21, 2021, defendant entered a bail bond business in Fontana, California, through a sliding glass window he had broken. Another window in the same frame was cracked. At the time of defendant's entry, the business, which was housed in a building near the West Valley Detention Center, was closed and locked up. While defendant was in the building, he caused damage when he forced open a locked cabinet and removed client files, he generally ransacked the office, took frozen meals out of the freezer and ate them, and made cocoa and spilled it on the carpet, causing stains.
A customer telephoned the owner of the business and reported the broken window. In response, the owner headed to the business, and called the sheriff's office while on the way. Defendant was walking out of the building when a San Bernardino County sheriff's deputy arrived. While at the scene, the owner told the deputy that the charge for boarding up the window was $310 and the estimate for repairing the window was $275.
Defendant was charged with, and a jury convicted him of felony vandalism with over $400 in resulting damage, a felony (§ 594, subd. (b)(1)) and found true an allegation that he had a prior serious or violent felony conviction (§§ 1170.12, subd. (a)-(d), 667, subd. (b)(i)). The jury found him not guilty of the charge of second degree commercial burglary.
The trial court sentenced defendant to a total prison term of two years and eight months, that is, the low term of 16 months, which was doubled on account of the strike. The court also found he had a total of 605 days credit (303 actual days of presentence custody credit, plus 302 days of conduct credit). Defendant timely noticed this appeal.
DISCUSSION
On appeal, defendant argues (i) the evidence of damages is insufficient to support a felony violation of section 594, and (ii) the trial court erred when it failed to instruct sua sponte on the defense of necessity.
Section 594 defines the crime of vandalism and provides different penalties depending on the amount of damage, defacement, or destruction. If the amount is less than $400, then the vandalism is a misdemeanor offense punishable by imprisonment in a county jail for a term not exceeding one year, or a fine of not more than $1,000, or a combination of those penalties. (§ 594, subd. (b)(2).) In cases in which the amount is $400 or more, the crime may be classified as a felony. (§§ 594, subd. (b)(1), 1170, subd. (h).)
1. The Sufficiency of Evidence to Support the Amount of Damages
Defendant argues his conviction for a felony violation of section 594 should be reduced to a misdemeanor because there is no solid evidence that substantially supports the jury's conclusion that he caused $400 or more worth of damage.
It is well settled that we review a claim of insufficiency of the evidence by examining the record in the light most favorable to the judgment to determine if it is supported by substantial evidence, that is, evidence which is reasonable, credible and of solid value such that a reasonable trier of fact could find a defendant guilty beyond a reasonable doubt. (People v. Medina (2009) 46 Cal.4th 913, 919 (Medina); People v. Suazo (2023) 95 Cal.App.5th 681, 691.)
Here, there is ample evidence sufficient to support the jury's finding of damages in an amount equal to or more than $400. The deputy testified that, on the morning of the break-in, the business's owner said the charge for boarding up the window was $310 and the estimate for repairing the window was $275 (a total of $585). The owner of the bail bond business testified he had not received a bill before speaking with the deputy, and that he paid $650 to board up the window and $530.40 to replace the glass (a total of $1180.40).
Contrary to defendant's claim, the fact that the owner's testimony conflicted with that of the deputy does not mean the witness's testimony credited by the jury is insufficient to support the judgment. Each of the witnesses testified that the cost of repairs exceeded $400. The testimony of a witness is sufficient to uphold a judgment even if contradicted by other evidence. (In re Frederick G. (1979) 96 Cal.App.3d 353, 366.)
Defendant posits that the evidence adduced to support the judgment is not solid because, during deliberations, the jury asked for the owner's testimony and asked whether "the invoice for the cost of the window replacement [is] considered valid evidence to the court." Defendant speculates those requests "indicat[e] the case was close" and that the jury "struggled" with reaching a decision on the repair cost. Based on those premises and with citations to People v. Diaz (2014) 227 Cal.App.4th 362, 384-385 (Diaz) and In re A.W. (2019) 39 Cal.App.5th941, 949, 951 (A.W.) he concludes that an actual invoice was required to accurately establish the specific amount of damages and, in the absence of that evidence, this court should reverse the judgment and remand the matter with directions to reduce the adjudications to misdemeanors. We are not persuaded.
We note that defendant's assertion in his reply brief that the jury "requested the invoice," is mistaken.
Naturally, any inference to be drawn from the jury's requests are to be resolved in favor of the judgment. (Medina, supra, 46 Cal.4th at p. 919.) Moreover, even if we were to surmise that the case was "close" as defendant claims, there is no call here for reversal with instructions to reclassify defendant's conviction as a misdemeanor, and the cases defendant cites do not provide support for argument.
In Diaz, the defendant was tried twice. (Diaz, supra, 227 Cal.App.4th at pp. 364365.) In the first trial, he was convicted of vehicular manslaughter while intoxicated, but a mistrial was declared as to the murder charge after a jury was unable to reach a verdict. (Id. at p. 365.) In the second trial, the People retried the defendant on the murder charge and a jury found him guilty. (Ibid.) On appeal from the murder conviction, the reviewing court found the trial court erred when it admitted two extremely prejudicial videos containing testimonials of persons whose loved ones were killed in alcohol-related vehicle crashes. (Ibid.) It held the error was not harmless because, during deliberations, the jury had questions about topics discussed only in the erroneously admitted videos, it twice reported being deadlocked, and the first jury, who was not shown the videos, was unable to reach a verdict on the murder charge. (Id. at pp. 365-366.) The court concluded that it was reasonably probable that defendant would have received a more favorable result but for the trial court's error in allowing the jury to view the videos. (Id. at p. 366.)
The circumstances in Diaz are not remotely similar to the ones now before us. Here, the evidence of damages caused by defendant was properly admitted into evidence and, as discussed ante, the verdict is properly supported by witness testimony.
Defendant is correct that A.W., supra, 39 Cal.App.5th 941, provides support for the proposition that a reviewing court may instruct the trial court to reduce a felony vandalism conviction to a misdemeanor if the evidence is insufficient to support a finding of $400 or more in damages. A.W. does not, however, support defendant's claim that the evidence in this case was insufficient because there was no bank statement or invoice to bolster the witness testimony.
In A.W., a minor child was declared a ward of the state after the court found he had committed five counts of felony vandalism (graffiti) in violation of section 594. (A.W., supra, 39 Cal.App.5th at p. 945.) There the judgment was reversed and remanded with directions to reduce the adjudications to misdemeanors because the only evidence introduced to establish damages was based upon the city's graffiti restitution cost calculation, a formulation based on averages unrelated to the actual cost of cleaning up the defendant's graffiti. (Id. at p. 951.) In addition to finding the average cost used in that case was calculated using a flawed methodology and also improperly included law enforcement costs, the court held as a general rule that simply citing an average cost for remediating graffiti is inadequate to establish the specific amount of damage for the purposes of section 594, that is, the use of an average may not be substituted for an individualized damages calculation. (Id. at pp. 949-951.)
We recognize that, in rejecting the evidence provided by a city-issued generic, one-size-fits-all "graffiti removal cost list" based on average costs, the court in In re Kyle T. stated that "[t]he most obvious way" to establish the amount of damages is by an invoice setting forth the actual cost of repairs. (In re Kyle T. (2017) 9 Cal.App.5th 707, 710-711, 713-714.) It did not, however, hold that an invoice is necessary. What is required is an amount-even if estimated-that is tethered to the cost of remediating the specific damage caused by defendant's vandalism. (Id. at p. 714.) Here, the testimony of the witnesses met that requirement.
2. The Trial Court's Failure to give a Sua Sponte Instruction on the Defense of Necessity
Defendant argues that, because defendant was cold and because he ate food once inside the bail bond business's premises, the trial court erred in not including the defense of necessity in the instructions given to the jury. We disagree.
The jury instruction for the defense of necessity is set forth in CALCRIM No. 3403. As relevant here, the instruction provides defendants must prove each of the following elements by a preponderance of evidence for the defense to apply: (i) they acted in an emergency to prevent a significant bodily harm to themselves; (ii) they had no adequate legal alternative; (iii) the defendants' acts did not create a greater danger than the one avoided; (iv) when the defendants acted, they actually believed that the act was necessary to prevent the threatened harm; (v) a reasonable person would also have believed that the act was necessary under the circumstances; and (vi) the defendants did not substantially contribute to the emergency. (CALCRIM No. 3403; People v. Verlinde (2002) 100 Cal.App.4th1146, 1164 (Verlinde), disapproved on other grounds in People v. Cook (2015) 60 Cal.4th 922, 939.)
It is settled that in criminal cases, a trial court has a sua sponte duty to instruct the jury on every theory supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case. (People v. Brooks (2017) 3 Cal.5th 1, 73.) The trial court must consider evidence which, if believed by the jury, would be sufficient to cause reasonable persons to conclude that particular facts underlying the instruction did exist. (Id. at p. at 75.) It does not, however, have a duty to give an instruction if evidence of the defense is minimal or insubstantial (People v. Barnett (1998) 17 Cal.4th 1044, 1145) or if it is based on conjecture and speculation (People v. Young (2005) 34 Cal.4th 1149, 1200). Doubts with respect to the sufficiency of the evidence to warrant giving an instruction should be resolved in favor of the defendant. (People v. Steskal (2021) 11 Cal.5th 332, 345.)
We review de novo a failure to give a jury instruction. (People v. Guiuan (1998) 18 Cal.4th 558, 569.)
Contrary to defendant's claim, the elements required to trigger the trial court's duty to give an instruction sua sponte were not present in this case. The only evidence tending to support a necessity defense was the owner's testimony that (i) it was chilly on the morning defendant broke into the business; (ii) defendant told him he was "feeling freezing," that he was "standing outside in the freeze," and it was "cold as ice"; (iii) on surveillance video, defendant was seen inside the business with a space heater in his hand; and (iv) defendant ate some food found in the building.
The facts that he was cold and hungry are insufficient to trigger the trial court's duty to give the necessity defense instruction to the jury. There is no evidence that defendant's state of being cold and hungry constituted an emergency that placed him at risk of significant bodily harm. Nor is there any evidence to support the conclusion that he lacked an adequate legal alternative to breaking into the business and ransacking it.
Defendant posits that the necessity instruction was required to be given because there was no evidence of any shelters open nearby, and asserts "[h]is alternatives were inadequate and economic forces were primarily to blame for his predicament." Defendant did not offer any evidence to establish that he was at immediate risk of substantial bodily harm, that he was unable to obtain shelter or other adequate legal alternative to breaking into the bail bond company's premises, or that there were economic forces out of his control that caused his predicament.
Defendant suggests the facts in his case are similar to those in In re Eichorn (1998) 69 Cal.App.4th 382, 390-391 (Eichorn). He is mistaken. Eichorn was convicted of violating a city's anticamping ordinance after the trial court made a pretrial ruling that he could not present a necessity defense. (Id. at p. 384.) Eichorn, unlike defendant, had made an offer of proof that he a 14-year resident of the city, was homeless, he had done everything he could to alleviate his condition, he was unable to find work that paid enough to allow him to obtain a place to sleep, and on the night he violated the ordinance, every shelter bed in the city available to a childless homeless man was occupied. (Id. at pp. 384-385.)
At trial, in an effort to establish the ordinance was unconstitutional as applied to him, Eichorn presented evidence relevant to establishing the defense of necessity. The evidence included that, on the night he was cited for violating the ordinance, the local shelters were full and the only potential place the defendant may have obtained shelter was several miles away and would have required him to walk through very dangerous areas of town, he established his history of employment and living circumstances history, and his history with the county's social services. (Eichorn, supra, 69 Cal.App.4th at pp. 385-387.) On appeal, the reviewing court granted Eichorn's petition for a writ of habeas corpus upon a finding that his offer of proof was supported by substantial evidence and he was entitled to raise a necessity defense. (Id. at p. 390.)
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J. CODRINGTON J.