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People v. Banuelos

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jun 26, 2018
No. D073188 (Cal. Ct. App. Jun. 26, 2018)

Opinion

D073188

06-26-2018

THE PEOPLE, Plaintiff and Respondent, v. GABRIEL BANUELOS, Defendant and Appellant.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD269641) APPEAL from a judgment of the Superior Court of San Diego County, Steven E. Stone, Judge. Affirmed. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Gabriel Banuelos of three counts of felony vandalism (Pen. Code, § 594, subd. (a)(b)(1); counts 1-3) and one count of misdemeanor vandalism (§ 594, subd. (a)(b)(2)(A); count 4). The court granted Banuelos probation on various terms and conditions.

All further statutory references are to the Penal Code unless otherwise specified.

Banuelos appeals contending, for the first time on appeal, that count 4 is a lesser included offense of count 3 and therefore his conviction for count 4 violates his right against double jeopardy. The nub of this contention is that under the so-called "converse Bailey doctrine" the misdemeanor vandalism count should be incorporated into the felony offense committed against a separate victim on the same occasion. First, we will find the claim of double jeopardy forfeited by failure to raise the issue in the trial court. Second, our Supreme Court significantly limited the "Bailey" doctrine in People v. Whitmer (2014) 59 Cal.4th 733 (Whitmer) such that offenses against separate victims committed on the same occasion may be prosecuted as separate offenses. Finally, we will reject appellant's contention that we should apply the "unit of prosecution" concept raised by the dissenting justice in Whitmer, which doctrine was not discussed by the majority in that case. We will affirm the judgment.

People v. Bailey (1961) 55 Cal.2d 514 (Bailey).

STATEMENT OF FACTS

This appeal does not challenge the admissibility or sufficiency of the evidence to support the convictions. Nor is there any dispute that Banuelos committed the acts of vandalism. Rather, the appeal is about the legal effects of the facts.

We find the People's summary of the facts to be accurate and helpful in reciting the events that occurred in this case. Therefore, we will incorporate the statement of facts from the respondent's brief.

A. Vandalism to Ajax

Steve Sanders owned a business, Ajax, located at 2355 India Street. The building where the business was located was a warehouse divided into separate stores. The store had big glass pane windows that were five feet by three or four feet wide. There was a surveillance camera operating at the store. The surveillance system allowed Mr. Sanders to check the store remotely and observe the camera surveillance, something he did often. The system also sent an alert to him on his phone if there was activity, sound or motion, in or around the store.

On November 8, 2016, he was in his car when he received an alert from the surveillance system and looked at the footage from the video surveillance. He saw someone "tagging," writing something on the window of the store. The person was Hispanic, and was wearing dark shorts and a dark sweatshirt. Mr. Sanders called 911. While he was on the phone with the 911 operator, he drove to the location of the store to see if he could find the "tagger." He drove around the block from his business and saw two men, one of which looked like the person he saw on the surveillance video. He told the 911 operator what he saw, the police arrived in patrol cars and detained the two men. Three of the windows to his business were damaged with similar markings. The etchings on the windows were not there prior to the night he was alerted. To the south of Ajax on India Street, a business named Rakiraki had similar markings on its windows. Mr. Sanders identified appellant as the person he saw on the surveillance footage damaging the windows to his business. The damaged glass from the vandalism at Ajax was replaced at a cost of $1,004.02.

The 911 call was played for the jury.

Photographs of the damage to the windows were admitted in evidence and published to the jury.

San Diego Police Officer Jacob Dawson received a dispatch from the 911 operator at approximately 1:00 a.m. The dispatch call was for a vandalism in progress and the suspects were described as a heavyset Hispanic male wearing a black jacket and tan shorts and another Hispanic male wearing a dark shirt and dark pants. Officer Dawson observed persons matching the descriptions about a block from the Ajax business. The two subjects were detained; one was appellant, the other was named Cordova. Appellant was searched and he had a set of keys and a rock with a pointed end in his jacket. Appellant was the person on the surveillance video vandalizing the store window.

San Diego Police Detective Brian Roberts was assigned to a unit dealing with graffiti. A "bombing run" is when a person or group spray paint or etch a number of properties in an area in a short period of time. Etching is a common method of vandalism where the person uses a sharp object to cut into glass, wood, or paint. A rock could be such a sharp object.

B. Vandalism at Rakiraki

Detective Roberts was assigned the investigation of vandalism in the India Street area that took place on November 8, 2016. He went to Ajax, spoke to Mr. Sanders and then went to a business just a block south of Ajax, Rakiraki Pokirrito. At Rakiraki, Detective Roberts saw etchings in the glass windows consistent with what he saw at Ajax, including the name "Jay." Video from surveillance at Rakiraki showed appellant vandalizing the windows there too. The damaged windows from the vandalism at Rakiraki were repaired at a cost of $4,009.

C. Vandalism of Peter Chester Antique Repair and Restoration

On November 9, 2016, Detective Roberts drove around the area of Ajax and Rakiraki to determine if any other businesses had been vandalized. He saw that two other businesses in the area had been vandalized, French Garden Shoppe at 2307 India Street and Peter Chester Antique Repair and Restoration at 2317 India Street. The two businesses were in the same building, a block from Rakiraki, and right next door to Ajax. The vandalism at Chester Antique and French Garden Shoppe were also done by etching into glass and had similar markings as Ajax and Rakiraki.

Catherine Chester and her husband owned Peter Chester Antique Repair and Restoration on India Street. In November 2016 she spoke to a detective regarding the windows at the store being etched with graffiti. The building where their store was located was owned by a consortium managed by Tom Cresi. The Chesters relocated the business in January 2017. The damaged windows at Chester Antique Repair and Restoration had to be replaced. The estimate of the damage to the windows was $1,480.

Detective Roberts believed the vandalism at all four businesses was done by the same person.

D. Vandalism to the French Garden Shoppe

David Marley owned the French Garden Shoppe located at 2307 India Street in November 2016. He closed the business and retired at the end of 2016. The manager of the building where the business was located was Tom Cresi. The windows to the business were vandalized by etchings in the glass of the windows. Mr. Marley saw the vandalism to the windows when he pulled up to the store one morning. The estimate of the damage to the glass windows to the doors at the business, 2307 India Street, was $202.

DISCUSSION

Banuelos vandalized two shops, with separate addresses, housing separate businesses, which were housed with the same building: Peter Chester Antique Repair and Restoration at 2317 India Street (count 3), and French Garden Shoppe at 2307 India Street (count 4). Banuelos contends we should treat the two acts of vandalism, as one offense because they occurred on the same occasion and the businesses were housed in the same building. We will reject his contention.

A. Double Jeopardy

Banuelos contends his right against double jeopardy was violated because count 4 should have been included in count 3, thus they are the same offense. Such argument flows from appellant's argument that the "Bailey" doctrine compelled inclusion of the acts and losses from count 4 into count 3, i.e., the two acts of vandalism should be treated as a single "unit of prosecution." We will reject his core contention on the merits, but we first address the People's argument that the claim of double jeopardy has been forfeited.

Banuelos did not raise either the "Bailey doctrine" or the derivative argument of double jeopardy in the trial court. Banuelos was on notice of the factual basis of each count from the outset of the prosecution and it was certainly developed in trial. He never contended the charging or convictions violated principles of double jeopardy. Failure to timely raise double jeopardy can give rise to forfeiture of the issue on appeal. (People v. Memro (1995) 11 Cal.4th 786, 821; People v. Gurule (2002) 28 Cal.4th 557, 646.)

Applying controlling authority, we find the claim of double jeopardy has been forfeited on this record.

B. The Bailey Doctrine

In Bailey, supra, 55 Cal.2d 514, the court found that a series of petty thefts, arising from the same overarching plan or objective could be aggregated into a single felony count. (Id. at pp. 518-519.) Since Bailey was decided, some Courts of Appeal have concluded that where offenses, including thefts, and vandalism arising out of a single purpose, or overarching scheme not only could be aggregated, but that they must be placed in a single count. (People v. Kirvin (2014) 231 Cal.App.4th 1507, 1517; People v. Tabb (2009) 170 Cal.App.4th 1142, 1149-1150; People v. Carrasco (2012) 209 Cal.App.4th 715, 717.)

More recently, in Whitmer, supra, 59 Cal.4th 733, 735-736, the court found Courts of Appeal had not correctly applied Bailey. There they dealt with a series of fraudulent transactions by an employee of a motorcycle dealership involving 20 motorcycles. The crimes were committed as part of the same, overarching grand theft scheme, involving a total loss of approximately $250,000. (Whitmer, supra, at pp. 735-736.) The court said, in part:

"Accordingly, we conclude that a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme. Without deciding whether any particular post-Bailey Court of Appeal opinion was incorrect under its facts, we disapprove of any interpretation of Bailey that is inconsistent with this conclusion." (Whitmer, supra, at p. 741.)

Banuelos relies on the concurring opinion of Justice Liu and the dissenting opinion of a Court of Appeal justice sitting by assignment. The dissent argued the court should embrace the concept of a unit of prosecution as a measure of whether separate acts should be aggregated. The concurring opinion discussed various approaches to a unit of prosecution method of analysis for a series of crimes committed under a single scheme. The majority did not adopt the unit of prosecution concept. What we are required to consider is whether the crimes involved separate acts and individual intents.

In the present case, a police detective described the series of acts of vandalism committed by Banuelos in this case as a "bombing run." In such a "run" an individual, or group of individuals will spray paint or etch as many properties as they can in a short period of time. Banuelos's participation in the series of acts of vandalism is not disputed on this record.

It appears that Banuelos relies on the fact the two businesses were housed in the same, larger building, and that there is some relationship among the building owner and at least one of the businesses. The argument seems to be there was only one building, albeit with two addresses and two different business names, thus the damage to the windows of each establishment must have been a single incident for a single purpose. The record does not support a single purpose or single "unit of prosecution" theory.

Here, Banuelos saw two businesses with different names and addresses, much like he had encountered in his assaults on other businesses that night. There is nothing from which we could infer Banuelos was aware of some business relationship between the victims and the building ownership, from which he might have inferred a single owner or victim. Banuelos was presented with two separate, and clearly marked businesses. His decision to damage each, like his earlier, unchallenged convictions in this case shows a clear purpose to damage the property of what was, and appeared to be, separate victims. Under the analysis of the high court in Whitmer, supra, 59 Cal.4th 733, Banuelos was properly convicted of counts 3 and 4, which were separate offenses against separate victims. That they were committed during the same vandalism rampage, does not require count 4 to be aggregated into count 3.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J. WE CONCUR: McCONNELL, P. J. IRION, J.


Summaries of

People v. Banuelos

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jun 26, 2018
No. D073188 (Cal. Ct. App. Jun. 26, 2018)
Case details for

People v. Banuelos

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GABRIEL BANUELOS, Defendant and…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jun 26, 2018

Citations

No. D073188 (Cal. Ct. App. Jun. 26, 2018)