Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed in part; reversed in part.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Santos Edward Rios guilty of one count of burglary (Pen. Code, § 459); two counts of false imprisonment (§ 236); one count of vandalism (§ 594, subd. (b)(1)); one count of criminal threats (§ 422); two counts of assault with a deadly weapon (§ 245, subd. (a)(1)); and one count of unlawfully and maliciously damaging a telephone line (§ 591). The jury found true the allegation that defendant personally used a deadly or dangerous weapon during the commission of the burglary.(§ 12022, subd. (b)(1).) The trial court sentenced defendant to prison for a term of six years, eight months.
All subsequent statutory references will be to the Penal Code, unless otherwise indicated.
The jury hung as to the special allegations associated with three of the other counts. The trial court declared a mistrial as to those special allegations, and ultimately struck the allegations.
Defendant raises 10 contentions on appeal. First, defendant contends the trial court did not provide the jury with an adequate instruction on the law of burglary. Second, defendant asserts the evidence supporting his burglary conviction does not meet the substantial evidence standard. Third, defendant contends the evidence supporting the assault convictions does not meet the substantial evidence standard. Fourth, defendant asserts his trial counsel was ineffective for failing to request an adequate jury instruction on the law of burglary. Fifth, defendant contends the trial court erred by not instructing the jury on how to evaluate circumstantial evidence. Sixth, defendant asserts the trial court erred by not staying the weapon enhancement (§12022, subd. (b)(1)), pursuant to section 654.
Defendant's four remaining contentions concern his conviction for damaging a telephone line. (§ 591.) In defendant's seventh contention, he argues that the evidence supporting his conviction for damaging a telephone line does not meet the substantial evidence standard. Eighth, defendant contends the statute prohibiting malicious damage to telephone lines (§ 591) is unconstitutionally vague. Ninth, defendant asserts section 591 has been impliedly amended to provide for misdemeanor sentencing. Tenth, defendant asserts his sentence for damaging a telephone line (§ 591) should have been stayed pursuant to section 654. We affirm in part, and reverse in part.
FACTUAL AND PROCEDURAL HISTORY
The victims in this case are Jane Doe and her sister, Teresa. Defendant and Doe share four children, but are not married. In 2008, the children's ages were four years, two years, one year, and "a newborn who was a few months." Defendant, Doe, and the four children lived together in a house in San Bernardino. Defendant and Doe were both on the lease agreement for the house.
B. EVENTS REPORTED TO LAW ENFORCEMENT
The facts in this subsection are largely taken from the testimony of City of San Bernardino Police Officer Jason Betts, who spoke to Doe and Teresa immediately after the incident at issue in this case.
Approximately three months prior to December 29, 2008, defendant and Doe had an argument, and defendant stopped living at the house. Approximately one and a half months after defendant moved out, Teresa moved into the house with her daughter; she was living with Doe and Doe's children.
At approximately 3:00 a.m. on December 29, 2008, Doe was returning home from work. Around that time, defendant called Doe on the telephone to ask her whereabouts. Doe told defendant that she was just arriving at home. Doe was scared by defendant's phone call, because she felt as though defendant was stalking her. Teresa was awake at the house, waiting for her sister to arrive home. When Doe entered the house, she told Teresa to gather the children so they could leave the house.
Before the women and children could leave the residence, defendant kicked in the back door of the residence. As defendant kicked the back door, Doe ran to the bathroom and locked the bathroom door. After defendant entered the house, he went to the bathroom door and screamed, "'You think I can't get to you, bitch[?]'" Defendant then kicked in the bottom half of the bathroom door. Almost the entire lower half of the bathroom door was broken by defendant. After defendant broke the door, he reached through a preexisting hole and unlocked the door.
Doe saw that defendant was holding a knife. The knife was approximately four inches long with a black handle. Doe screamed for Teresa to call the police. At that point, defendant took the telephone receiver from Teresa's hands and threw it across the room. Defendant then grabbed the telephone base and ripped it from the wall. It appeared to Officer Betts that defendant had also used a sharp tool to cut the telephone cord.
Doe remained cowering in the corner of the bathroom. Teresa remained seated on a sofa. Defendant positioned himself so that he could see both women. For the next "couple of hours" defendant yelled at the two women about not being allowed to see his children and "not showing him love." Defendant told the women that he would "'beat the shit out of them'" if they tried to leave. During the course of the three hours, defendant switched between violent threats and apologizing for his behavior. Doe remained in the bathroom; she was afraid to try to leave the residence, due to defendant's threats and the knife. Teresa remained on the sofa for the entire three hours.
Eventually, defendant decided that he immediately wanted custody of his newborn child, who was at defendant's mother's house. Defendant wanted to take Doe and one of their other children to go retrieve the newborn. When defendant grabbed one of the children, Doe followed defendant outside. Defendant ordered Doe into the driver's seat of her car, and she complied. As defendant sat down in the passenger's seat, he thought that he saw a police car approaching the house. Defendant took the child and began walking back towards the house. As defendant was paying attention to the child, Doe turned around, got back inside her car, and drove away.
Doe drove towards a police station. Defendant followed Doe in his car, and yelled at her from his car window. Defendant eventually made a U-turn and drove away. When Doe arrived at the police station, she pounded on the front door, but there was no response, so she drove back to her house. Doe honked her car horn, saw Teresa, and told Teresa to get the children. Teresa retrieved the children; they got into Doe's car, and went to a gas station payphone to call the police. The payphones were broken, so Doe drove to the city-owned gas station where she found a police officer pumping gas; she told him that there was a man with a knife inside her house. Defendant was not at the house when the police arrived. When the women returned home, they found that their dressers were broken.
C. TESTIMONIES OF DOE AND TERESA
At trial, Doe and Teresa testified to a different version of the events that occurred on December 29, 2008. This subsection provides an overview of their version of the events.
Approximately one week prior to December 29, 2008, defendant and Doe had an argument, and Doe asked defendant to leave the house. Defendant left for "a couple days" but had returned to living at the house prior to December 29—defendant was living at the house on December 29. Defendant called Doe in the early morning hours of December 29, and asked her whereabouts. Doe told defendant she was arriving home. Doe was not upset by defendant's phone call.
When Doe entered the house, she spoke to Teresa and then began getting ready for bed. Defendant used his keys to enter the house. Doe was in the bathroom when defendant entered the house. Doe heard defendant call her name, and she locked the bathroom door because she did not want to speak to defendant. Doe was not upset with defendant, but she was tired and did not feel like talking. The bathroom door had been broken on a prior occasion, when Doe's brothers were wrestling. Defendant reached through the hole in the broken door and unlocked it.
Defendant stood in the bathroom doorway. Defendant wanted to talk about his and Doe's relationship. Doe told defendant that she did not want to speak with him, and she began crying. Doe and defendant talked to each other for "a couple hours." Defendant did not threaten Doe. Defendant did not handle a weapon while at the residence; however, he generally carried a knife in his right pocket. While Doe and defendant talked in the bathroom, Teresa made tea and helped one of the children go to bed. Teresa was not scared while defendant was in the house, and she did not feel threatened by defendant.
After talking, defendant walked out of the bathroom to use the telephone. Doe told defendant to use his cellular phone, not the landline. When defendant stepped outside to make his phone call, Doe took defendant's house keys, which he had left inside, and locked him out. Defendant broke open the back door of the house, in order to get back inside. Defendant's cell phone battery had died, so defendant began using the landline telephone. Doe did not want defendant to use the telephone, so she pulled it from the wall, and the telephone line snapped. Doe explained that a heavy entertainment center is placed in front of the telephone jack, so the only way to "disconnect it is [to] kind of yank on the cord." Defendant threw the telephone receiver after Doe disconnected it, because the telephone did not work.
After defendant threw the telephone receiver, Doe decided to leave the residence. Doe believed that if she left the house, defendant would leave too and follow her, but he did not. Defendant had not threatened Doe, and she was free to leave the house. After Doe left, she returned to the house and picked up the children and Teresa. Doe went to the city-owned gas station to see if she could find a police officer, so that the police officer could check the residence to see if defendant had left.
When Doe arrived at the gas station she spoke to a police officer. The police officer asked if defendant had a weapon, and Doe said that defendant generally carries a switchblade knife. When Doe spoke to the officer she did not say that defendant used keys when he first entered the house; Doe told the officer she and defendant were separated and that defendant was not residing in the house.
Doe testified she loved defendant because he was the father of her children, and she did not want to see anything bad happen to him. Doe stated that after the incident she went to the police station and spoke to a detective, because she felt the charges against defendant were too serious. Doe admitted filing a false police report in the instant case. Doe testified that she would not lie to protect defendant, but she did lie to hurt defendant. Doe explained she lied to the police officer at the gas station about defendant's actions, because she wanted defendant out of the house, and at the time she "was so emotionally messed up that [she] really didn't care what happened to him. [She] didn't care if [law enforcement] locked him up and threw away the key." Doe also said she lied about defendant living at the house. Doe told the police officer defendant did not live at the house because she wanted defendant to leave, and she knew that you usually have to give a person 30 days notice to move out. When a police officer asked why men's clothes were at the house, Doe said defendant had not picked them up yet, but he had moved out. Approximately $1,000 was taken out of Doe and defendant's security deposit to repair the damage to the house.
The back door of the house opens into Doe's bedroom. A photograph showed black scuff marks on the back door of the house. Doe stated that defendant kicked the back door on December 29, after she locked him out. Another photograph showed a footprint on the back door. A third photograph showed damage to the back door and various items from the top of Doe's dresser, such as lotion and perfume bottles, that were strewn about the floor of Doe's bedroom. Doe stated that the items were still on top of the dresser when she left the residence on December 29. Another photograph showed Teresa's dresser tipped forward. Doe stated when she arrived at her house with Officer Betts and saw the damage that had been done, she became upset and cried, and when the Officer tried to calm her, she was unable to calm down.
E. PRIOR INCIDENT
On October 30, 2008, Doe was in her car with Teresa, and they were dropping off a friend at the friend's house. While Doe was in the friend's driveway, defendant stopped his car behind Doe's car, blocking her in. Defendant argued with Doe and tried to take her keys. Defendant pushed Doe's upper chest while trying to take her keys. Doe stated defendant was upset that Doe was drinking and driving; she denied that defendant choked her during the incident, although she admitted that the police report of the incident reflected defendant choked her. During the incident, defendant threw Doe's friend's cellular phone into the street, after Doe's friend yelled at defendant. Teresa flagged down a police officer who was driving by the friend's house.
A. BURGLARY INSTRUCTION
1. PROCEDURAL HISTORY
The trial court proposed a set a jury instructions, and asked trial counsel if they had any requests for additional instructions. Defendant's trial counsel objected to the instruction related to prior domestic violence, but otherwise did not seek to modify the instructions. The prosecutor also did not request additional instructions.
During closing arguments, defendant's trial counsel made the following statements: "If you wish to show your disapproval for what happened that night convict him of the charge of kicking that door down and vandalism causing his landlord some pain. When he got locked out by his girlfriend from the house that he lived in, when she did that his reaction was not to go find the spare keys or ring the doorbell or go to someplace else to cool off. His reaction was to kick the door down. Go ahead and find him guilty of vandalism, Count 4. But I do not believe that there is a way that you can find that those stories that were told on that night are sufficient evidence to give you that abiding conviction that these charges are true. So please go ahead and find [defendant] innocent to those charges."
In regard to burglary, the trial court instructed the jury as follows: "The defendant is charged in Count 1 with burglary. To prove that the defendant is guilty of this crime the People must prove that: One, the defendant entered a building; and two, when he entered a building he intended to commit assault with a deadly weapon, criminal threats or false imprisonment. To decide whether the defendant intended to commit assault with a deadly weapon, criminal threats, or false imprisonment, please refer to the separate instructions that I will give you on those crimes.
"A burglary was committed if the defendant entered with the intent to commit assault with a deadly weapon, criminal threats, or false imprisonment. The defendant does not need to have actually committed any of these crimes as long as he entered with the intent to do so.
"The People allege that the defendant intended to commit assault with a deadly weapon, criminal threats, or false imprisonment. You may not find the defendant guilty of burglary unless you all agree that he intended to commit one of these crimes at the time of entry. You do not all have to agree on which one of those crimes he intended.
"Burglary is divided into two degrees. If you conclude that the defendant committed a burglary, you must then decide the degree.
"First degree burglary is a burglary of an inhabited house. A house is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged entry.
"The People have the burden of proving beyond a reasonable doubt that the burglary was first degree burglary. If the People have not met this burden you must find the defendant not guilty of first degree burglary."
The standard burglary instruction is CALCRIM No. 1700. In the "Related Issues" section of CALCRIM No. 1700, there is a subsection entitled "Burglarizing One's Own Home—Possessory Interest." The subsection provides as follows: "A person cannot burglarize his or her own home as long as he or she has an unconditional possessory right of entry. [Citation.] However, a family member who has moved out of the family home commits burglary if he or she makes an unauthorized entry with a felonious intent, since he or she has no claim of a right to enter that residence. [Citations.]" (CALCRIM No. 1700.) The trial court's instructions did not include information regarding how a possessory interest affects a burglary allegation.
During the jury's deliberations, the jury asked the following question of the trial court: "Can you burglarize 'your' home if you are on the lease[,] i.e., can [defendant] burglarize his own home (we understand that [he] is not an owner or co-owner)."
The trial court discussed the jury's question with the trial attorneys. The trial court suggested the following response to the jury: "[T]he elements required to be proven for the offense of first degree burglary are contained in instructions 18 and 19, CALCRIM 1700 and 1701. A person can commit a burglary by entering his own home with the required specific intent at the time of the entry." The trial court asked if the attorneys had any objections to the suggested answer.
The prosecutor did not object and said, "I think it's a correct statement of the law and also answers the question directly as to what the jurors are looking for. And certainly evidence in this case [is] that he was not living at that location even though he was on the lease. So I think it's actually very important that the Court explain that and clarify that as I think the Court did."
Defendant's trial attorney said, "I would ask that the CALCRIM instruction only be given and that, that is sufficient that the elements contained therein should contain the answer to their question and no further clarification is submitted." The trial court did not modify its answer, and responded to the jury with the suggested answer detailed ante.
Defendant contends the trial court erred by not instructing the jury that the prosecution was required to prove, for the offense of burglary, that defendant lacked an unconditional possessory interest in the house. We agree.
At the outset, we address the People's assertion that defendant forfeited this issue by failing to object to the trial court's instructions at the trial court level. The People rely on the principle that "[a] defendant 'is not entitled to remain mute at trial and scream foul on appeal for the court's failure to expand, modify, and refine standardized jury instructions.' (People v. Daya (1994) 29 Cal.App.4th 697, 714.)" Defendant's claim is not that the trial court failed to expand, modify, and refine the standard instruction; rather, defendant's claim is that the trial court gave an incorrect statement of the law when responding to the jury's question, and that error violated defendant's rights to due process and a jury trial. Thus, defendant's claim is not the type that must be preserved by an objection in the lower court. (§ 1259 ["[T]he appellate court may, without exception having been taken in the trial court, review any . . . instruction . . . which affected the substantial rights of the defendant."]; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) Accordingly, we conclude that defendant has not forfeited this issue.
"'The rules governing a trial court's obligation to give jury instructions without request by either party are well established. "Even in the absence of a request, a trial court must instruct on general principles of law that are . . . necessary to the jury's understanding of the case." [Citations.]'" (People v. Hudson (2006) 38 Cal.4th 1002, 1012.)
"The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law [citation] . . . ." (People v. Posey (2004) 32 Cal.4th 193, 218.) We are reviewing the trial court's explanation of the burglary instruction; therefore, we apply the independent standard of review. When determining whether a trial court correctly informed the jury of the general principles of law, we consider how a reasonable jury would have likely interpreted the instruction, "'and whether the instruction, so understood, accurately reflects applicable law. [Citations.]' [Citation.] 'Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury. [Citation.]' [Citation.]" (People v. James (1998) 62 Cal.App.4th 244, 273-274 [Fourth Dist., Div. Two].)
The trial court informed the jurors that a burglary occurred if defendant "entered a building" with the intent to commit a felony. In response to the jury's question, the trial court "clarified" that "[a] person can commit a burglary by entering his own home with the required specific intent at the time of the entry." Looking at these combined instructions, a reasonable jury likely believed that a person can burglarize their own home—even if the person has an unconditional right of entry—because the trial court's statement was very simple and absolute, leaving little room for misinterpretation.
Next, we consider whether this instruction reflects the applicable law, and we conclude that it does not. The relevant law is that a person cannot burglarize his own home. (People v. Gauze (1975) 15 Cal.3d 709, 714.) The law provides an exception to this rule, wherein a defendant can be found guilty of burglary when he enters the home he shared with the victim when he was estranged from the victim, there have been incidents of spousal abuse, there have been prior threats to the victim's safety, and the victim fears for her safety. (People v. Ulloa (2009) 180 Cal.App.4th 601, 610 [Fourth Dist., Div. Two].)
The trial court's statement a person can burglarize his own home is incorrect, because a person cannot burglarize a home that he has an unconditional right to enter, which is how the trial court's statement would most likely be interpreted—that a person can burglarize a home he has an unconditional right to enter. The law is that a person can burglarize a home he owns or leases, but is estranged from and no longer has an unconditional right to enter. The trial court's statement a person can burglarize his own home, does not reflect the law that a person can only burglarize a home he is estranged from. Given that the instruction does not reflect the applicable law, we conclude the trial court erred.
Next, we must consider whether the trial court's error was harmless. The test we apply in this analysis "is whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' [Citations.]" (Neder v. U.S. (1999) 527 U.S. 1, 15.)
There was conflicting evidence regarding whether defendant was living in the house on the day of the incident. On one hand, Officer Betts testified defendant moved out of the house three months prior, and may have been living with his mother or brother. Additionally, Teresa testified Doe and defendant had broken up two weeks prior to December 29, 2008, and that defendant moved out of the house at that time. On the other hand, Doe testified defendant initially entered the house by using his keys to open the door. Doe also testified defendant was living in the house on the day of the incident, and defendant was on the lease for the house. Teresa testified defendant's belongings were at the house on the day of the incident in this case. Doe testified that Officer Betts asked her about the male clothing he found at the house.
In sum, there was evidence showing defendant was on the lease for the house, had keys to the house, that his belongings were at the house, and that he still lived at the house. If the trial court had instructed the jury that a person cannot burglarize his own house, unless he is estranged from the house, then it is possible the jury would have found defendant not guilty of burglary, based upon the evidence that defendant lived at the house. This is especially likely given the jury's question to the trial court regarding whether a person can burglarize his own home. Thus, we conclude it is reasonably likely that the trial court's misinstruction contributed to the jury's verdict. Therefore, we conclude the burglary conviction must be reversed, because the error was not harmless.
The People assert the trial court's "incomplete instruction" was not prejudicial because "the evidence overwhelmingly established that [defendant's] right of entry into Doe's home was not absolute." Contrary to the position of the People, there is not overwhelming evidence defendant was estranged from the household—there is some evidence that defendant was estranged from the household, but there is also conflicting evidence that would support a finding defendant was still living at the house at the time of the incident in this case. Accordingly, we find the People's argument to be unpersuasive.
B. REMAINING BURGLARY CONTENTIONS
Defendant contends his burglary conviction should be reversed because (1) substantial evidence does not support his burglary conviction; (2) his trial counsel was ineffective for failing to request a jury instruction regarding how a possessory interest in the house affects a burglary allegation; and (3) the trial court did not instruct the jury on how to evaluate circumstantial evidence. As set forth ante, defendant's burglary conviction must be reversed. Since the conviction is being reversed, we do not address the foregoing three contentions, because they have been rendered moot. (See People v. Mohammed (2008) 162 Cal.App.4th 920, 934 [not addressing remaining contentions after reversal.].)
C. ASSAULT WITH A DEADLY WEAPON
Defendant contends the evidence supporting his convictions for assaulting Doe and Teresa with a deadly weapon (§ 245, subd. (a)(1)) does not satisfy the substantial evidence standard. Specifically, defendant argues his behavior perhaps amounts to brandishing a weapon, but does not rise to the level of assault. We disagree.
"'When reviewing a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation] '[T]he 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.' [Citations.] '[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.' [Citation.]" (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290, fn. omitted.)
"Section 240 defines assault: 'An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.'" (People v. Griggs (1989) 216 Cal.App.3d 734, 739.) "Although temporal and spatial considerations are relevant to a defendant's 'present ability' under section 240, it is the ability to inflict injury on the present occasion that is determinative, not whether injury will necessarily be the instantaneous result of the defendant's conduct." (People v. Chance (2008) 44 Cal.4th 1164, 1171.)
We first address the evidence related to Teresa. Officer Betts testified that Teresa saw defendant holding a knife when he kicked open the back door of the house. Doe yelled for Teresa to call the police. Defendant ripped the telephone from Teresa's hands, and threw it across the room. It appeared to Officer Betts that defendant had used a sharp object to cut the telephone line. Based upon the foregoing evidence, a trier of fact could reasonably infer defendant was holding the knife at the time he took the telephone from Teresa's hands. From this inference it can reasonably be concluded that defendant "willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery" (People v. Colantuono (1994) 7 Cal.4th 206, 214), because defendant was holding a knife while taking the telephone away from Teresa, which easily could have led to Teresa being injured. Thus, we conclude substantial evidence supports defendant's conviction for assaulting Teresa.
Next, we address the evidence related to Doe. Again, Officer Betts testified that Teresa saw defendant holding a knife in his hand when he kicked open the back door of the house. Doe locked herself in the bathroom. Once defendant was inside the house, he went to the bathroom, screamed, "'You think I can't get to you, bitch,'" and then kicked in the bathroom door. After defendant kicked in the door, Doe saw defendant holding a knife; she screamed for Teresa to call the police.
Defendant's actions of breaking down two doors while screaming at Doe and holding a knife reflect acts that would probably and directly result in injury to Doe. A trier of fact could reasonably infer that if defendant had not turned his attention to Teresa, to prevent her from calling the police by ripping the telephone from her hands and the wall, then Doe may have suffered grave injuries at the hands of defendant, given the amount of rage he displayed while holding a knife and fighting to be in her presence. In sum, we conclude substantial evidence supports the findings that defendant assaulted Doe with a deadly weapon.
Defendant argues there is no evidence he "got anywhere near" Teresa with the knife. We do not find defendant's argument persuasive, because it can be inferred from the evidence that defendant was holding the knife when he took the telephone from Teresa's hands.
Next, defendant argues the knife contributed to Doe's false imprisonment; however, there is no evidence he waved the knife around Doe or cut Doe. We agree Doe was not cut, the knife contributed to Doe's false imprisonment, and defendant did not wave the knife around Doe. Nevertheless, these arguments do not persuade us there is a lack of substantial evidence of assault, when there is evidence defendant broke through two doors, with a knife in hand, in order to approach Doe.
D. SECTION 654: BURGLARY CONVICTION
Defendant contends that if this court affirms defendant's convictions for assault and burglary with the enhancement that defendant used a knife during the burglary, then the sentence for personally using a deadly or dangerous weapon during the commission of the burglary (§ 12022, subd. (b)(1)) should be stayed. We have affirmed defendant's assault convictions, but reversed defendant's burglary conviction. Due to the reversal of the burglary conviction, this issue is moot. (See People v. Mohammed, supra, 162 Cal.App.4th at p. 934 [reversal renders remaining contentions moot].)
E. TELEPHONE LINE: SUBSTANTIAL EVIDENCE
Defendant contends the evidence supporting his conviction for damaging a telephone line does not meet the substantial evidence standard of review. We disagree.
The substantial evidence standard is set forth ante, so we do not repeat it here. Section 591 provides, in relevant part: "A person who unlawfully and maliciously takes down, removes, injures, or obstructs any line of telegraph, telephone, or cable television, or any other line used to conduct electricity, or any part thereof, or appurtenances or apparatus connected therewith, or severs any wire thereof . . . is punishable . . . ."
"Nothing in section 591 immunizes one who 'maliciously takes down, removes, injures, or obstructs' his own phone. The statute refers to 'any line . . . of telephone[.]' 'Any' line includes a line owned by a defendant." (People v. McElroy (2005) 126 Cal.App.4th 874, 883.) In People v. Tafoya (2001) 92 Cal.App.4th 220, 227 (Fourth Dist., Div. Two), this court "conclude[d] that disabling a private telephone can violate section 591." This court concluded substantial evidence supported a defendant's conviction pursuant to section 591, when the record reflected that (1) the defendant knocked a cordless telephone from his estranged wife's hand during an argument; (2) the telephone was found to have the battery missing soon after the defendant left his wife's house; and (3) the defendant admitted to removing the battery from the telephone. (Id. at pp. 222, 227.)
In the instant case, Officer Betts testified that immediately after the incident at issue in this case, Doe reported the following: when Doe yelled for Teresa to call the police, defendant "went over to the phone[,] tore it from the wall[,] and threw it out of reach." Officer Betts further testified that when he "examine[d] the base of the phone it looked like [defendant] had done more than tear it from the wall, it looked like he had used a sharp object to cut the cord itself to prevent anybody from calling the police." Officer Betts stated Doe saw defendant holding a knife in his hand, while defendant was in the house. Officer Betts testified Teresa reported seeing defendant throw the telephone receiver across the room and tear the base of the phone "out of the wall."
The evidence that defendant tore the phone line from the wall and sliced the line is substantial proof that defendant removed, injured, or obstructed a telephone line. The evidence that defendant damaged the phone line while Teresa was attempting to contact the police is substantial proof that defendant was acting unlawfully and maliciously. Accordingly, we conclude there is substantial proof that defendant violated section 591.
Defendant asserts substantial evidence does not support his conviction because damaging private telephone equipment is not prohibited by section 591. Defendant concedes this court, as well as other courts of appeal, have concluded section 591 prohibits damaging private telephone equipment; however, defendant argues that this court and the other courts have reached an erroneous conclusion.
Defendant argues this court's conclusion in Tafoya is contrary to our Supreme Court's precedent set forth in People v. Trieber (1946) 28 Cal.2d 657 (Trieber). In Trieber, the defendant connected telephone lines running to his apartment to the telephone extensions of two other third parties, and then used the third parties' extensions in running his bookmaking operation. The third parties consented to the defendant's use of their phone lines, because the defendant was paying their phone bills. The defendant was charged with tapping or making an unauthorized connection to a "'telephone wire, line, cable, or instrument under the control of any telegraph or telephone company [§ 640].'" (Id. at p. 659.)
The defendant argued he could not be tried for the foregoing offense because there was no evidence that the telephone lines were under the control of the telephone company. (Trieber, supra, 28 Cal.2d at p. 660.) The defendant argued that since section 591 protects telephone companies from unauthorized connections, then section 640 should be construed to protect private individuals from unauthorized telephone connections; the defendant then argued the private individuals consented to his use of their telephone extensions. (Id. at p. 661.)
Our Supreme Court discussed section 591 when analyzing the defendant's argument. Our Supreme Court wrote that section 591 "protects telegraph and telephone facilities from physical injury by prescribing punishment for one who 'takes down, removes, injures or obstructs' such facilities. It also safeguards communication and power systems from theft of services or of electric current by prescribing punishment for one who 'makes any unauthorized connection' with telephone, telegraph or 'other electric' lines or facilities. A subscriber is therefore punishable under section 591 if he makes a connection to his telephone line without the approval of the operator of the line. [Citation.] A subscriber is also punishable thereunder if, instead of making the connection himself, he permits another to make it without the authority of the operator of the system, for by so enabling another to violate section 591 he becomes punishable himself under section 31 . . . as a principal to the crime. [Citations.]" (Trieber, supra, 28 Cal.2d at p. 661.)
We fail to see how the foregoing Supreme Court reasoning contradicts Tafoya. In Trieber, the Supreme Court plainly wrote that a person would be punishable under section 591 if he made a connection to "his telephone line." (Trieber, supra, 28 Cal.2d at p. 661, italics added.) Based upon this portion of the opinion, it appears a person can be held liable under section 591 for alterations or damage done to private telephone equipment. Accordingly, we find defendant's argument to be unpersuasive. F. VAGUE STATUTE
Defendant contends section 591 is unconstitutionally vague because it does not reasonably convey that private telephone equipment is included within the ambit of the statute. We disagree.
"'The Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution, each guarantee that no person shall be deprived of life, liberty, or property without due process of law. This constitutional command requires "a reasonable degree of certainty in legislation, especially in the criminal law . . . ." [Citation.] "[A] penal statute [must] define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."' [Citation.] If a criminal statute is not sufficiently certain and definite, it is unconstitutionally vague and therefore void." (People v. Maciel (2003) 113 Cal.App.4th 679, 683.)
"'To withstand a facial vagueness challenge, a penal statute must satisfy two basic requirements. First, the statute must be definite enough to provide adequate notice of the conduct proscribed. [Citation.] Ordinary people of common intelligence have to be able to understand what is prohibited by the statute and what may be done without violating its provisions. [Citation.] [¶] Second, the statute must provide sufficiently definite guidelines. A vague law impermissibly delegates basic policy matters to the police, judges and juries for resolution on a subjective basis, with the attendant risk of arbitrary and discriminatory enforcement.' [Citations.]" (People v. Sullivan (2007) 151 Cal.App.4th 524, 543.)
"'"[T]he starting point of our analysis is 'the strong presumption that legislative enactments "must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.'" [Citation.]' [Citation.]" (People v. Sullivan, supra, 151 Cal.App.4th at p. 543.) "'The fact that a term is somewhat imprecise does not itself offend due process. Rather, so long as the language sufficiently warns of the proscribed conduct when measured by common understanding and experience, the statute is not unconstitutionally vague.' [Citation.]" (Ibid.)
Section 591, provides: "A person who unlawfully and maliciously takes down, removes, injures, or obstructs any line of telegraph, telephone, or cable television, or any other line used to conduct electricity, or any part thereof, or appurtenances or apparatus connected therewith, or severs any wire thereof, or makes any unauthorized connection with any line, other than a telegraph, telephone, or cable television line, used to conduct electricity, or any part thereof, or appurtenances or apparatus connected therewith, is punishable by imprisonment in the state prison, or by a fine not exceeding five hundred dollars ($500), or imprisonment in the county jail not exceeding one year."
Section 591 plainly reflects that it is punishable offense to damage "any line of . . . telephone." By including "any" in the language of the statute, it is clear the statute applies to public and private telephone lines. There is nothing in the statute indicating it pertains only to public telephone lines; rather, the statute, by its plain language, encompasses all telephone wires. Accordingly, we conclude the statute is not unconstitutionally vague, because it sufficiently warns that a person will be punished if he maliciously damages any telephone line.
Defendant also asserts the "'appurtenances and apparatuses'" language does not convey that it would be a punishable offense to damage a private telephone. Defendant argues, "The Judicial Council has already determined that a reasonable juror would not understand 'appurtenances and apparatuses' to mean anything." Defendant does not provide a citation to support this assertion. Contrary to defendant's position, it seems that even if a person does not know the meaning of the words "appurtenances and apparatuses," the person could deduce from the context, i.e., "appurtenances or apparatus connected therewith," that the words refer to items connected to the telephone lines. A person could further deduce that a telephone is connected to telephone lines, and therefore understand that damaging a telephone is prohibited by the statute. In other words, the statute is not vague, because a person who may not understand the vocabulary used in the statute would still be able to deduce what conduct is prohibited by the statute.
G. IMPLIED AMENDMENT
Defendant contends section 591.5 impliedly amended section 591 to provide for misdemeanor sentencing based upon the facts of the instant case. We disagree.
"Matters of interpreting and applying a statute are questions of law. Questions of law are reviewed under the de novo standard of review. [¶] In interpreting a statute, our objective is to ascertain and effectuate [the] legislative intent. To the extent the language in the statute may be unclear, we look to legislative history and the statutory scheme of which the statute is a part. We consider the entire statutory scheme in interpreting particular provisions so that the whole may be harmonized and retain effectiveness. In the end, we must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." (People v. Galvan (2008) 168 Cal.App.4th 846, 852-853 [Fourth Dist., Div. Two], internal citations and quotations omitted.)
"An implied amendment or repeal of a code section is generally disfavored. We presume that the Legislature, when enacting a statute, is aware of related code sections and intends to maintain a consistent body of rules." (People v. Galvan, supra, 168 Cal.App.4th at p. 854, internal citations and quotations omitted.)
Section 591.5 provides: "A person who unlawfully and maliciously removes, injures, destroys, damages, or obstructs the use of any wireless communication device with the intent to prevent the use of the device to summon assistance or notify law enforcement or any public safety agency of a crime is guilty of a misdemeanor."
For reference, a violation of section 591 is punishable by "imprisonment in the state prison, or by a fine not exceeding five hundred dollars ($500), or imprisonment in the county jail not exceeding one year."
There is nothing in section 591.5 that implies section 591 has been amended. Since section 591 has explicit punishments listed as part of the statute, we are not persuaded that the enactment of section 591.5 somehow acted to override that explicit statutory language. In sum, we are not persuaded section 591 was implicitly amended by section 591.5.
Next, to the extent defendant is arguing his conviction for damaging a telephone line should have been classified as a misdemeanor; based upon the facts of this case, and in light of section 591.5, we find such an argument to be unpersuasive. Section 591.5 classifies the destruction of a wireless communication device as a misdemeanor. In the instant case, defendant threw the phone receiver, ripped the telephone base from the wall, and severed the phone line. Defendant's actions went beyond merely destroying a telephone, which sets his actions apart from the misdemeanor acts described in section 591.5. Thus, we conclude the trial court did not err by classifying defendant's actions as a felony.
Defendant has moved this court to take judicial notice of a variety of documents related to the legislative history of section 591.5. (Evid. Code, § 459; Cal. Rules of Court, rule 8.252(a).) Our analysis relies on the plain language of the statutes, and we do not delve into legislative history. Thus, since the documents are not necessary for our analysis, we deny defendant's request for judicial notice.
H. SECTION 654: DAMAGING TELEPHONE LINE
1. PROCEDURAL HISTORY
In regard to defendant's conviction for damaging a telephone line (§ 591), the trial court made the following statement at defendant's sentencing hearing, "As to the Count 8, which was the damage to the phone line, the court finds that that was done with a separate objective of deterring victims from calling police and making an escape. Therefore, not subject to [section] 654. I will impose an additional consecutive one-third the midterm, which will be an additional eight months."
Defendant contends his sentence for violating section 591 should have been stayed because the act was already punished under a different penal code provision. (§ 654.) It is unclear from defendant's argument whether he is asserting that the acts punished under section 591 have already been punished via the burglary or assault sentences. Regardless of this ambiguity, we disagree with defendant's contention. Since the burglary conviction must be reversed, we address the contention only as it relates to the assault sentences.
Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Our Supreme Court has "broadly" construed section 654. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) Our high court has concluded that section 654 applies "'"not only where there was but one 'act' in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether [the course of conduct] comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." [Citation.] [¶] 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. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.]" (Rodriguez, at p. 507.) A trial court's finding that section 654 is applicable will be upheld on appeal if it is supported by substantial evidence. (People v. Tarris (2009) 180 Cal.App.4th 612, 626 [Fourth Dist., Div. Two].)
The record reflects that during the incident, defendant positioned himself between the two women, and then yelled at them for hours about not being allowed to see his children and "not showing him love." Defendant threatened to harm the women if they tried to leave. When defendant approached Teresa with the knife, it seems his intent was likely to put fear into her. Teresa stated she stayed on the couch during the incident and did not move "because she was afraid of what the defendant might do." Similarly, Doe stayed cowered in the corner of the bathroom, "too afraid to do anything." From this evidence, it appears defendant's intent in assaulting the women was to instill fear in the women.
In regard to the telephone damage, the record reflects defendant ripped the telephone from the wall after Doe instructed Teresa to contact the police. It can be reasonably inferred from this evidence that defendant's intent in damaging the telephone line was to prevent police from being summoned to the house—to evade a possible arrest. In sum, two separate intents and objectives can be derived from the evidence. As a result, we conclude the trial court did not err by not applying section 654.
Defendant's burglary conviction (§ 459) is reversed. The trial court is directed to issue an amended abstract of judgment and to forward it to the appropriate prison authorities. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Acting P. J.