Filed 5/12/21 P. v. Daniels CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077383
Plaintiff and Respondent,
v. (Super. Ct. No. SCE392999)
DAMON DESHELL DANIELS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Lantz Lewis, Judge. Affirmed.
Alex Coolman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Damon Deshell Daniels of one count of vandalism $400
or more (Pen. Code,1 § 594 subd. (a)(b)(1); count 2).2 At a separate bench
trial, Daniels admitted he had a prior strike conviction (§§ 667, subds. (b)-(i),
1170.12).
The court sentenced Daniels to prison for four years.
Daniels appeals, contending a jury instruction regarding vandalism
(CALCRIM No. 2900) was improper, and, in the alternative, section 594 is
unconstitutionally vague. We reject these contentions and affirm the
judgment.
FACTUAL BACKGROUND
Prosecution
Daniels was staying with his girlfriend at her house in El Cajon. J.S.
and his wife lived next door.
About 11:45 p.m. on July 18, 2019, J.S. was awoken by loud noises
outside his home. He looked out the window and saw Daniels jumping on the
hood of J.S.’s car. When J.S. yelled at Daniels to stop, Daniels climbed onto
J.S.’s SUV. J.S. called 911.
Daniels then removed a screen from a window of J.S.’s home and kicked
the door. He cracked the doorframe and split the wood above the deadbolt
lock, causing about $1,200 in damages.
Daniels also caused about $5,000 in damages to J.S.’s cars by jumping
and climbing on them.
1 Statutory references are to the Penal Code unless otherwise specified.
2 During Daniels’s jury trial, the court granted defense’s motion under
section 1118.1 with regard to a charge of first degree burglary (§§ 459, 460,
subd. (a); count 1) and acquitted Daniels of that count.
2
Defense
Daniels testified that he had gotten into an argument with his
girlfriend and she kicked him out of the house on the night in question.3 He
had used methamphetamine earlier that night and consumed some drinks.
However, he said it was possible that somebody had “put something in [his]
drink” because he was “feeling weird and stuff.” He did not remember
jumping on J.S.’s cars or kicking the door of J.S.’s house. He explained that
he knocked loudly on J.S.’s door because he needed to use the phone so he
could get a ride out of the area. He stated that he did not kick the door.
DISCUSSION
I
JURY INSTRUCTIONS
A. Daniels’s Contentions
Daniels contends that CALCRIM No. 2900 improperly permits the jury
to use the commission of any wrongful act that incidentally damages
property. The People argue Daniels forfeited this claim by failing to object to
CALCRIM No. 2900 at trial. However, Daniels asserts we can address his
claim on appeal because his substantial rights were affected. (See § 1259.)
Also, Daniels explicitly argues that “CALCRIM No. 2900 misstated the law of
vandalism.” “Where . . . defendant asserts that an instruction is incorrect in
law an objection is not required.” (People v. Capistrano (2014) 59 Cal.4th
830, 875, fn. 11.) Thus, there was no forfeiture, and we will address the
merits of Daniels’s contentions.
3 Daniels’s testimony from the preliminary hearing was read to the jury.
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B. Background
Without objection, the court instructed the jury under the standard
form instruction (CALCRIM No. 2900) for vandalism as follows:
“The defendant is charged in Count 2 with vandalism in
violation of Penal Code section 594. To prove the defendant
is guilty of this crime the People must prove the following:
One, the defendant maliciously damaged or destroyed real
or personal property; two, the defendant did not own that
property; and, three, the amount of damage caused by the
vandalism was more than $400 or more. Someone acts
maliciously when he or she intentionally does a wrongful
act, or he or she acts with the unlawful intent to annoy or
injure someone else. [¶] Voluntary intoxication is not a
defense to vandalism of $400 or more as charged in
Count 2. A person is voluntarily intoxicated if he or she
becomes intoxicated by willingly using any intoxicating
drugs, drink, or other substance knowing that it could
produce an intoxicating effect, or willingly assuming the
risk of that effect.”
In his closing argument, the prosecutor focused on the requirement
that Daniels “maliciously damaged or destroyed real or personal property.”
He explained that “[s]omeone acts maliciously when he or she intentionally
does a wrongful act.”
The prosecutor also discussed the evidence supporting the theory that
Daniels committed a wrongful act. He explained:
“What was the evidence? He was jumping on the
Expedition. So you have to ask yourself is jumping on
someone else’s car on the hood and roof of their car a
wrongful act? Yes. Did he intend to do that? Yes. He
clearly climbed up on the car, was jumping up and down on
the car, he caved the hood in.”
The prosecutor further described Daniels’s actions:
“He dented the front of the Ford Fusion, ripped the
window off the window sill, stuck his hand through,
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damaged the blinds, kicked the front door, damaged the
frame of the door. I think the damage total was $1,200 for
the frame of the door. He’s pounding so hard on the front
door demanding entry, damaging the frame of the door, he
breaks the blinds again causing smudging on the actual
wall itself. [¶] So when you look at element one, the
defendant maliciously damaged or destroyed real or
personal property, yes, obviously. He intentionally did a
wrongful act. Breaking other people’s things is wrong,
everyone knows that, easy, common sense, and he intended
to do that.”
During her closing argument, Daniels’s trial attorney contended that
Daniels was “not guilty because he had no malice.” She argued that Daniels
was “suffering from excited delirium” and not “in a rational state of mind.”
As such, counsel explained that Daniels did not intend to commit a wrongful
act, but was trying to get help. She acknowledged that his belief that he
needed help might “have been completely unfounded . . . because of a mixture
of perhaps mental illness, perhaps drugs, perhaps drinking, but that was his
belief that night, and that matters.”
Daniels’s counsel compared Daniels’s actions with that of a good
Samaritan who sees a dog locked inside a car on a hot day and breaks the car
window to rescue the dog. She also said that Daniels was not intending to
annoy or injure anyone by jumping on the cars or banging on the door to the
house. Instead, he took those actions because he needed help.
In rebuttal, the prosecutor reminded the jury that Daniels testified that
he did not feel like he was in danger on the night in question. Additionally,
he emphasized that vandalism was not a specific intent crime. He explained
that the statute merely requires that the prosecution prove that the
defendant “intend[ed] to do a wrongful act. Is jumping on the hood of a car a
wrongful act? Yes. Did he intend to do it? Yes.”
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C. Relevant Law and Standard of Review
We review a claim of instructional error de novo. (People v. Posey
(2004) 32 Cal.4th 193, 218.) “Review of the adequacy of instructions is based
on whether the trial court ‘fully and fairly instructed on the applicable law.’ ”
(People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining
whether error has been committed in giving jury instructions, we consider
the instructions as a whole and assume jurors are intelligent persons,
capable of understanding and correlating all jury instructions which are
given. (Ibid.) “ ‘Instructions should be interpreted, if possible, so as to
support the judgment rather than defeat it if they are reasonably susceptible
to such interpretation.’ ” (Ibid.) “The crucial assumption underlying our
constitutional system of trial by jury is that jurors generally understand and
faithfully follow instructions.” (People v. Mickey (1991) 54 Cal.3d 612, 689,
fn. 17.)
D. Analysis
Daniels maintains that CALCRIM No. 2900 misstates the law on
vandalism because it improperly allowed the jury to convict him if he
committed any wrongful act that inadvertently damaged property. In other
words, he argues that the jury should have been instructed that he could be
convicted of vandalism only if he intentionally committed the act of damaging
property.
CALCRIM No. 2900 is a standard instruction for the crime of
vandalism where the amount of damage exceeds $400. It is based on the
statute defining vandalism— section 594. Subdivision (a) of section 594
provides that every person who “maliciously” defaces, damages, or destroys
property belonging to another is guilty of vandalism. “[T]he term
‘maliciously,’ defining the requisite mens rea of the offense, ‘import[s] a wish
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to vex, annoy, or injure another person, or an intent to do a wrongful act,
established either by proof or presumption of law.’ ” (People v. Campbell
(1994) 23 Cal.App.4th 1488, 1493, citing § 7, subd. 4.)
Ordinarily, the use of the term “malice” or “maliciously” in a penal
statute is an expression of general criminal intent. (See People v. Atkins
(2001) 25 Cal.4th 76, 85-86 [explaining the difference between general and
specific intent in the context of the arson statute].) Use of the term “malice”
does not transform an offense into a specific intent crime, but the “malice
requirement ensures that the act is ‘done with a design to do an intentional
wrongful act . . . without any legal justification, excuse or claim of right.’ ”
(Id. at p. 88.) Requiring evidence the defendant acted with malice ensures
the proscribed act was “a deliberate and intentional act, as distinguished
from an accidental or unintentional . . . act . . . .” (Ibid.)
Although the vandalism statute does require proof the defendant
“maliciously” defaced, damaged, or destroyed another person’s property,
vandalism is a general intent crime and the requisite mens rea can be
demonstrated by proof the defendant intended to do the act that caused the
resulting harm. In People v. Kurtenbach (2012) 204 Cal.App.4th 1264
(Kurtenbach), a case acknowledged by Daniels, this court addressed whether
a conviction for vandalism could be sustained when a neighboring home
suffered damage caused by the defendant’s wrongful act of setting fire to his
own property, but there was no evidence the defendant intended to damage
the neighboring home. The jury was instructed that the “malice” required for
vandalism is when the defendant acted by “ ‘intentionally do[ing] a wrongful
act or when he or she act[ed] with the unlawful intent to annoy or injure
someone else’ ” (id. at p. 1281), and during deliberations the jury asked (as to
the vandalism count) whether the “ ‘ “wrongful act” need to be directed
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toward property not owned by the defendant?’ ” (Ibid.) The trial court
instructed the jury that the wrongful act “ ‘need not be “directed” toward
anyone.’ ” (Ibid.) The defendant asserted that was error, arguing vandalism
required the defendant act maliciously toward the victim and therefore the
jury should have been instructed the wrongful act needed to be directed
toward the victim of the damage. (Ibid.) This court rejected the defendant’s
argument, explaining at page 1282:
“To commit vandalism a defendant must do an act
‘maliciously’. [Citation.] However, as we have stated, a
person acts maliciously either when acting with ‘a wish to
vex, annoy, or injure another person’ or with the ‘intent to
do a wrongful act.’ [Citation.] As our Supreme Court has
explained, the first type of malice . . . is known as ‘[m]alice
in fact’ and ‘consists of actual ill will or intent to injure.’ (In
re V.V. (2011) 51 Cal.4th 1020, 1028.) However, the second
type of malice . . . is known as ‘malice in law.’ (In re V.V.,
at p. 1028.) ‘Malice in law may be “presumed” or “implied”
from the intentional doing of the act without justification or
excuse or mitigating circumstances.’ (Ibid.) [¶] Based on
the definition of ‘malice’ contained in section 7,
subdivision 4, in making a finding on whether Kurtenbach
acted maliciously when damaging the neighbors’ house the
jury was not limited to the theory of malice in fact, and it
was thus not required to find that Kurtenbach acted with
an intent to do damage to that house. Because of the
theory of malice in law, the jury could find that Kurtenbach
acted maliciously based on his commission of any wrongful
act that caused damage to the neighbors’ house. In this
case, Kurtenbach’s wrongful act was his participation in
the arson of his house. That wrongful act collaterally
damaged the neighbors’ house, satisfying the definition of
vandalism. Because the theory of malice in law was
applicable to the vandalism count, the trial court was not
required, as Kurtenbach claims, to instruct the jury that
the wrongful act had to be directed toward causing damage
to the neighbors’ house. It properly instructed the jury that
‘[t]he wrongful act need not be “directed” towards anyone.’ ”
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We believe the reasoning of Kurtenbach is instructive here. To convict
a defendant of vandalism, the prosecution must prove the defendant
committed a malicious act (either a wrongful act or an act to vex, annoy, or
injure another person) that caused damage to property the defendant does
not own. (See Kurtenbach, supra, 204 Cal.App.4th at p. 1282; § 594,
subd. (a).) The jury instruction so instructed here.
Nevertheless, Daniels attempts to distinguish Kurtenbach arguing that
the defendant in that case intended to destroy property, albeit his own, by
burning his home. Alternatively stated, Daniels implies that Kurtenbach
stands for the proposition that vandalism only can be committed where the
defendant’s action is aimed at destroying property. We do not read
Kurtenbach so narrowly. Indeed, we made clear that vandalism merely
requires that a defendant act maliciously and such an act damages property
of another. (See Kurtenbach, supra, 204 Cal.App.4th at p. 1282.)
Underlying Daniels’s argument here is the claim that vandalism is
actually a specific intent crime. It is not. (See People v. Moore (2018) 19
Cal.App.5th 889, 896.) Further, as we noted in Moore, “vandalism is an
aggressive act often committed impulsively, and more likely to be committed
while intoxicated due to lowered inhibitions.” (Id. at pp. 895-896.) The
record here suggests that was the case for Daniels. He had drunk alcohol and
used methamphetamine on the night in question. After being kicked out of
his girlfriend’s house, he climbed on top of J.S.’s cars and jumped on top of
them. He also kicked the door to J.S.’s house. The cars and the door and
door frame were damaged in an amount exceeding $400. Voluntary
intoxication is not a defense to the crime of vandalism. (Id. at p. 896.)
Daniels’s trial counsel argued that Daniels did not know what he was doing
because he was suffering a mental health episode or someone had put a
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foreign substance in his drink. The jury did not believe defense’s theories
and convicted Daniels.
In short, the instant action is a very clear case of vandalism. Daniels
climbed on two cars owned by J.S. and jumped on them. He also pounded so
hard on the door to J.S.’s house that the door and door frame were damaged.
The wrongful acts of climbing on the cars and banging on the door are
apparent. There is no dispute that the damage that occurred because of
Daniels’s actions exceeded $400. The jury instruction for vandalism required
the jury to find that Daniels maliciously damaged property he did not own.
Plainly, he did. There was no instructional error.4
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
GUERRERO, J.
4 We decline to address Daniels’s remaining argument that section 594 is
unconstitutionally vague. “ ‘[A] statute will not be held void for vagueness at
the behest of a defendant whose conduct falls clearly within its bounds.
[Citations.]’ ” (People v. Ervin (1997) 53 Cal.App.4th 1323, 1328-1329.)
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