Filed 12/17/19 P. v. Ferra CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL HERNANDEZ FERRA,

Plaintiff and Respondent.

E071910

(Super.Ct.No. INF1600510)

OPINION

APPEAL from the Superior Court of Riverside County. Timothy J. Hollenhorst, Judge. Affirmed.

John F. Schuck, 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, A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.

In November 2015, defendant and appellant Daniel Hernandez Ferra lived with 83-year-old Sophia Williams in her condominium in Palm Springs (the Condo). Williams wanted defendant to move out, but he refused. Defendant then told Williams that a friend had brought bed bugs into the Condo. Defendant, with the help of two women, covered the entire living space with “Diatameceous Earth” powder (the powder) claiming he was trying to eradicate the bugs. The powder was over an inch thick in many places, and when one of the women told defendant he was using too much, he told the woman to use more so Williams would stay out of the Condo. There was so much of the powder in the Condo that Williams had to move out and sleep in her car, at a friend’s house, and in a hotel. She suffered skin and eye irritation, and had trouble breathing, which required her to go to the hospital. It took months to clean up the Condo and cost hundreds of dollars in cleaning supplies and labor.

Defendant was convicted of felony vandalism (Pen. Code, § 594, subd. (b)(1)) and felony elder abuse (§ 368, subd. (b)(1)). Defendant was placed on three years formal probation under certain terms and conditions, and ordered to serve 120 days in county jail.

On appeal, defendant contends (1) there was not substantial evidence presented to support his conviction for felony vandalism; and (2) the trial court erred by failing to sua sponte instruct the jury on misdemeanor elder abuse.

FACTUAL HISTORY

A. PEOPLE’S CASE-IN-CHIEF

In 2015, Sophia Williams, who was 86 years old at the time of trial, lived with defendant in the Condo located in Palm Springs. Defendant had lived with her for three years. They initially had a romantic relationship but it did not last. She needed help paying the rent on the Condo so she allowed defendant to stay. One night, she woke up to find defendant had a knife pointed at her chest. He told her he wanted her to realize that she did not lock up the Condo well enough to keep out intruders.

In November 2015, she wanted him to move out. Defendant told Williams that he did not want to move out because his friend had brought bed bugs into the Condo and he wanted to get rid of them before he moved out. She had not seen bed bugs in the Condo before defendant moved in. She believed defendant had thrown bed bugs on her while she was in her bedroom sleeping. She recalled seeing some kind of black bugs in her bed. Defendant also told her that he would move out if she gave him money for a new place.

Defendant brought two woman named Karen and Lupita into the Condo. Karen brought masks and the powder, which defendant told Williams was poisonous. Defendant, Karen and Lupita all put on masks and then spread the powder all over the Condo. They put the powder in Williams’s drawers; they covered the kitchen, and her clothes were saturated with the powder.

Williams was not given a mask. Williams complained that she could not breath. Karen told Lupita that she did not need to use so much of the powder. Defendant then said, “No, put more. More you put down, the more she will stay away.” Williams understood this to mean that she would have to be out of the Condo because of how the powder made her feel.

After defendant and the two women left, it looked like it had snowed in the Condo because there was so much of the powder. Defendant spread the powder all over the Condo a second time. He used a squeeze bottle to put it in the outlets and the lights. Lupita tried to help Williams clean the Condo but defendant would just add more powder. Williams told defendant to stop putting the powder in the Condo and just leave. He refused, stating that he was responsible for the bed bugs being in the Condo. Defendant cursed at her and verbally abused her.

Williams could not breath in the Condo; the powder made her feel dizzy and she went to the hospital, where she passed out in the parking lot. She slept in her car for almost a week. Her friend found out she was sleeping in her car and let her stay with her. Williams contacted the Palm Springs Police Department. An officer came to the Condo and told her to be careful but took no action against defendant.

After defendant moved out in December 2015 he never offered to help remove the powder or help pay for its removal. Defendant took Williams’s mattress and never paid her for it; she bought a new mattress for $800.

Williams had to throw away most of her clothes because they were saturated with the powder. Defendant broke Williams’s $300 vacuum when he was trying to clean up the powder. She hired a company to blow out the powder from the outlets and heating and air conditioning. Williams was not able to return to the Condo for three months.

Williams contacted her niece, Rene Secilia Marino, who lived in Montana. In early 2015, Williams told Rene that she was upset defendant would not move out of the Condo. In November 2015, Williams told Rene that defendant had put the powder in the Condo and all over her clothes. Williams told Rene her skin was itching and burning. She was trying to get a restraining order or to get defendant evicted but did not know what to do. Williams told her Rene she was afraid to sleep in the Condo at night and was sleeping in her car.

Rene’s daughter Aspen Marino lived in Los Angeles in December 2015. On December 19, 2015, Aspen went by the Condo because Rene was concerned. When she arrived at the Condo, the powder was everywhere. In some areas, it was an inch thick. It was in the cabinets and all over the dishes. Defendant was at the Condo moving out his belongings. Aspen took Williams to a hotel.

Rene arrived at The Condo on December 20, 2015. Williams “was not well”; she was coughing and her eyes were burning. Rene rented a place for Aspen, Williams and herself to stay. Aspen and Rene bought masks and supplies and started cleaning the Condo. They made very little progress in getting rid of the powder the first day. Aspen developed a dry cough and felt like she was developing a cold after spending the day in the Condo. Aspen never saw any bugs while they were cleaning. Rene described the powder as being “caked on” throughout the Condo. Rene’s throat started hurting while she was working and she got a headache and cough. Aspen called multiple companies to get a quote to clean out the powder; they estimated it would cost thousands of dollars.

Williams appeared to Aspen to be worn down and a little “broken.” Rene did not see any bug bites on Williams. Rene continued to clean the Condo because they could not afford to hire a cleaning service. Rene and Williams slept in hotels in January 2016 while they continued to try to clean the Condo. During this time, Rene had a hard time breathing. They had to buy numerous cleaning products and a respirator mask. She rented a more powerful vacuum. Rene missed two weeks of work for which she did not get paid. They had to have the carpets cleaned, which cost over $300. For five days after she cleaned the Condo, Rene suffered from hives and had trouble breathing. Rene still suffered from skin irritation at the time of trial.

Jamie Jones was a supervising social worker employed by adult protective services. Williams reported to her that she was afraid of defendant because he was calling her a “bitch” and a “whore.” Williams also reported that he spread the powder around her house. Jones went to the Condo on December 8, 2015, and noted that there was powder everywhere.

Palm Springs Police Officer Anthony Pilutik went to the Condo on December 24, 2015, and photographed the powder. It covered every surface, including inside cupboards. He had never experienced anything “like this” before in his career as a police officer. He did not observe any insects in the Condo.

Bruce Moore was an investigator employed by the Riverside County District Attorney’s Office. He had previously been a chemist. He was asked to research and investigate the powder in this case. The powder could cause redness and scratchiness in the eyes upon contact because it was abrasive. Inhaling the powder could cause acute or chronic issues with the respiratory system and a chronic lung condition called chronic obstructive pulmonary disease (COPD). Elderly people with respiratory issues were more susceptible to problems. Further, the powder that was used by defendant was not normally used as a pesticide because it had such small particles that could get in the lungs.

Moore indicted that a bed bug was five to seven millimeters in size; the equivalent of an apple seed; they were visible with the naked eye. Bed bugs fed off of human or animal blood and would not normally go into cabinets. Bed bugs were commonly treated with pesticide around the bed and baseboards of a room. If they were believed to be migrating from room to room, the pesticide could be put in the electrical outlets to keep them from moving.

Moore reviewed the photographs of the Condo. The treatment with the powder was excessive and reckless. Further, the wrong type of Diatameceous Earth powder was used and it could have caused acute or chronic respiratory issues especially with a person over the age of 80 years. The amount used could cause great bodily injury to anyone who lived in the Condo by causing dust clouds that could be inhaled. The powder was a hazard inhaled even it was safe for other uses. Only a small amount was needed in strategic locations to get rid of bed bugs.

Keith Polski worked for a restoration company with locations in Indian Wells and Palm Springs. His company cleaned houses after water damage or smoke, or any other cause that required a major cleaning. In December 2015 he went to the Condo to prepare an estimate for cleaning. He had never seen this type of powder previously. He described the powder as being on all surfaces in the Condo. His recommendation to Williams was to discard and dispose of mattresses, sofas, carpets, linens and towels. Only the hard surfaces could be sufficiently cleaned. He explained that the powder was so fine that it would embed itself in any soft goods.

The powder was on the acoustic ceiling and Polski recommended that it be scraped; the ceiling would have to be painted. The carpet would have to be replaced. Polski estimated that the clean up would have cost $10,000. He would have recommended protective masks or goggles for the person who cleaned up the powder.

Palm Springs Police Officer Paola Ramos met with Rene and Williams at the police station. Williams told Officer Ramos that she had to sleep in her car, stay with a friend, and sleep in a hotel because of the situation in the Condo. He went to the Condo on December 28, 2015, and it was still covered in the powder despite their cleaning efforts. The powder was on the walls and ceiling. Officer Ramos never saw any insects in the Condo. The amount of powder in the Condo was excessive. It was clear to Officer Ramos that defendant was causing Williams mental suffering.

B. DEFENSE CASE

Defendant met Williams in 2012 and she let him live in the Condo. Defendant gave Williams money to help her pay her homeowner association fees. Defendant insisted that his friend “Chris” brought the bed bugs into the Condo. Defendant wanted to rid the Condo of the bed bugs so he researched how to eradicate them. He first tried some oils but they did not work. He then found Karen, who recommended using the powder. She hired Lupita to help them distribute the powder in the Condo. Defendant insisted that Williams signed a written consent to use the powder, but he could not produce the document.

Defendant applied the amount of Diatameceous Earth powder that he thought would kill the bed bugs. He claimed he had seen over 100 of them throughout the Condo. He kept reapplying the powder because he was continuing to find live and dead bed bugs. He also insisted he took measures to clean up the powder. He admitted he never contacted an exterminator. He had no directions on how to use the powder. A friend of defendant’s testified that defendant was trustworthy.

DISCUSSION

A. SUBSTANTIAL EVIDENCE OF FELONY VANDALISM

Defendant contends there was insufficient evidence presented to support that he committed felony vandalism. Specifically, scant evidence was presented to show that he distributed the powder in the Condo “maliciously.”

1. STANDARD OF REVIEW

“When considering 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.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)

“ ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” (People v. Thomas (1992) 2 Cal.4th 489, 514.)

2. SUBSTANTIAL EVIDENCE OF FELONY VANDALISM

Vandalism requires a defendant to do an act “maliciously.” (§ 594, subd. (a).) “[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.’ ” (People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1282.)

In In re V.V. (2011) 51 Cal.4th 1020, the California Supreme Court found that “ ‘ [a] person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned . . . any structure, forest land, or property.” [Citation.] . . . ‘[M]aliciously’ [is defined] as involving ‘a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.’ ” (Id. at p. 1027.) The Supreme Court found “maliciously” contains two types of malice: (1) “[m]alice in fact—defined as ‘a wish to vex, annoy, or injure’ (§ 7, item 4)—consists of actual ill will or intent to injure”; and (2) “malice in law—is defined in section 7, item 4 as ‘an intent to do a wrongful act, established either by proof or presumption of law.’ ” (Id. 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.)

In In re V.V., the California Supreme Court concluded that the minors’ “acts of intentionally igniting and throwing a firecracker amid dry brush on a hillside, although done without intent to cause a fire or other harm, were sufficient to establish the requisite malice for arson.” (In re V.V., supra, 51 Cal.4th. at p. 1023.) The minors acted deliberately, and they were well-aware of the fire danger. (Id. at pp. 1030-1031.)

In Kurtenbach, supra, 204 Cal.App.4th 1264, the defendant hired a person to burn down his house for the insurance money. During the fire, a neighboring house sustained $100,000 in damage. The defendant was convicted of vandalism of the neighbor’s house. (Id. at pp. 1271-1272.) The defendant argued on appeal that the jury was improperly instructed that he could be convicted of vandalism of the neighbor’s house even though he did not intend to maliciously damage the neighbor’s house. (Id. at pp. 1281-1282.) The appellate court found there was no instructional error: “Based on the definition of ‘malice’ contained in section 7, item 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.” (Id. at p. 1282.)

Accordingly, here, the jury had to conclude that either defendant intended to vex, annoy or injure Williams by damaging the Condo, or he intentionally damaged the Condo without justification or excuse. (Kurtenbach, supra, 204 Cal.App.4th at p. 1282.)

Here, the jury could reasonably conclude that defendant maliciously put the powder around the Condo because she had wanted him to move out; it clearly damaged the Condo. Williams told defendant to move out but he refused. Defendant insisted there were bed bugs in the Condo and covered the Condo in the powder. There was no dispute that the Condo was covered in the powder and that this was not the normal use of the powder to eradicate bugs. It was on every surface, in every cabinet and in the vents of the Condo. When Karen tried to stop the use of so much powder, defendant responded, “ ‘No, put more. More you put down, the more she will stay away.’ ” This was substantial evidence that defendant maliciously put the powder in the Condo to annoy or vex Williams, and that he intended to cause damage.

Moreover, he continued to put the powder in the Condo despite Williams begging him to stop and her obviously being sick from it. It caused extensive damage to the Condo, requiring hours of cleaning, and everyone who entered got sick. Despite Williams’s efforts to clean the Condo, defendant would continue to add more of the powder. This was despite no one but defendant seeing any bed bugs in the Condo. The evidence established that the use of the powder was excessive, defendant continued to blanket the Condo with the powder despite knowledge it was making Williams sick, and he made no effort to clean up the powder. Defendant’s intentional act of distributing the powder throughout the Condo, causing damage, was sufficient to establish he acted maliciously.

Defendant insists the evidence established that he only put the powder in the Condo to eradicate the bed bugs and he had no malicious intent. However, this is based solely upon his self-serving testimony. The jury reasonably could conclude that defendant’s testimony was not credible, especially based on his comments to keep putting more powder to keep Williams away, and the amount of powder put he spread around the Condo. Substantial evidence supports that defendant intentionally put an excessive amount of the powder in the Condo to annoy and vex Williams and to cause damage.

B. LESSER OFFENSE OF MISDEMEANOR ELDER ABUSE

Defendant contends the trial court erred by failing to sua sponte instruct the jury with the lesser included offense of misdemeanor elder abuse.

“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.)

Felony elder abuse is committed when “[a]ny person who knows or reasonably should know that a person is an elder . . . and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes . . . any elder . . . to suffer, or inflicts thereon unjustifiable physical pain or mental suffering.” (§ 368, subd. (b)(1).) “[T]he difference between felony elder abuse and misdemeanor elder abuse is whether the abuse is perpetrated ‘under circumstances or conditions likely to produce great bodily harm or death.’ If it is, the crime is a potential felony. [Citation.] If it is not, the crime is a misdemeanor. [Citation.] Misdemeanor elder abuse is a lesser included offense of felony elder abuse.” (People v. Racy (2007) 148 Cal.App.4th 1327, 1334-1335; see also § 368, subd. (c).)

At the time the parties were preparing the jury verdict forms, defendant’s counsel stated, “Then, Your Honor, as to the elder abuse, it’s either guilty or not guilty. There’s no misdemeanor.” The trial court responded, “Correct. Although, it is a wobbler.” Defendant’s counsel responded, “Yes, sir. Thank you.”

“The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.” (People v. Breverman, supra, 19 Cal.4th at p. 154.) However, any error is waived if defense counsel intentionally invites it “express[ing] a deliberate tactical purpose in resisting or acceding to the complained-of instruction.” (People v. Valdez (2004) 32 Cal.4th 73, 115; accord People v. Cady (2016) 7 Cal.App.5th 134, 145.) “If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. Error is invited if counsel made a conscious tactical choice.” (People v. Cooper (1991) 53 Cal.3d 771, 831.)

Here, counsel for defendant stated on the record that there was no misdemeanor lesser offense for the elder abuse charge. Defendant’s counsel made it clear that defendant was either guilty or not guilty. The record reasonably supports that counsel had chosen an all or nothing defense to the charges. This is further evidenced in counsel’s closing argument that the charge was not supported by the evidence as there was no showing of likely great bodily harm or death or that defendant willfully acted to cause Williams physical pain or mental suffering.

Defendant insists that defense counsel acted out of mistake or ignorance in not seeking instruction on misdemeanor elder abuse. However, the record supports that defendant’s counsel made a deliberate, tactical decision to forgo instruction on misdemeanor elder abuse in order to obtain an acquittal, and advised the trial court not to address the misdemeanor. The invited error doctrine bars defendant from arguing on appeal that the trial court erred by not instructing the jury on that theory.

Defendant briefly contends that the failure to request the lesser offense instruction constituted ineffective assistance of counsel and he was prejudiced by his counsel’s actions. In order to prevail on a claim that defense counsel rendered ineffective assistance, defendant must show both that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel’s failings, the result would have been more favorable to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; People v. Hernandez (2012) 53 Cal.4th 1095, 1105.) “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” (People v. Bolin (1998) 18 Cal.4th 297, 333.) “It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different.” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)

There is no reasonable probability that the jury would have found defendant guilty of anything less than felony elder abuse. Here, the difference between the two crimes—felony and misdemeanor elder abuse—was whether the abuse was inflicted under circumstances likely to cause great bodily injury. Hence, the jury had to conclude that defendant acted “under circumstances or conditions likely to produce great bodily harm or death” in willfully inflicting unjustifiable physical pain or mental suffering on Williams. (§ 368, subd. (b)(1).)

Here, there was no evidence supporting that anything less than the circumstance and conditions in the Condo were likely to cause great bodily injury. There was no dispute that the amount of the powder was excessive and that it released a fine dust into the air that could get into the lungs. Williams was over 80 years old and was exposed to the powder. She had trouble breathing and had to move out. She passed out at the hospital. The prolonged exposure could have exposed her to COPD, and her age made her more susceptible to injury to her lungs. Defendant did not dispute any of this evidence and admitted he spread the powder throughout the Condo. The evidence establishes only that defendant’s actions were likely to cause great bodily injury.

Defendant claims that Williams was never treated or diagnosed with any injury. However, evidence of actual injury is not required. (See People v. Clark (2011) 201 Cal.App.4th 235, 245, fn. 6 [“There is no requirement that the victim actually sustain great bodily injury].)

Based on the foregoing, it is not reasonably probable that a result more favorable to defendant would have been reached if the jury was instructed on misdemeanor elder abuse. Defendant created an environment in the Condo that would likely result in Williams suffering great bodily injury and no evidence to the contrary was presented to the jury. Defendant’s mere speculation on appeal that the jury would have concluded he did not use the powder in a manner likely to cause great bodily injury does not support reversal of his conviction.

DISPOSITION

The judgment of conviction is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

SLOUGH

J.