Filed 8/18/20 P. v. Flores CA2/7
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                                     DIVISION SEVEN


THE PEOPLE,                                                 B299451

         Plaintiff and Respondent,                          (Los Angeles County
                                                            Super. Ct. No. YA099756)
         v.

GERMAN JAMIE FLORES,

         Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of
Los Angeles County, Scott T. Millington, Judge. Reversed in part
and remanded.
      Brian C. McComas, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven E. Mercer and Stephanie C. Santoro,
Deputy Attorneys General, for Plaintiff and Respondent.

                                 _______________________
       German Jamie Flores appeals from a judgment entered
after the jury convicted him of reckless driving, obstructing an
officer, felony hit and run with property damage, and felony
vandalism. Flores contends the trial court erred by failing to
instruct the jury on trespass as a lesser included offense of both
hit and run with property damage and felony vandalism. We
conclude the trial court committed prejudicial error in not
instructing the jury on trespass under Penal Code section 602,
subdivision (a),1 as a lesser included offense of felony vandalism.
We reverse and remand for a new trial on the felony vandalism
count.

        FACTUAL AND PROCEDURAL BACKGROUND

A.     The Information
       The information charged Flores with unauthorized driving
or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 1);
reckless driving (Veh. Code, § 23103, subd. (a); count 2); resisting,
delaying, or obstructing a peace officer (Pen. Code, § 148,
subd. (a)(1); count 3); hit and run with property damage (Veh.
Code, § 20002, subd. (a); count 4); and felony vandalism (Pen.
Code, § 594, subd. (a); count 5). As to counts 1 and 5, the
information alleged Flores suffered a prior conviction of a serious
or violent felony under the three strikes law (§§ 667,
subds. (b)-(j), 1170.12).




1       Further undesignated statutory references are to the Penal
Code.




                                 2
B.     The Evidence at Trial
       1.    The prosecution case
       At around 8:00 p.m. on March 1, 2019 Los Angeles County
Sheriff’s Deputy Erik Vaughn was driving in a patrol car when he
observed a Chrysler sedan driven by Flores straddle two lanes on
Palos Verdes Drive South. The parties stipulated the car had
been taken from a rental car company’s lot without the owner’s
permission sometime after January 25, 2019.
       After Flores straddled the lanes a second time, Deputy
Vaughn activated his patrol car’s lights and sirens to initiate a
traffic stop. Deputy Vaughn observed the sedan pull over to the
curb and slow down to five miles per hour, then merge back into
traffic. The sedan entered the left turning lane at a stop light
and attempted to make a U-turn while the left turn signal was
red. Wendy McNeely, who was headed in the opposite direction,
was waiting at the intersection to make a left turn. She had to
drive forward to avoid being hit by the sedan.
       As the sedan was making the U-turn, Deputy Vaughn saw
the door of the car open, and Flores, wearing a white hooded
sweatshirt, exited. Flores started running into a nearby
neighborhood. Deputy Vaughn followed and yelled “stop, put
your hands up” approximately 10 times, but Flores kept running.
Deputy Vaughn radioed for assistance to contain the scene.
       After Flores exited the sedan, the car continued to move
forward, crashed into the median, then travelled down a steep
slope. Terranea Resort employee William Hall heard a loud
thumping noise and scraping sound and then saw the sedan stop
on Terranea’s property. When Hall approached the sedan, the
driver’s side door was open and the engine was running, but
there was no one inside. Hall turned off the car’s engine. He




                               3
observed Flores’s driver’s license was still in the car. Hall took
photographs of the car and the vegetation that had been damaged
on Terranea’s property. The damaged vegetation included agave
plants, rose bushes, and a native California shrub called
lavatera. A landscaping company billed Terranea $1,055 to
replace the plants.
      About 10 minutes after Flores jumped out of the car, a
Terranea security officer saw Flores, shirtless, in a parking lot in
the resort. A Los Angeles County Sheriff’s deputy arrived with
another Terranea security officer and detained Flores.

       2.    The defense case
       Flores testified that on March 1, 2019 at around 7:00 p.m.,
he was at a park in Los Angeles. A friend whom Flores had
known at the park for about two or three months asked Flores to
pick up the friend’s cousin in the South Bay. Flores saw his
friend was drinking alcohol, and Flores agreed to help by not
letting him drive while intoxicated. The friend gave Flores the
keys to a Chrysler sedan.
       Flores got lost when he drove into an area with hills and
mountains as it started to get dark. The car began to stall
because it was running out of gas, so Flores pulled over to the
side of the road. After the car shut off, he turned it back on and
returned to the road. As Flores approached an intersection, he
drove into the left lane to make a U-turn to find a gas station. He
first heard the sirens from the patrol vehicle behind him at this
point. Flores did not recall straddling the traffic lanes.
       According to Flores, the left turn signal was green when he
started to make the U-Turn. As he was making the turn, his
steering wheel locked, and the car died. Flores managed to turn




                                 4
the car back on, but by then the car had started to travel down
the slope. Flores believed the car was going over a cliff, so he
jumped out. As he ran out, he tripped over some plants and
rolled down the embankment. Flores denied fleeing from the
police. When he came to a stop, Flores started walking around to
find his way back to the intersection. He had injured his left
shoulder in the fall, so he took off his sweatshirt, which was stuck
to his wound. As he was walking around, a Terranea security
officer and Sheriff’s deputy detained him.

C.    The Verdicts and Sentence
      The jury acquitted Flores on count 1 of the unauthorized
driving or taking of a vehicle, but it found him guilty of reckless
driving; resisting, delaying, or obstructing a peace officer; hit and
run with property damage; and felony vandalism. In a bifurcated
proceeding, Flores admitted the allegation he suffered a prior
conviction of a serious or violent felony within the meaning of the
three strikes law.
      The trial court sentenced Flores on count 5 for felony
vandalism to the upper term of three years, doubled as a second
strike to six years in state prison. The court sentenced Flores to
concurrent sentences on count 2 (reckless driving) to 90 days, on
count 3 (resisting, delaying, or obstructing a peace officer) to
364 days, and on count 4 (hit and run with property damage) to
180 days.
      Flores timely appealed.




                                  5
                          DISCUSSION

A.    Applicable Law and Standard of Review
      “‘“‘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.’”’” (People v.
Souza (2012) 54 Cal.4th 90, 114, quoting People v. Breverman
(1998) 19 Cal.4th 142, 154 (Breverman).) “It is error for a trial
court not to instruct on a lesser included offense when the
evidence raises a question whether all of the elements of the
charged offense were present, and the question is substantial
enough to merit consideration by the jury.” (People v. Booker
(2011) 51 Cal.4th 141, 181; accord, Breverman, at p. 177.) “[T]he
‘substantial’ evidence required to trigger the duty to instruct on
such lesser offenses is not merely ‘any evidence . . . no matter how
weak’ [citation], but rather ‘“evidence from which a jury
composed of reasonable [persons] could . . . conclude[]”’ that the
lesser offense, but not the greater, was committed.” (People v.
Cruz (2008) 44 Cal.4th 636, 664 (Cruz); accord, People v. Flannel
(1979) 25 Cal.3d 668, 684 & fn. 12 (Flannel).)
      There are two tests for a court to determine if an offense is
a lesser included offense of another: the elements test and the
accusatory pleading test, either of which triggers a trial court’s
duty to instruct on the lesser included offense. (People v.
Lopez (2020) 9 Cal.5th 254, 269 (Lopez); People v. Gonzalez (2018)
5 Cal.5th 186, 197.) “‘“Under the elements test, if the statutory
elements of the greater offense include all of the statutory
elements of the lesser offense, the latter is necessarily included in
the former. Under the accusatory pleading test, if the facts
actually alleged in the accusatory pleading include all of the




                                  6
elements of the lesser offense, the latter is necessarily included in
the former.”’” (Lopez, at pp. 269-270; accord, Gonzalez, at p. 197.)
However, when “the accusatory pleading incorporates the
statutory definition of the charged offense without referring to
the particular facts, a reviewing court must rely on the statutory
elements to determine if there is a lesser included offense.”
(People v. Robinson (2016) 63 Cal.4th 200, 207; accord, People v.
Anderson (1975) 15 Cal.3d 806, 809.)
      We independently review whether the trial court
improperly failed to instruct on a lesser included offense.
(People v. Souza, supra, 54 Cal.4th at p. 113; People v. Wang
(2020) 46 Cal.App.5th 1055, 1069.)

B.    The Trial Court Erred in Not Instructing the Jury on
      Trespass Under Section 602, subdivision (a), as a Lesser
      Included Offense of Felony Vandalism
      Flores contends trespass, as defined under section 602,
subdivisions (a), (c) and (n),2 is a lesser included offense of felony
vandalism (§ 594). The People concede trespass under
section 602, subdivision (c), is a lesser included offense of felony
vandalism, but they argue the trespass offenses under

2      Section 602, subdivision (a), defines trespass as
“willfully . . . [¶] . . . [c]utting down, destroying, or injuring any
kind of wood or timber standing or growing upon the lands of
another.” Subdivision (c) defines it as “willfully . . . [¶] . . . [and]
[m]aliciously injuring or severing from the freehold of another
anything attached to it, or its produce.” Subdivision (n) defines it
as “willfully . . . [¶] . . . [d]riving any vehicle . . . upon real
property belonging to, or lawfully occupied by, another and
known not to be open to the general public, without the consent of
the owner, the owner’s agent, or the person in lawful possession.”




                                   7
section 602, subdivisions (a) and (n), are not. We conclude the
offenses of trespass under section 602, subdivisions (a) and (c),
but not (n), are lesser included offenses of felony vandalism.
However, substantial evidence supported an instruction on
trespass under only subdivision (a).

      1.     Trespass under section 602, subdivision (a), is a lesser
             included offense of felony vandalism
      The People contend trespass under section 602,
subdivision (a), is not a lesser included offense of felony
vandalism because the plants Flores damaged—agave plants,
rose bushes, and a shrub called lavatera—are not wood or timber.
But the threshold question under the accusatory pleading test is
not what Flores damaged, but what the information alleged he
damaged. (People v. Smith (2013) 57 Cal.4th 232, 244 [“The
accusatory pleading test” “does not require or depend on an
examination of the evidence adduced at trial. The trial court
need only examine the accusatory pleading.”]; People v. Munoz
(2019) 31 Cal.App.5th 143, 156 [“The Supreme Court has
indicated repeatedly . . . that when applying the accusatory
pleading test to determine whether one offense is necessarily
included in another, courts do not look to evidence beyond the
actual pleading and its allegations regarding the purported
greater offense.”].) As discussed, we consider whether the facts
alleged in the information as to the charged offense include all
the elements of the lesser offense. (Lopez, supra, 9 Cal.5th at
pp. 269-270; People v. Gonzalez, supra, 5 Cal.5th at p. 197.) They
do.
      The information alleged Flores committed vandalism when
he “unlawfully and maliciously damage[d] and destroy[ed] real




                                 8
and personal property, to wit, trees, irrigation system not his/her
own, belonging to TERRANEA RESORT.” Under section 602,
subdivision (a), a person commits trespass by willfully destroying
or injuring “any kind of wood or timber standing or growing upon
the lands of another.” The dictionary definition of “wood” is “the
hard fibrous substance consisting basically of xylem that makes
up the greater part of the stems, branches, and roots of trees or
shrubs beneath the bark and is found to a limited extent in
herbaceous plants.” (Merriam -Webster’s Online Dict. (2020)
<https://www.merriam-webster.com/dictionary/wood> [as of
August 17, 2020]; see American Heritage Dict. Online (2020)
<https://ahdictionary.com/word/search.html?q=wood> [as of
August 17, 2020] [defining “wood” as “the secondary xylem of
trees and shrubs, lying beneath the bark and consisting largely of
cellulose and lignin”].) Thus, by alleging Flores maliciously
destroyed trees, which contain “wood,” the alleged facts include
all the elements of the lesser offense of trespass under
section 602, subdivision (a).3

      2.    The trial court had a duty to instruct the jury on
            trespass under section 602, subdivision (a), as a lesser
            offense of felony vandalism
      As discussed, a trial court is required to instruct on a lesser
included offense where there is “‘“evidence from which a jury
composed of reasonable [persons] could . . . conclude[]”’ that the


3     Further, because shrubs also contain “wood,” what Flores
actually damaged (the shrub lavatera) contained wood.
Arguably, rose bushes also contain wood.




                                  9
lesser offense, but not the greater, was committed.” (Cruz, supra,
44 Cal.4th at p. 664; accord, Flannel, supra, 25 Cal.3d at p. 684 &
fn. 12.) “In deciding whether evidence is ‘substantial’ in this
context, a court determines only its bare legal sufficiency, not its
weight.” (Breverman, supra, 19 Cal.4th at p. 177; accord,
People v. Vasquez (2018) 30 Cal.App.5th 786, 792 (Vasquez).)
“Thus, ‘courts should not evaluate the credibility of witnesses, a
task for the jury’ [citation], and uncertainty about whether the
evidence is sufficient to warrant instructions should be resolved
in favor of the accused.” (Vasquez, at p. 792.)
       Viewing the evidence in the light most favorable to Flores,
there is substantial evidence from which the jury could have
concluded Flores committed trespass based on section 602,
subdivision (a), but not felony vandalism. The required mental
state for trespass under section 602, subdivision (a), is that the
defendant commit the offense “willfully,” whereas for felony
vandalism the defendant must act “maliciously” (§ 602, subd. (a);
§ 594, subd. (a).) “Maliciously” is defined as “a wish to vex,
annoy, or injure another person, or an intent to do a wrongful
act.” (§ 7, subd. (4).) By contrast, “[t]he word ‘willfully,’ when
applied to the intent with which an act is done or omitted,
implies simply a purpose or willingness to commit the act, or
make the omission referred to. It does not require any intent to
violate law, or to injure another, or to acquire any advantage.”
(Id., subd. (1)) “‘[T]he terms “willful” or “willfully,” when applied
in a penal statute, require only that the illegal act or omission
occur “intentionally,” without regard to motive or ignorance of the
act’s prohibited character.’” (People v. Atkins (2001), 25 Cal.4th
76, 85; accord, Hale v. Morgan (1978) 22 Cal.3d 388, 396.)
“‘Willfully implies no evil intent; “‘it implies that the person




                                 10
knows what he is doing, intends to do what he is doing and is a
free agent.’”’” (Atkins, at p. 85.)
       Based on Flores’s testimony at trial, a jury composed of
reasonable persons could conclude Flores damaged or destroyed
the Terranea plants willfully but not maliciously. He testified
that when he was attempting to make a U-turn, the steering
wheel locked, and the car died. He jumped out of the car because
he thought it was going down a cliff. Because we are not
determining the weight of Flores’s testimony or evaluating his
credibility, reviewing the evidence in the light most favorable to
Flores, a reasonable jury could have found Flores intentionally
abandoned the car, thus willfully, but with the intent to save his
life, not with the intent to annoy or injure another person or with
the intent to do a wrongful act, and thus not maliciously.
Further, even under the People’s theory of the case, Flores
jumped out of the car to avoid being caught for stealing the car,
thus willfully abandoning the car, but without acting maliciously.

      3.     The trial court’s error was prejudicial
      We agree with Flores the trial court’s error in not
instructing the jury on the lesser offense of trespass was
prejudicial. However, contrary to Flores’s contention, we consider
whether the error was prejudicial under People v. Watson (1956)
46 Cal.2d 818, 836 (Watson), applicable to errors of California
law. As the Supreme Court held in Breverman, supra, 19 Cal.4th
at page 169, “[T]he rule requiring sua sponte instructions on all
lesser necessarily included offenses supported by the evidence
derives exclusively from California law.” (Accord, People v.
Beltran (2013) 56 Cal.4th 935, 955 (Beltran).) Therefore, “in a
noncapital case, error in failing sua sponte to instruct, or to




                                11
instruct fully, on all lesser included offenses and theories thereof
which are supported by the evidence must be reviewed for
prejudice exclusively under Watson.” (Breverman, at p. 178;
accord, Vasquez, supra, 30 Cal.App.5th at p. 798.) “[U]nder
Watson, a defendant must show it is reasonably probable a more
favorable result would have been obtained absent the error.”
(People v. Mena (2012) 54 Cal.4th 146, 162; accord, Beltran, at
p. 955.)
       The Watson test “focuses not on what a reasonable jury
could do, but what such a jury is likely to have done in the
absence of the error under consideration. In making that
evaluation, an appellate court may consider, among other things,
whether the evidence supporting the existing judgment is so
relatively strong, and the evidence supporting a different outcome
is so comparatively weak, that there is no reasonable probability
the error of which the defendant complains affected the result.”
(Breverman, supra, 19 Cal.4th at p. 177; accord, Beltran, supra,
56 Cal.4th at p. 956.)
       Here, unlike in Beltran, in which the Supreme Court
concluded the trial court’s failure fully to instruct on the lesser
offense of voluntary manslaughter was harmless error, evidence
that Flores acted maliciously was “weak and contradicted.”
(Beltran, supra, 56 Cal.4th at p. 956; see Vasquez, supra,
30 Cal.App.5th at p. 801 [failure to instruct on lesser offense was
not harmless error, noting “[t]his is not a case in which the jury
demonstrably decided every contested issue in favor of the
prosecution and fully credited every prosecution witness.”].)
       In his closing, the prosecutor argued Flores exited the car
when Deputy Vaughn tried to pull him over because Flores knew
he was driving a car without the owner’s permission and was




                                12
trying to distance himself from the car. But the jury rejected this
argument, acquitting Flores of driving or taking a vehicle without
consent under Vehicle Code section 10851, subdivision (a).
Moreover, there is no evidence contradicting Flores’s claim the
car died because it ran out of gas as he attempted to make a
U-turn, causing him to jump out of the car. This is therefore a
situation where the evidence supporting a trespassing conviction
based on intentional conduct is strong, but the evidence
supporting a vandalism conviction based on malicious conduct is
weak.
         “The rationale for requiring courts to instruct on lesser
included offenses is to avoid forcing the jury into an
‘“unwarranted all-or-nothing choice”’ that creates the risk the
jury will convict on the charged offense even though one of the
elements remains in doubt because ‘“the defendant is plainly
guilty of some offense.”’” (Vasquez, supra, 30 Cal.App.5th at
p. 798; accord, People v. Hughes (2002) 27 Cal.4th 287, 365;
People v. Majors (1998) 18 Cal.4th 385, 410 [“One of the primary
reasons for requiring instructions on lesser included offenses
is . . . to eliminate ‘“the risk that the jury will convict . . . simply
to avoid setting the defendant free.”’”].) Although Flores was
charged with other offenses, the jury could have convicted Flores
of felony vandalism to ensure a conviction relating directly to the
damage he caused to the Terranea property. On the record here,
Flores has met his burden to show it is reasonably probable he
would have achieved a more favorable result had the trial court
instructed on the lesser offense of trespassing. (Beltran, supra,
56 Cal.4th at p. 955; People v. Mena, supra, 54 Cal.4th at p. 162.)




                                  13
      We reverse Flores’s conviction of felony vandalism and
remand for a retrial on this count.4 If the prosecutor elects not to
retry Flores on the felony vandalism count, the trial court shall
resentence Flores accordingly.

C.     Trespass Under Section 602, subdivision (c), Is a Lesser
       Included Offense of Felony Vandalism, but the Trial Court
       Was Not Required To Instruct on the Offense
       The People concede, and we agree, trespass, as defined
under section 602, subdivision (c), is a lesser included offense of
felony vandalism, but the trial court had no duty to instruct on it.
A person commits felony vandalism if he or she willfully and
maliciously damages or destroys real or personal property
causing damage of $400 or more. (§ 594, subds. (a) & (b)(1).)
Section 602, subdivision (c), defines trespass as “maliciously
injuring or severing from the freehold of another anything
attached to it, or its produce.” Applying the elements test, the
statutory definition of felony vandalism contains all the elements
of trespass as set forth in section 602, subdivision (c), with the
additional requirement that the amount of damage or destruction
be at least $400. Trespass is therefore a lesser included offense of
felony vandalism. (Lopez, supra, 9 Cal.5th at p. 270.)
       However, there was not substantial evidence on which the
jury could have found trespass under section 602, subdivision (c),


4     Because Flores does not argue on appeal, there is
insufficient evidence to support his conviction of felony
vandalism, retrial of this count does not violate principles of
double jeopardy. (People v. Story (2009) 45 Cal.4th 1282, 1295;
People v. Morgan (2007) 42 Cal.4th 593, 613; People v.
Jones (2018) 26 Cal.App.5th 420, 437.)




                                 14
but not felony vandalism. The People presented uncontradicted
evidence at trial that Flores caused $1,055 in damage to
Terranea property. There was therefore no evidence on which a
jury composed of reasonable persons could conclude Flores
committed trespass with damage less than $400. (Cruz, supra,
44 Cal.4th at p. 664; Flannel, supra, 25 Cal.3d at p. 684 & fn. 12.)

D.    Trespass Under Section 602, subdivision (n), Is Not a Lesser
      Included Offense of Felony Vandalism
      Under section 602, subdivision (n), a person commits
trespass by “willfully . . . [¶] . . . [d]riving any vehicle . . . upon
real property belonging to, or lawfully occupied by, another and
known not to be open to the general public, without the consent of
the owner, the owner’s agent, or the person in lawful possession.”
The requirement the property be known not to be open to the
general public is an element of trespass, but not of vandalism. A
person can therefore maliciously destroy another person’s real
property that is open to the general public, committing
vandalism, without committing trespass under section 602,
subdivision (n). Therefore, trespass is not a lesser included
offense of vandalism under the elements test.5 (See Lopez, supra,
9 Cal.5th at pp. 269-270 & fn. 6 [petty theft is not a lesser
included offense of shoplifting under the elements test because
the elements of shoplifting do not require a taking]; People v.
Belmares (2003) 106 Cal.App.4th 19, 24 [resisting a peace officer

5     Likewise, the information did not allege the Terranea was
known not to be open to the general public. Thus, under the
accusatory pleading test as well, the alleged vandalism did not
include all the elements of trespass under section 602,
subdivision (c). (Lopez, supra, 9 Cal.5th at pp. 269-270.)




                                  15
is not a lesser included offense of deterring an executive officer
under the elements test because a person can deter an officer’s
duty in the future without resisting the officer’s discharge or
attempted discharge of a duty at the time of the offense].)

E.     Trespass Is Not a Lesser Included Offense of Hit and Run
       With Property Damage
       Flores alternatively contends the trial court had a duty to
instruct the jury on trespass, as defined under section 602,
subdivisions (a), (c) and (n), as a lesser included offense of hit and
run with damage. (Veh. Code, § 20002, subd. (a).) Flores’s
contention lacks merit. The information alleged Flores
committed the offense of hit and run with property damage in
violation of Vehicle Code section 20002, subdivision (a), by
“driving a vehicle involved in an accident resulting in property
damage and fail[ing] to immediately stop and either (1) locate
and notify the owner or person in charge of the damaged
property . . .; or (2) leave in a conspicuous place . . . a written
notice.” These allegations incorporate the statutory definition of
the offense of hit and run with property damage. (Veh. Code,
§ 20002, subd. (a).)6 Because the information incorporates the
statutory definition of the offense without additional factual


6      Vehicle Code section 20002, subdivision (a), provides, “The
driver of any vehicle involved in an accident resulting only in
damage to any property, including vehicles, shall immediately
stop the vehicle . . . [and] also immediately do either of the
following: [¶] (1) Locate and notify the owner or person in charge
of that property of the name and address of the driver and owner
of the vehicle involved . . . . [¶] (2) Leave in a conspicuous place
on the vehicle or other property damaged a written notice.”




                                 16
allegations, we apply the elements test. (People v. Robinson,
supra, 63 Cal.4th at p. 207.) We therefore do not consider the
common law definition of trespass, as argued by Flores.
      The statutory elements of hit and run with property
damage do not require damage to “wood or timber standing or
growing upon the lands of another” (§ 602, subd. (a)), another
person’s freehold (id., subd. (c)), or real property (id., subd. (n)).
Trespass is therefore not a lesser included offense because a
defendant can commit a trespass without also committing hit and
run with property damage, for example, by causing damage to a
vehicle without notifying the owner. (See Lopez, supra, 9 Cal.5th
at pp. 269-270 & fn. 6.)

                          DISPOSITION

       The judgment of conviction of felony vandalism is reversed.
We remand for a retrial on this count. If the prosecutor elects not
to retry Flores on the felony vandalism count, the trial court shall
resentence Flores accordingly.



                                            FEUER, J.
We concur:



      PERLUSS, P. J.



      SEGAL, J.




                                 17
