Filed 11/19/13 P. v. Acosta CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A133462
v.
STEVE P. ACOSTA,                                                     (San Francisco City & County
                                                                     Super. Ct. No. 206899)
         Defendant and Appellant.

     A jury convicted defendant Steve P. Acosta of multiple offenses against his former
spouse, including attempted murder, torture, criminal threats, and infliction of great
bodily injury involving domestic violence, and felony vandalism. Defendant contends
his convictions must be reversed in whole or in part because (1) the trial court improperly
denied his motion to represent himself during trial, and (2) there was insufficient
evidence he committed vandalism. Finding no merit in defendant’s arguments, we affirm
the judgment.
                                                  I. BACKGROUND
A. Charges
         Defendant was charged in a third amended information with one count of torture
(Pen. Code,1 § 206) with the use of a deadly weapon (§ 12022, subd. (b)(1)) and the
infliction of great bodily injury involving domestic violence (§ 12022.7, subd. (e)), two
counts of stalking (§ 646.9, subds. (a), (b)) with the use of a deadly weapon (§ 12022,
subd. (b)(1)) and the infliction of great bodily injury involving domestic violence
         1
             All further statutory references are to the Penal Code.
(§ 12022.7, subd. (e)), four counts of criminal threats (§ 422), four counts of disobeying a
domestic relations order (§ 273.6, subd. (a)), two counts of vandalism (§ 594,
subds. (b)(1) & (b)(2)(A)), one count of premeditated attempted murder (§§ 187,
subd. (a), 664) with the use of a deadly weapon (§ 12022, subd. (b)(1)) and the infliction
of great bodily injury involving domestic violence (§ 12022.7, subd. (e)), one count of
aggravated mayhem (§ 205) with use of a deadly weapon (§ 12022, subd. (b)(1)), one
count of assault with a deadly weapon (§ 245, subd. (a)(1)) and the infliction of great
bodily injury involving domestic violence (§ 12022.7, subd. (e)), one count of residential
burglary (§ 459) with use of a deadly weapon (§ 12022, subd. (b)(1)), one count of
domestic violence (§ 273.5, subd. (a)) with the use of a deadly weapon (§ 12022,
subd. (b)(1)) and the infliction of great bodily injury involving domestic violence
(§ 12022.7, subd. (e)), two counts of battery (§ 242), and one count of contempt of a
protective order (§ 166, subd. (c)(1)). The third amended information further alleged
defendant had two strike priors (§§ 667, subds. (a)(1), (d) & (e), 1170.12, subds. (b) &
(c)) for assault with a deadly weapon (§ 245, subd. (a)) and for assault with force likely to
cause great bodily injury (§ 245, subd. (a)(1)) with the infliction of great bodily injury
(§ 12022.7).
B. Prosecution Evidence
       Kimberly Celoni and defendant were married in February 1997. At the end of
2007, defendant told Celoni he wanted a divorce but she resisted. After defendant stalked
her, accused her of infidelity, and made threats of violence against her and her children,
Celoni agreed to a divorce in March 2008. After a further stalking incident on April 2,
2008, she filed a police report and obtained a protective order.
       At this time, Celoni and defendant jointly owned a Mercedes SUV, which
defendant referred to as his “truck.” They both made payments on the vehicle. Celoni
separately owned a convertible Mercedes 280 SLK. At an April 9, 2008 divorce hearing
the judge ordered that both vehicles go into Celoni’s custody. The judge instructed
defendant to figure out how much the Mercedes SUV was worth and give Celoni half that
amount. In response to the judge’s instructions, defendant became furious and “started


                                              2
ranting and raving in the courtroom and walked right out before it was finished.” Before
storming out, defendant told the court all he wanted was his truck.
       At the same hearing, a five-year restraining order was issued against defendant.
Among other constraints, it ordered defendant to stay at least 100 yards away from
Celoni, her home, job, and car. Defendant refused to accept the order documents at the
hearing.
       Two days later, on April 11, Celoni drove past defendant in her Mercedes
convertible on Mission Street in San Francisco. Spotting her, defendant said, “Hey,
bitch. Come on over here.” Celoni made a U-turn in the middle of the street to escape
confrontation with defendant whereupon he immediately called her cell phone. Celoni
drove directly to the police station where, together with Officer Campagnoli of the
domestic violence unit, she listened to his voicemails. In the voicemail messages
defendant told Celoni the “last motherfucker you’ll see is me” at “four in the
motherfucking morning” and he would go to “death row” for what he planned to do.
Defendant repeatedly stated: “I’m taking everything from you that you took from me.”
       On the night of April 13, Celoni left her Mercedes convertible and the Mercedes
SUV she shared with defendant parked in front of her house. Both vehicles were in good
condition at this time. The next morning all four tires on both vehicles had been slashed.
       On April 15, Celoni was at her office when defendant once again called. In his
voice message he told Celoni: “Now you have everything. Just look out your window.”
Celoni spotted defendant from the window in the back of her office walking out of the
office parking lot up Mission Street. In another message left the same day defendant
stated: “[Y]ou ended up treating me like a gorilla pimp. Think about it. You said fuck
it, I’m taking the truck . . . and I’m disrespecting you.”
       At the end of the workday, Celoni discovered photos of her daughter and
granddaughter under the windshield wiper on her car. She recognized the photos as those
belonging to defendant. Celoni’s car was parked in the office parking lot where
defendant had been seen earlier that day.



                                               3
       After weeks of intimidation, defendant turned threat to action when, at
approximately 4:18 a.m. on April 16, he broke into Celoni’s home through the garage
door window. Defendant made verbal threats against Celoni’s life and brandished a
hammer as he attempted to enter through the window. Unable to safely escape defendant
from the ground floor, Celoni jumped from the upstairs balcony. The fall broke her back
and rendered her immobile. Finding her vulnerable, defendant began to strike Celoni
repeatedly with the hammer. The majority of the blows landed on Celoni’s head,
although her left hand was also severely injured as she attempted to shield her face from
the attack. As a result of the permanent injuries she sustained in the attack, Celoni is now
on lifetime disability.
C. Defense Evidence
       The sole defense witness, defendant’s brother, Ken Acosta, testified to defendant’s
tumultuous history of drug abuse. Acosta testified his brother sustained a long period of
sobriety during his marriage to Celoni, but began using narcotic drugs again in the
months prior to his attack on Celoni in April 2008. In summation, the defense admitted
to defendant’s threats and violence but argued defendant’s intoxication at the time of the
offenses prevented him from forming the specific intent necessary to sustain conviction
on the associated charges. On the charge of vandalism, the defense argued the evidence
did not support a finding of guilt beyond a reasonable doubt.
D. Verdict, Sentence, Appeal
       The jury acquitted defendant of two of the four criminal threat counts, and one of
the two stalking counts was presented to the jury as a lesser included offense. Defendant
was found guilty of all remaining counts and all of the special allegations associated with
those counts were found to be true.
       The trial court sentenced defendant to an aggregate term of 142 years to life in
prison. This timely appeal followed.




                                             4
                                       II. DISCUSSION
A. Faretta Motion
       Defendant first contends the trial court erred in denying his motion to represent
himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta).
       1. Facts
       After a complaint was filed on April 18, 2008, charging defendant with 23 counts,
defendant was arraigned on November 3, 2008. The case ultimately went to trial July 11,
2011. During the interim three years, 2008, 2009, and 2010, defendant made six separate
requests to continue his trial. In addition to the requested continuances, defendant
submitted multiple motions to substitute counsel during the three years preceding trial.
Defendant submitted a Marsden2 motion on October 9, 2008, against his first defense
attorney, Kenneth Quigley. This motion was denied. However, Quigley was ultimately
relieved for good cause on June 8, 2010, and replaced by Floyd Andrews. Defendant
made two motions to discharge Andrews, on May 2 and 16, 2011.
       Defendant’s trial commenced on July 11, 2011. During a hearing on in limine
motions on the second day of trial, defendant interjected as follows: “Can I address the
Court real quick? I’ve been waiting since I got in this jail for a time that I ask to address
the Court, patiently.” After the court asked defendant to first take some time to consider
what he planned to tell the court and to confer with defense counsel before doing so,
defendant stated: “I’m almost willing to plead guilty so I don’t have to listen to [the
prosecutor’s] squeaky voice another minute. I want to make a Faretta motion.” The
court informed defendant that it was “too late” to make a Faretta motion as the trial had
already begun.
       Defendant stated he had been waiting for a time to make the Faretta motion and
he had not been aware he was in the process of trial until the day prior. He further
submitted he had tried two Marsden motions, both of which had been denied. To this,

       2
         People v. Marsden (1970) 2 Cal.3d 118 (Marsden) (holding a defendant has the
right to discharge appointed counsel upon a showing of ineffective representation).



                                              5
the court explained the Faretta motion is a motion for self-representation and defendant’s
attorney could no longer help him. The following colloquy ensued: “THE COURT:
You won’t be permitted to have [defense counsel] sitting there so that he could advise
you as to what to do or you couldn’t consult with him or anything. You are on your own.
That’s the motion that you are making right now? [¶] THE DEFENDANT: Under pro
per, I can get some help to help me guide through the system. [¶] THE COURT: That
type of help to guide you through the system is not available on a Faretta motion. [¶]
THE DEFENDANT: Maybe I have it mixed up. Can you consider it? I would rather
just defend myself. [¶] THE COURT: Based upon the record before me now and the
timing of the motion and the reasons that you give, you are tired of listening to the
prosecutor? [¶] THE DEFENDANT: I was being facetious. Really, she drives me crazy,
but that’s not my issue. I don’t feel I’m getting representation here and I—no insult to
the lawyer, he’s great, but I don’t think—this is not a good fit. It’s not working. [¶] THE
COURT: . . . [¶] The Court views your position as being you are seeking the Court to
give you another attorney, which the Court is not going to do. It’s untimely to do at this
point. [¶] And it’s also a motion to represent yourself in case I don’t give you another
attorney. [¶] On the surface of it, based upon what you’ve told me here, this is an
apparent use—some might say manipulation of two rights—in the hope that some type of
error might arise out of that.”
       The court subsequently held a hearing on the Marsden motion outside of the
presence of the prosecutor. At this hearing, defendant expressed frustration with his
attorney due to a lack of witnesses to testify on his behalf: “Nobody is being contacted.
I’m not okay with the idea of going to jail for the rest of my life. I’m 60. And there’s
virtually no witnesses—character witnesses or legal witnesses.” When questioned further
as to who he believed should be called defendant stated: “I would have to get a phone
book and address book of people I’ve known for the last 30 years.” He continued, “I
would need some help, and I would need a private investigator. That’s why I think I
could do it on my own.” When the court requested he describe the witnesses if he could
not name them, defendant offered: “My director at my job. There’s some 40 or 50


                                             6
clients who are their family members. There’s my family members. There’s 50 people
in Narcotics Anonymous . . . .”
       The court denied defendant’s motions to discharge current counsel and to
represent himself at trial. As with defendant’s prior Marsden motions regarding
Andrews, the court determined defendant had not offered evidence showing defense
counsel provided inadequate representation or the presence of irreconcilable conflict
likely to result in ineffective representation. Quite to the contrary, in the court’s view
“ ‘the quality of counsel’s representation . . .’ [¶] . . . has been excellent.” Quoting from
and citing the reasoning in People v. Marshall (1996) 13 Cal.4th 799, 827, the court
determined defendant’s Faretta motion to be untimely and equivocal. Specifically, the
court underscored the “unreasonable” length of time between defendant’s arraignment
and the requested Faretta motion. Also “clear from [the] record” was “ ‘defendant’s
prior proclivity to substitute counsel.’ ” The court further observed the need to consider
the potential for disruption and delay to proceedings. To this end, the court stated:
“[T]he defendant has presented nothing to this Court to indicate that he would be able to
proceed expeditiously with the trial on his own.” To the contrary, the court noted
defendant’s ill-conceived belief that he would receive assistance “to guide him through
the proceedings . . . shows that there would be a substantial disruption or delay.” The
court determined the delay would be untenable given “the stage of the proceedings is at
the trial stage right now . . . . this is the second day of trial.” Further, based on the timing,
the “entire record before the Court and the defendant’s reasoning,” the court could not
“make [the] finding” that defendant’s motion was “clear and unequivocal” and “premised
on a real desire to act as his own attorney.”
       2. Applicable Law
        Under the Sixth Amendment, a defendant has a federal constitutional right to
represent himself if he knowingly and intelligently elects to do so. (Faretta, supra,
422 U.S. 806.) However, the right to self-representation is not absolute. Motions for
self-representation made within close range of or after commencement of a defendant’s
trial may be rejected subject to the trial court’s discretion: “In order to invoke an


                                                7
unconditional right of self-representation, the defendant must assert the right ‘within a
reasonable time prior to the commencement of trial.’ [Citations.] A motion made after
this period is addressed to the sound discretion of the trial court.” (People v. Burton
(1989) 48 Cal.3d 843, 852, italics added.)
       As stated in People v. Windham (1977) 19 Cal.3d 121 (Windham): “For example,
a defendant should not be permitted to wait until the day preceding trial before he moves
to represent himself and requests a continuance in order to prepare for trial without some
showing of reasonable cause for the lateness of the request. In such a case the motion for
self-representation is addressed to the sound discretion of the trial court which should
consider relevant factors . . . .” (Id. at p. 128, fn. 5.)
       Furthermore, the timeliness determination is not based on an arbitrary sum of
days, but rather, upon the trial court’s consideration of the “totality of the circumstances”
at the time the motion is made. (People v. Lynch (2010) 50 Cal.4th 693, 724, overruled
on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 636–643.) Such
circumstances include: the time between the motion and the scheduled trial date,
“whether trial counsel is ready to proceed to trial, the number of witnesses and the
reluctance or availability of crucial trial witnesses, the complexity of the case, any
ongoing pretrial proceedings, and whether the defendant had earlier opportunities to
assert his right of self-representation.” (Id. at p. 726.) In balance with the Sixth
Amendment right to effective assistance of counsel, the court is required to “draw every
inference against supposing that the defendant wishes to waive the right to counsel.”
(People v. Marshall (1997) 15 Cal.4th 1, 23 (Marshall).) To grant such a waiver, the trial
court must find a defendant’s motion for self-representation to be unequivocal.
(Windham, supra, 19 Cal.3d at pp. 127–128.) As stated in People v. Valdez (2004)
32 Cal.4th 73, 98–99 (Valdez): “ ‘[T]he court . . . should evaluate not only whether the
defendant has stated the motion clearly, but also . . . . the defendant’s conduct or words
reflecting ambivalence about self-representation . . . . A motion for self-representation
made in passing anger or frustration, an ambivalent motion, or one made for the purpose
of delay or to frustrate the orderly administration of justice may be denied.” (Marshall,


                                                 8
supra, 15 Cal.4th at p. 23.) However, if the request is both timely and unequivocal, the
trial court must grant a defendant’s motion for self-representation without concern for the
wisdom of such a decision. (Windham, at pp. 127–128.)
       A reviewing court must give “ ‘ “considerable weight” ’ ” to the trial court’s
exercise of discretion. (People v. Hall (1978) 87 Cal.App.3d 125, 132.) This discretion
is extensive. (People v. Hardy (1992) 2 Cal.4th 86, 196.) We presume the court knows
and correctly applies the law. (People v. Coddington (2000) 23 Cal.4th 529, 644,
overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069,
fn. 13.)
       3. Analysis
       Defendant contends the trial court erroneously denied his Faretta motion in
violation of his federal constitutional right to self-representation.
       Defendant first argues his Faretta request was unequivocal. His claim is
straightforward: because he plainly stated the words, “I want to make a Faretta motion,”
defendant maintains his request was unequivocal. We disagree.
       Our Supreme Court in Marshall stated: “It is not only the stability of judgments
that is at stake . . . when we require a defendant to make an unequivocal request for self-
representation. The defendant’s constitutional right to the effective assistance of counsel
also is at stake.” (Marshall, supra, 15 Cal.4th at pp. 22–23.) In order to protect this
fundamental right, the United States Supreme Court specifically instructed the trial courts
to ascertain “whether the defendant truly desires to represent himself or herself.” (Id. at
p. 23.) Apart from the defendant’s clear statement of the Faretta motion, the court must
consider the totality of his words and conduct reflecting ambivalence about self-
representation. (Valdez, supra, 32 Cal.4th at pp. 98–99.)
       A motion for self-representation made “in passing anger or frustration” may be
denied. (Marshall, supra, 15 Cal.4th at p. 23.) Defendant’s original statement, “I want to
make a Faretta motion,” was made in close conjunction with his complaint regarding the
prosecutor’s “squeaky voice.” So ambiguous was his statement, the trial court was
forced to clarify: “THE COURT: Based upon the record before me now and the timing


                                               9
of the motion and the reasons that you give, you are tired of listening to the prosecutor?”
While defendant then denied his annoyance factored into his request, his full statement
reflects frustration rather than a fully considered desire for self-representation.
       Defendant’s comments to the court also suggest he lacked basic knowledge of
what self-representation would entail. The trial court had to repeatedly explain to
defendant the realities of his proposed motion. He admitted his own confusion, stating,
“Maybe I have it mixed up,” but nonetheless requested the court proceed to consider his
Faretta motion. Defendant’s queries about “get[ting] some help to help me guide
through the system” combined with his complaints to the court regarding his trial counsel
tend to support the trial court’s intuition that defendant’s interest in bringing the Faretta
motion was to be rid of his attorney rather than a sincere and contemplated desire to
represent himself. (People v. Scott (2001) 91 Cal.App.4th 1197, 1205.) Defendant’s
confusion and his focus on dissatisfaction with Andrews are also sufficient grounds to
find his Faretta motion equivocal. (Scott, at p. 1205.)
       Defendant complains the trial court “precluded [him] from making his Faretta
request more unequivocal.” He argues the trial court’s first response stating his Faretta
request was “too late,” “ ‘foreclosed any realistic possibility [he] would perceive self-
representation as an available option,’ ” thereby preventing him from making an
unequivocal invocation. (See People v. Dent (2003) 30 Cal.4th 213, 219.) This assertion
ignores the entirety of the trial court’s discussion of defendant’s Faretta motion.
Following the challenged comment, the trial court engaged defendant in lengthy
conversation to make certain he understood what a Faretta request entailed. Reasonably
deducing defendant might be dissatisfied with his representation, the trial court offered
him an in camera Marsden hearing on the spot so defendant could freely voice his
concerns regarding defense counsel. Upon its denial of the Marsden motion, the trial
court informed defendant it would next turn to consideration of his Faretta motion. We
find the trial court’s management of defendant’s Faretta motion provided abundant
opportunity for defendant to unequivocally state his request for self-representation.



                                              10
       Defendant next contends his motion would have been considered timely under the
interpretation of Faretta applied in certain federal appellate courts. In the event of any
discrepancy in the application of the United States Supreme Court’s precedents regarding
self-representation, however, we are bound to follow our own high court’s rulings.
(People v. Burton, supra, 48 Cal.3d at p. 854.)
       Defendant correctly points out that the California Supreme Court has not fixed any
set time (People v. Clark (1992) 3 Cal.4th 41, 99–100; Windham, supra, 19 Cal.3d at
p. 128), however as defendant concedes, California precedent firmly supports the trial
court’s finding that defendant’s Faretta motion was untimely because it was submitted
after trial had begun. (See People v. Clark, at pp. 99–100 [before jury selection, while
pretrial motions were being heard]; People v. Hamilton (1985) 41 Cal.3d 408, 419–421
[motion made during pretrial proceedings on motion to suppress and again during jury
selection]; People v. Scott, supra, 91 Cal.App.4th at pp. 1204–1205 [four days before
trial]; People v. Rudd (1998) 63 Cal.App.4th 620, 624–626 [three calendar days before
trial]; People v. Ruiz (1983) 142 Cal.App.3d 780, 789 [six calendar days prior to trial];
People v. Morgan (1980) 101 Cal.App.3d 523, 531 [just before jury selection].)
       Relying chiefly on a footnote in Windham, quoted above, defendant contends his
Faretta motion was nevertheless timely because his “trial clearly had not begun in any
practical sense” and there was no evidence he intended to request a continuance. But our
Supreme Court in Windham made no such fine distinction about when a trial begins. It
held that in order to invoke the constitutionally mandated unconditional right of self-
representation, a defendant in a criminal trial must assert that right within a reasonable
time prior to trial. (Windham, supra, 19 Cal.3d at pp. 127–128.) Defendant readily
admits he made his request after his case had been called to trial.
       We also question defendant’s assertion there was no evidence in the record that he
“was going to request a continuance.” Defendant not only stated an intent to introduce
testimony from 40 to 50 clients and 50 members of Narcotics Anonymous, but he also
made it plain that he would require a private investigator to locate these individuals. That
defendant did not expressly request a continuance does not mean a postponement of trial


                                             11
would not be necessary. We find defendant’s Faretta motion was untimely and therefore
falls into the realm of cases appropriately addressed “to the sound discretion of the trial
court.”
          In exercising its discretion, the trial court should consider (1) the quality of
counsel’s representation, (2) the defendant’s prior proclivity to substitute counsel, (3) the
reasons for the request, (4) the length and stage of the proceedings, and (5) the disruption
or delay which might reasonably be expected to follow the granting of such a motion.
(People v. Barnett (1998) 17 Cal.4th 1044, 1104–1105; People v. Nicholson (1994)
24 Cal.App.4th 584, 591.) A review of these factors in defendant’s case convinces us
that the trial court did not abuse its discretion in denying his belated Faretta request.
          The trial court appropriately weighed the first three factors relating to defense
counsel. After entertaining three separate Marsden hearings at defendant’s behest, the
court determined the “quality of [defense counsel Andrews’] representation” to be
“excellent.” Defendant himself referred to Andrews as a “great” attorney, but insisted
their relationship was “not a good fit.” The second factor, defendant’s proclivity to
substitute counsel, is well supported by the record. Prior to his Faretta motion, defendant
sought to discharge both of his appointed defense attorneys, Attorney Andrews on two
separate occasions. Defendant stated no additional reason for his Faretta request beyond
his frustration with Andrews. The trial court explored these issues with defendant in
some detail in the July 12, 2011 Marsden hearing, and correctly concluded that the
premise for defendant’s motion was groundless.
          The length and the stage of the proceedings also militated against defendant’s
Faretta motion. (People v. Barnett, supra, 17 Cal.4th at pp. 1104–1105.) Pretrial
proceedings took more than three years to complete. During this time, defendant
requested and was granted continuances on six separate occasions. As defendant’s trial at
long last drew near, he twice attempted to discharge Andrews. He offered no justification
for his delay, failing to adequately explain why he waited until the second day of trial to
bring his Faretta motion. In conjunction with defendant’s history of continuance



                                                 12
requests and motions to discharge counsel, the trial court could reasonably surmise the
object of defendant’s Faretta motion was delay.
       As to the final Windham factor, the trial court correctly pointed out the likelihood
that substantial disruption or delay would result from defendant’s last minute self-
representation. Defendant’s desire to pursue many dozens of unnamed and effectively
unknown witnesses presented a logistical nightmare that would surely occasion an
undetermined amount of delay. The trial court noted defendant presented no evidence to
indicate “he would be able to proceed expeditiously with the trial on his own.”
       In our view, the trial court did not abuse its discretion in denying defendant’s
Faretta motion.
B. Vandalism/Substantial Evidence
       In the alternative, defendant contends there is insufficient evidence to support his
felony vandalism conviction.
       In reviewing a criminal conviction challenged on the basis of insufficient
evidence, we “ ‘ “must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” ’ ” (People v. Streeter
(2012) 54 Cal.4th 205, 241.) The court’s role on appeal is limited. “[W]e are bound to
give due deference to the trier of fact and not retry the case ourselves.” (People v.
Sanchez (2003) 113 Cal.App.4th 325, 330.) The relevant inquiry before the court is
whether there is substantial evidence to support the conclusion of the trier of fact, not
whether guilt is established beyond a reasonable doubt. (People v. Mosher (1969)
1 Cal.3d 379, 395.)
       To sustain a conviction for vandalism under section 594, it must be proven that a
defendant (1) maliciously (2) damaged or destroyed (3) any real or personal property not
his or her own. (§ 594, subd. (a).) If the resulting damage exceeds $400, the offense rises
to the level of a felony. (§594, subd. (b)(1).)



                                             13
       Defendant argues there is insufficient evidence in the record to support the jury’s
implicit finding that he slashed the eight tires on the two vehicles belonging to Celoni.
According to defendant, his conviction must be reversed because there “was no direct
evidence it was he who vandalized the tires.” He points to a lack of eyewitness
testimony, fingerprint evidence, or physical evidence connecting him to the incident or to
the scene. Defendant further contends the circumstantial evidence presented at trial
“merely showed he was the ‘most likely suspect.’ ” While we agree there is no direct
evidence, “ ‘Whether the evidence presented at trial is direct or circumstantial, . . . the
relevant inquiry on appeal remains whether any reasonable trier of fact could have found
the defendant guilty beyond a reasonable doubt.’ ” (People v. Bloom (1989) 48 Cal.3d
1194, 1208, italics omitted.)
       The relevant facts are undisputed. Uncontroverted evidence showed, at the time
the vandalism occurred, defendant was engaged in a course of conduct intended to terrify
and intimidate Celoni. Defendant exhibited a particular fixation with Celoni’s vehicles,
beginning with his statements and conduct at the divorce hearing on April 9, 2008. As
testimony revealed, at this hearing, defendant became enraged when the Mercedes SUV
he coowned with Celoni was placed in her exclusive custody. He told the court that all
he wanted was his truck and then stormed out of the courtroom. Two days later he left
Celoni a threatening voicemail which jurors might have reasonably viewed as a reference
to the vehicles: “I’m taking everything from you that you took from me.” On April 14,
Celoni found all eight tires from the two vehicles had been slashed overnight in front of
her home. In a voicemail left the following day, defendant told Celoni, “Now you have
everything,” and in an additional voicemail taunted her, again referring to the SUV:
“You said fuck it, I’m taking the truck . . . and I’m disrespecting you.” On the same day,
defendant approached Celoni’s car while she was at work, leaving photos of Celoni’s
daughter and grandchild on the car and calling her to let her know what he had done.
       As the preceding facts make plain, over the course of this week, defendant’s anger
regarding Celoni and the Mercedes SUV did not abate. Instead, the jury could have
reasonably perceived in defendant’s conduct a pattern of escalating attempts to harm


                                              14
Celoni by leaving frightening verbal messages, vandalizing her property, and menacing
her at her workplace, all culminating in his attempted murder of Celoni at her home
during the early morning hours of April 16, 2008.
       We apply the substantial evidence test. “ ‘[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.’ ”
(People v. Staten (2000) 24 Cal.4th 434, 460, italics omitted.) We must presume in
support of those findings the existence of every fact that one could reasonably deduce
from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
       Even where the evidence is circumstantial, if there is substantial evidence to
support conviction, “ ‘ “ ‘the opinion of the reviewing court that the circumstances might
also be reasonably reconciled with a contrary finding does not warrant a reversal of the
judgment.’ ” ’ ” (People v. Holt (1997) 15 Cal.4th 619, 668.) We may not set aside a
true finding for insufficiency of the evidence unless it appears that under no theory
presented is there sufficient evidence to support it. (See People v. Redmond (1969)
71 Cal.2d 745, 755.)
       We believe this evidence does more than, as defendant contends, “form the basis
for a strong suspicion of [defendant’s] guilt.” We may not be swayed by the absence of
certain forms of evidence, such as eye witness testimony or fingerprints, but instead are
compelled to review the evidence actually presented at trial. (People v. Rodriguez (1999)
20 Cal.4th 1, 12 [appellate court “failed to view that evidence in the light most favorable
to the judgment” when it “focused on what it found lacking in the prosecution’s case”
rather than contrary inferences the jury may have drawn].) We find the testimony of
Celoni and other evidence presented at trial to be of reasonable, credible, and solid value.
In our view, the accumulated circumstances—including defendant’s threatening behavior,
his protracted anger regarding the Mercedes SUV, his violence toward Celoni, and his
readiness to follow through with his threats—sustain a reasonable inference defendant
slashed the tires on Celoni’s vehicles. In finding the evidence sufficient to justify such an
inference, “ ‘ “it is the jury, not the appellate court[,] which must be convinced of the


                                             15
defendant’s guilt beyond a reasonable doubt.” ’ ” (Id. at p. 11.) We affirm the jury’s
conviction on the charge of felony vandalism.
                                   III. DISPOSITION
       The judgment is affirmed.




                                                 _________________________
                                                 Margulies, Acting P.J.


We concur:


_________________________
Banke, J.


_________________________
Sepulveda, J.*




       *
        Retired Associate Justice of the Court of Appeal, First Appellate District
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.


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