People v. Bonilla

29 Cal.App.5th 649

240 Cal.Rptr.3d 560

The PEOPLE, Plaintiff and Respondent,

v.Sandra Alicia BONILLA et al., Defendants and Appellants.

C082144

Court of Appeal, Third District, California.

Filed November 29, 2018

Cyrus Zal, Retained Counsel, Folsom, for Defendants and Appellants.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.

Robie, J.Defendants Sandra Bonilla, Guillermo Bonilla Chirinos, and Juan Bonilla Chirinos¹ appeal from jury verdicts finding each of them guilty of felony vandalism. Defendants argue they received ineffective assistance of counsel² because their trial counsel: (1) failed to raise Commercial Code section 9609 and other statutes as a defense to the vandalism charge; (2) failed to clarify the vandalism jury instruction after the jury asked which items were part of the charge; and (3) should have introduced Guillermo’s telephone records to support Guillermo’s credibility at trial. They further argue the trial court abused its discretion by denying their: (1) request for a new trial based on newly discovered evidence; and (2) motion requesting the trial court reduce their felony convictions to misdemeanors and not impose custody time. Finding no merit in these contentions, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendants’ arguments on appeal do not require a detailed recitation of the evidence or of the trial. We summarize the background facts here and incorporate any facts relevant to their contentions in the pertinent parts of the Discussion.

Sandra’s April 2013 payment to Travis Credit Union for her car loan was returned due to insufficient funds. The credit union left three messages between May 7 and May 9, notifying Sandra she was delinquent. In fact, the credit union’s records erroneously showed the payment was 56 to 59 days late, when it was actually 26 days late. Had the system correctly identified the payment was 26 days late, the credit union would not have proceeded with repossession. However, on May 10, the credit union ordered Absolute Adjustment to repossess the car and left Sandra another message.

Absolute Adjustment sent Daniel Thomas to repossess the car.³ Thomas arrived at the house around 8:30 a.m. or 9:00 a.m., backed his repossession truck up to Sandra’s car, and used the boom on his truck to lift the back of the car in the air. He then attached dollies (a device that acts as a brace around the tires to allow the tires to roll) to the car’s front wheels and secured the car to his truck with four ratcheted straps. Although Thomas could have left with the car, Thomas walked to the house and knocked on the front door to give Sandra an opportunity to remove her personal property from the car and to gain access to the car to tie the steering wheel down. When no one answered, Thomas returned to his truck.

Guillermo opened the front door and approached Thomas asking, "[w]hat’s going on?" Thomas replied the car was being repossessed for lack of payment. Sandra joined the conversation while Guillermo argued with Thomas. Sandra also protested the repossession. When Guillermo told Thomas, "you’re not taking that vehicle," Thomas called the police. While Thomas was waiting for the police to arrive, Juan joined Sandra and Guillermo, and Juan and Guillermo started to remove the straps from the car. Thomas raised the car higher in the air and pulled on the strap Guillermo was trying to remove. In the process of pulling on the strap, Thomas bumped into Guillermo’s shoulder. Juan walked over, put Thomas in a chokehold, and threw him off the strap away from the car.

Thomas got into his truck and spoke with the police dispatcher.⁴ Juan removed one of the straps and Guillermo cut another with pruning shears. Juan and Guillermo then removed the dollies from the front tires and Sandra climbed into the car. Sandra drove the car off the boom, slamming the car about three feet onto the ground. Thomas lowered the boom to lift the car again, but was unable to do so because Juan was standing on the boom. Sandra drove over the boom and the dollies and then drove away.

Thomas drove down the street and around the corner to wait for the police. He did not take the dollies because he did not feel safe getting out of the truck. An officer arrived about ten minutes later and followed Thomas back to the house. The dollies were no longer in front of the house and were never recovered. No one responded when the police knocked on the front door to the house.

A jury found Guillermo, Juan, and Sandra guilty of vandalism and found the damages of the vandalism were in the amount of $400 or more. Defendants appeal.

DISCUSSION

I

Trial Counsel Was Not Ineffective

"To show ineffective assistance of counsel, defendant has the burden of proving that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different." ( People v. Kelly (1992) 1 Cal.4th 495, 519-520, 3 Cal.Rptr.2d 677, 822 P.2d 385.) " ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ " ( People v. Bolin (1998) 18 Cal.4th 297, 333, 75 Cal.Rptr.2d 412, 956 P.2d 374.)

We presume counsel’s conduct fell within the "wide range of reasonable professional assistance." ( People v. Maury (2003) 30 Cal.4th 342, 389, 133 Cal.Rptr.2d 561, 68 P.3d 1.) Our review is limited to the record on appeal and we must reject a claim of ineffective assistance "if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation." ( People v. Burgener (2003) 29 Cal.4th 833, 880, 129 Cal.Rptr.2d 747, 62 P.3d 1.) If "it is easier to dispose of an ineffectiveness claim on the ground of lack of prejudice ... that course should be followed." ( Strickland v. Washington (1984) 466 U.S. 668, 697, 104 S.Ct. 2052, 2056, 80 L.Ed.2d 674, 699.)

Defendants have not met their burden of showing ineffective assistance of counsel on any of the grounds raised.

A

None Of The Statutes Cited By Defendants Provides A Defense To Felony Vandalism

Defendants’ primary argument is that trial counsel was ineffective for failing to raise Commercial Code section 9609 as a defense at trial. Commercial Code section 9609, subdivisions (a)(1) and (b)(2), provide that, "[a]fter default, a secured party may ... [¶] [t]ake possession of the collateral [¶] ... [¶] [w]ithout judicial process, if it proceeds without breach of the peace." Defendants argue "[a]s soon as [defendants] strongly protested the attempted repossession and a breach of the peace resulted, Commercial Code § 9609required Thomas to stop proceeding with the repossession, and any further attempts by Thomas to proceed with the repossession at that point became unlawful acts by Thomas, and Thomas proceeded at his own risk to himself and to his property." Defendants maintain Commercial Code section 9609 thus "provides a complete defense to their convictions for felony vandalism, warranting the outright dismissal of those convictions."

The People argue defendants’ claim is more appropriately addressed in a habeas corpus proceeding because trial counsel’s reasons for not pursuing the defense is not reflected in the record, and the code provision is inapplicable because the repossession was completed, as defined in Business and Professions Code section 7507.12,⁵ before Thomas contacted defendants. We conclude Commercial Code section 9609 has no application to the criminal charge of felony vandalism at issue here. As such, we do not address the parties’ remaining contentions.

We note the Legislature did not expressly provide that a violation of Commercial Code section 9609 is a defense to a criminal charge of vandalism under Penal Code section 594. In the absence of express statutory language, we find no basis to read in such a defense and defendants cite no authority for doing so. (See People v. Berry (1991) 1 Cal.App.4th 778, 788, 2 Cal.Rptr.2d 416 [finding civil statute inapplicable to criminal case because "nothing in th[e] civil statute suggest[ed] that it creates a defense in a criminal action"].) We further note the remedies for a violation of Commercial Code section 9609 are delineated in Commercial Code section 9625. Defendants’ conduct to retrieve the car was conspicuously not one of the lawful remedies listed in the Commercial Code.

Even if Thomas’s conduct violated the Commercial Code provision, however, defendants cite no authority permitting them to commit a crime in response to an unsanctioned repossession that results in a breach of the peace. By defendants’ rationale, a person cannot be held criminally responsible for his or her malicious acts when the acts are committed in response to a violation of a civil statute. This is not the law. The conduct of which defendants complain was simply irrelevant to their criminal liability for their own conduct. "It has long been the rule in criminal prosecutions that the contributory negligence of the victim is not a defense." ( People v. Armitage (1987) 194 Cal.App.3d 405, 420, 239 Cal.Rptr. 515 ; see also People v. Harris (1975) 52 Cal.App.3d 419, 427, 125 Cal.Rptr. 40 ["A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause"].)

For the same reasons, Civil Code section 1714, subdivision (a) (everyone is responsible for injury caused to another unless that person "brought the injury upon himself or herself") and Civil Code section 1667 (dealing with unlawful contracts) are inapplicable to the criminal felony vandalism charges at issue here.

Defendants’ reliance on Penal Code section 415 is also...