People v. Tenerelli

THE PEOPLE, Plaintiff and Respondent, v. PATRICK ANDREW TENERELLI, Defendant and Appellant.

C091332

California Court of Appeals, Third District, Shasta

April 21, 2022

NOT TO BE PUBLISHED

Super Ct. No. 18F6279.

MAURO Acting P. J.

A jury convicted defendant Patrick Andrew Tenerelli of contracting without a license in a declared disaster area in violation of Business and Professions Code section 7028.16.^[1] The trial court sentenced defendant to two years eight months in state prison.

Defendant now contends (1) the trial court should have instructed the jury that under section 7053, an employee does not need a contractor's license, and defense counsel was ineffective in failing to object to the instruction actually given and failing to request an instruction on section 7053; (2) the trial court erred in excluding evidence that defendant said he was not a licensed contractor; and (3) the trial court erred in instructing the jury with CALCRIM No. 358 [evidence of defendant's statements].

Finding no merit in defendant's contentions, we will affirm the judgment.

BACKGROUND

Former Governor Edmund G. Brown, Jr., declared a state of emergency in Shasta County due to the Carr fire in July 2018. In September 2018, California Contractors State License Board enforcement representative James Spence, along with other Contractors State License Board enforcement representatives and investigators from the Shasta County District Attorney's Office, conducted an undercover operation to apprehend unlicensed individuals advertising to do work in Shasta County that would require a contractor's license. Spence found a business card for Pat's Painting and Handyman services at a paint store in Redding in the course of locating advertisements by unlicensed contractors. The card had a contractor's license number that had been revoked.

Posing as the owner of a property on Harlan Drive in Redding, Spence called the telephone number on the business card and discussed with defendant a project to replace a metal fence damaged in the Carr fire. Defendant did not identify himself as a licensed contractor, but said he could do the work. His contractor's license was revoked in 2016. He showed up at the Harlan Drive property with Gilfred Brown.

Spence showed defendant the fire-damaged fence and said he wanted the fence removed and replaced with a wood fence. Defendant again said he could do that work. When Spence asked for a price, defendant and Brown called a lumber supply company to get pricing. According to Spence, defendant said he could do the job for $4, 292. Other members of Spence's team monitored the interaction between Spence and defendant through a wire on Spence's person, and confirmed that defendant offered to do the fence work for an amount exceeding $500. Spence testified that defendant did not claim he was a licensed contractor. But defendant also did not offer to do the work as Spence's employee, did not say he would be "the person responsible" and work for a salary, and did not offer to work at an hourly rate.

When Spence gave a prearranged signal to notify the other members of his team that he had received a bid exceeding $500 defendant was placed under arrest.

The People charged defendant with contracting without a license in a declared disaster area. An amended information included a Penal Code section 1170.12 prior strike allegation. Defendant's first trial ended with a hung jury.

Unlike at the first trial, defendant testified at his second trial. He admitted that the business card for Pat's Painting and Handyman services belonged to him, but he said the card had been posted before his license was revoked. Defendant said he received a call in September 2018 about some work; he told the person he charged $30 an hour but the price was negotiable. He said he went to a Harlan Drive address with a partner, Spence showed him what needed to be done, and defendant told Spence defendant could probably replace the fence. Defendant and Brown measured the length of the fence to be replaced. It was about 200 feet. Defendant called a lumber supplier to ask about the cost of materials. Defendant testified he handed his phone to Spence so that Spence could speak with the supplier, and he told Spence he would charge $25 an hour. In contrast with Spence's testimony defendant claimed he could not give Spence a price because he did not know how long the job would take.

The jury convicted defendant of contracting without a license in a declared disaster area. In a bifurcated proceeding the trial court found that defendant had previously been convicted of violating Penal Code section 246.3 (discharge of a firearm with gross negligence) and that the Penal Code section 1170.12 prior strike conviction allegation was true. The trial court denied defendant's motion to dismiss the prior strike pursuant to Penal Code section 1385 and imposed a state prison term of two years eight months.

Additional background facts will be recounted in the Discussion as relevant to the contentions on appeal.

DISCUSSION

I

Defendant contends the trial court should have instructed the jury that under section 7053, an employee does not need a contractor's license, and defense counsel was ineffective in failing to object to the instruction actually given and failing to request an instruction on section 7053. Because he asserts ineffective assistance, and because we must determine in any event whether the claimed error affected his substantial rights (People v. Jimenez (2016) 246 Cal.App.4th 726, 730 (Jimenez)), we will address the merits.

A

The trial court instructed the jury as follows: "[D]efendant is charged in Count 1 with contracting without a license in a declared disaster area, in violation of Business and Professions Code section 7028.16. To prove that the defendant is guilty of this crime, the People must prove that one, the defendant engaged in the business of or acted in the capacity of a contractor. Two, in connection with the offer . . . of repairs to a residential or nonresidential structure for damage caused by a natural disaster. Three, for which a state of emergency was proclaimed by the Governor pursuant to section 8625 of the Government Code. And four, at the time the defendant did not possess a valid contractor's license."

The trial court also told the jury, consistent with section 7026 that the term "contractor" meant "any person who undertakes to or offers to undertake to or purports to have the capacity to undertake or submits a bid to construct, alter, repair, add to subtract from, improve, move, wreck or demolish any building, highway, road, parking facility, railroad, excavation or other structure, project, development or improvement . . . ." In addition, the trial court defined "structure, project, development or improvement" to include all sorts of structures which become part of the realty, as that phrase was defined in Bowline v. Gries (1950) 97 Cal.App.2d 741, 743, disapproved on other grounds in Fraenkel v. Bank of America National Trust & Savings Assoc. (1953) 40 Cal.2d 845, 848. The trial court instructed that a fencing contractor constructs, erects, alters or repairs all types of fences. That definition is drawn from the regulations classifying specialty contractors. (Cal Code Regs., tit. 16, § 832.13.) The trial court further instructed, pursuant to sections 7028 and 7048, as follows: "In California, anyone who contracts to perform work on a project valued at $500 or more in combined labor and material costs, must hold a current valid license issued by the Contractor State License Board. [¶] If the unlicensed person engaging in the business of or acting in the capacity of a contractor has agreed to furnish materials and labor on an hourly basis, the contract price for the purposes of this section means the aggregate sum of the cost of materials and labor furnished and the cost of completing the work to be performed."

Notwithstanding the foregoing instructions, defendant contends the trial court should have instructed the jury on how to determine whether a person is engaging in the business of a contractor or working for wages as an employee.

" 'In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case.'" (People v. Anderson (2011) 51 Cal.4th 989, 996 (Anderson).) That duty extends to instructions on the elements of the charged offense and the defendant's theory of the case. (Ibid.; People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.)

The purpose of the Contractors State License Law (§ 7000 et al.) "is to protect the public from incompetence and dishonesty in those who provide building and construction services. The licensing requirements provide minimal assurance that all persons offering such services have the requisite skill and character, understand applicable local laws and codes, and know the rudiments of administering a contracting business." (Contractors Labor Pool, Inc. v. Westway Contractors, Inc. (1997) 53 Cal.App.4th 152, 165; see also Assem. Floor Analysis of Assembly Bill No. 370 (2009-2010 Reg. Sess.) as amended Mar. 23, 2009, p. 2 [commenting that in addition to the financial losses they cause consumers, unlicensed contractors generally do not obtain insurance, leaving their workers without any protection and homeowners potentially liable, and unlicensed contractors drive down wages and undercut legitimate businesses].) It is unlawful for a person to engage in the business or act in the capacity of a contractor, without having a license therefor, in connection with the offer of improvements to a residential structure or property for...