People v. Molina CA1/4

Filed 8/17/20 P. v. Molina CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A157412 v. TONY MOLINA, JR., (Contra Costa County Super. Ct. No. 5-171052-4) Defendant and Appellant.

Tony Molina, Jr., appeals his conviction of felony vandalism. (Pen. Code § 594, subd. (a).)1 He contends that the evidence is insufficient to prove that the amount of damage exceeded $400, as required to make the offense a felony; that the trial court committed evidentiary and instructional errors bearing on the “amount of damage” issue; and that the court erred in failing to instruct sua sponte on vehicle tampering (Veh. Code, § 10852) as a lesser included offense of vandalism. We conclude that the evidence was sufficient to support the conviction, and that the court was not required, sua sponte, to instruct the jury on the meaning of the statutory phrase “amount of damage” or on vehicle tampering as a lesser included offense. We shall therefore affirm the conviction.

Factual and Procedural History An initial complaint alleged that in June 2016, Molina violated protective and stay-away orders regarding his then-girlfriend Veronica Barrera Hurtado-Fuentes (Hurtado), assaulted her, and vandalized her car, causing less than $400 in damages.

1 All statutory references are to the Penal Code unless otherwise specified.

1

In September 2016, according to Hurtado’s testimony, she and Molina were back together, and they argued at their apartment. When Molina took a shower, Hurtado left. She drove in her car to a friend’s house. Molina followed in his car and, when Hurtado reached her friend’s house, he pulled up next to her before she left her car. Molina tried unsuccessfully to pull open her locked car door. He then ripped off one of her car’s windshield wipers, used it to try to break her window, and kicked the car’s side mirrors. Hurtado drove away, but Molina got back in his car, pulled in front of her, and slammed on his brakes, causing her car to hit his, which damaged her front bumper. Hurtado then managed to drive into the friend’s yard, get out of her car, and run inside. Hurtado had her car repaired. She did not recall the exact repair cost, but testified that she paid a $500 deductible and that the total bill exceeded $2,000. In November 2016, a Pittsburg police officer brought photographs of the car’s damaged side mirror, front bumper, and driver’s side door to Russo Auto Body in Pittsburg to obtain an estimate of the cost to repair the damage. Based solely on the photos, Russo employee Zackary Lorenzo prepared a written estimate of the repair cost. In January 2017, the district attorney filed an amended complaint against Molina adding two new counts based on the September 2016 incident, including the felony vandalism count now before us. Before trial, Molina moved in limine to exclude both the proposed testimony of Zackary Lorenzo about the estimated cost to repair the car and the written estimate Lorenzo had prepared at police request. The court excluded the document but ruled that Lorenzo could testify to his opinion of the repair cost. Lorenzo testified that he had worked at Russo Auto Body for three years, repaired “a couple thousand” cars, and been certified by “the industry standard . . . in collision repair training.” He reviewed three photographs of the damage to the car and testified that he had repaired such damage on other occasions. He opined that both mirrors and a door handle would “need to be replaced,” the front bumper “would need to be painted to fix the damage,” and the door had a scratch. Based on his review of the photos, he estimated the total repair cost at “around [$]3,000.” He estimated that the parts alone for the mirrors