People v. Saucedo CA4/2

Filed 10/22/26 P. v. Saucedo CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ord ered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Appellant, E085693 v. (Super.Ct.No. RIF2404922) DAVID MAURICE DEAN SAUCEDO, OPINION Defendant and Appellant. APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Affirmed in part; reversed in part. Garrick Byers, under appointment by the Court of Appeal, for Defendant and Appellant. 1  Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Robin Urbanski and Monique Myers, Deputy Attorneys General, for Plaintiff and Respondent. Defendant and appellant David Saucedo was involved in an argument with his girlfriend during which he smashed her cellular telephone, causing damage to the screen and the frame, rendering most of the functions inoperable. He also choked and pushed her. He was found guilty of felony vandalism due to the jury finding the phone exceeded $400 in value, and was also found guilty of misdemeanor battery. On appeal, defendant contends that insufficient evidence was presented to show that the phone was worth over $400 and the conviction should be reduced to a misdemeanor charge of vandalism. In addition, he claims the trial court improperly imposed the upper term on his felony vandalism conviction based on aggravating factors not found true by the jury as required by Penal Code1 section 1170, subdivision (b), and he did not properly waive his right to a jury trial. The People concede that remand for resentencing is necessary. We find substantial evidence supports defendant’s conviction of felony vandalism, and we reverse his sentence and remand for a new sentencing hearing. 1 All further statutory references are to the Penal Code unless otherwise indicated. 2  FACTUAL AND PROCEDURAL HISTORY A. PROCEDURAL HISTORY Defendant was found guilty of felony vandalism (§ 594, subds (a), (b)(1)), and misdemeanor battery on a spouse or cohabitant (§ 243, subd. (e)(1)). He was additionally found to have suffered four prior serious and violent felony convictions (§667, subds. (c) & (e)(2); § 1170.12, subd. (c)(2)). Two aggravating factors were alleged in the information that (1) defendant had served a prior term in prison; and (2) his prior convictions and sustained petitions in juvenile delinquency proceedings were numerous and increasing in seriousness. In a bifurcated proceeding, the trial court found these two aggravating factors true; they were not tried by the jury. Defendant was sentenced to the upper term of three years on the vandalism count doubled due to the prior strike convictions. B. FACTUAL HISTORY 1. PEOPLE’S CASE-IN-CHIEF Doe and defendant dated between December 2023 and August 2024. In August 2024, Doe was living in Virginia. She was in Riverside on August 21, 2024, because defendant paid for her to fly to where he was staying. On August 21, 2024, during an argument, defendant told Doe that he was going to record her and when she responded that she was going to record him, he grabbed her phone and broke it by throwing it on the floor. He then charged toward her and pushed her down onto the couch. He got on top her and tried to hold her hands down. She tried to push him off her. He eventually got up and turned around. She hit him on the back of 3 his neck. He turned around, picked her up, and threw her to the ground and choked her with both hands while on top of her. She reached for his face and scratched his nose. He eventually got off her and told her he would get her a new phone so she could leave and go back to Virginia. Defendant offered to take her to the T-Mobile store. They drove there but never went inside. She could not use any of the buttons on her broken phone but could use the voice activation to make a phone call to her mother. She could not text or use the internet. She had an iPhone 14 model. After the incident, she had looked at the T- Mobile website or her account and determined that a new iPhone would cost her between $1,200 and $1,400. Doe did not get a new phone until she went back home to Virginia. She had an insurance plan for the phone. She did not have to pay the full value of the phone due to the insurance. She only had to pay $249. Zenia Alberto and Doe had been friends for four years. Alberto had previously met defendant and Doe introduced him as her boyfriend. Doe contacted Alberto the morning of August 21, 2024, and told her that she was in Riverside visiting defendant. Alberto met up with Doe and they had brunch and then Alberto went to work. Later that day, after she got off work, she went to visit Doe where she was staying with defendant. She encountered Doe outside the house; she looked like she had been crying. Doe got into Alberto’s car. They sat in Alberto’s car but eventually Doe got out and got into defendant’s car. Defendant and Doe drove to a T-Mobile store and Alberto followed them. When they arrived, defendant and Doe were arguing in the parking lot about Doe’s phone. Doe walked to Alberto’s car and defendant came with her carrying Doe’s 4 luggage. Defendant offered Doe $200 to take care of the cost of the phone. She observed defendant hand Doe two $100 bills. Doe got into Alberto’s car and was very frustrated. They did not go into the T-Mobile store but returned to defendant’s residence where defendant gave Doe another $200. Alberto took Doe to the airport the following morning. Alberto observed scratches on Doe’s neck, and bruises on her leg. Doe’s cellular telephone was “completely shattered.” It was slightly bent and screen was completely broken. Doe was unable to use the phone normally. Alberto had purchased four iPhones, and she paid between $800 and $1,200 for those iPhones. They were more than $400 even with a monthly phone plan. On August 21, 2024, Riverside Police Officer Michael Hinman was working patrol in Riverside. As he was driving around the city in his marked patrol car, he came upon Doe, who flagged him down. She was with Alberto. Doe appeared to be upset and appeared paranoid, looking over her shoulder several times. She was periodically crying. Doe had a cellular telephone with a “shattered” screen. A photograph of the front and back of Doe’s phone was shown to the jury. Doe had an abrasion on her left elbow and one on each side of her neck. There was swelling and redness around these abrasions. Officer Hinman investigated the potential value of the phone. He searched the T-Mobile website for the average purchase price of the damaged iPhone she possessed and the approximate value was $730. 5  Based on his investigation and speaking with Doe, Officer Hinman went to find defendant. He found defendant at a residence on Redlands Court in Riverside. He took him into custody. Defendant had an injury to his face. Defendant was interviewed formally at the station. Officer Hinman had a body- worn camera that recorded his encounter with defendant. The recording of the interview was played for the jury. When Officer Hinman first encountered defendant at the Redlands Drive home, Officer Hinman stated he was surprised to see defendant. Defendant stated that he thought about leaving but decided to stay. He insisted he had no reason to run. Officer Hinman advised defendant he was going to conduct a more formal interview at the police station. Defendant stated he had video cameras in his house, and everything had been recorded. He claimed that Doe had come to his house four times to get money from him. As they were driving to the police station, defendant made several statements to Officer Hinman. Defendant claimed he wanted Doe out of his house. She got mad at him because he wanted her to leave because she was a “bum.” During the formal interview at the police station, defendant stated that he and Doe had been dating for seven months. She was just visiting him at his house, and he decided it was time for her to leave. He insisted she would not leave and was living off of him. He claimed to have grabbed her arm to get her to leave the house. He was unsure of the injury on her neck; maybe he grabbed it to get her out of the house. When Office Hinman told defendant that she seemed scared, defendant insisted it was because she knew he was now going to break up with her. He gave her money in order to get her to 6 go away. When asked about Doe’s phone, defendant responded “I broke the phone, bro.” He broke it because she was trying to record him. He offered to pay for the phone. Riverside County Sheriff’s Investigator Samantha Shaw was an expert in domestic violence; she testified regarding the cycle of domestic violence and how it impacted a victim’s reporting of incidents. 2. DEFENDANT’S EVIDENCE Defendant presented no evidence. DISCUSSION A. SUFFICIENT EVIDENCE OF FELONY VANDALISM Defendant contends there was insufficient evidence presented to prove that the cellular telephone that was destroyed by him had a value over $400. He maintains the record does not contain specific facts that the amount of damage the vandalism caused reached the $400 threshold as required by section 594, subdivision (b)(1). “ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘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.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] 7 ‘This standard applies whether direct or circumstantial evidence is involved.’ ” (People v. Avila (2009) 46 Cal.4th 680, 701.) Section 594 provides, “(a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: [¶] (1) Defaces with graffiti or other inscribed material. [¶] (2) Damages. [¶] (3) Destroys.” Subdivision (b)(1) of section 594 provides, “[i]f the amount of defacement, damage, or destruction is four hundred dollars ($400) or more,” it is considered a felony. Section 594 “does not itself specify a method for proving the amount of property damage in a vandalism prosecution.” (In re Kyle T. (2017) 9 Cal.App.5th 707, 713 (Kyle T).) In a case involving damage caused by graffiti, the court calculated the amount of defacement, damage, or destruction as the actual or estimated cost of repair. (Id. at pp. 713-714). Other courts have relied on the cost of “repairing or replacing” the cost of the property. (In re A.W. (2019) 39 Cal.App.5th 941, 950.) Further, there is no authority supporting that defendant is entitled to a windfall on the damage done to property that the victim was farsighted enough to purchase protective insurance on. (See In re Brittany L. (2002) 99 Cal.App.4th 1381, 1387-1388 [in assessing restitution fine, the defendant is not entitled to a windfall due to the victim purchasing insurance].) Here, Doe testified that the cellular telephone was inoperable after being thrown to the ground by defendant. It was shattered on the front and bent. She could not text, check the internet or make phone calls other than by voice activation. She had checked either her account or the website for T-Mobile and determined the cost of the iPhone 14 8 model would cost between $1,000 and $1,400. She replaced the phone but had insurance and only had to pay $249, while insurance paid the remaining balance. From that evidence, the jury could have reasonably concluded that the amount of damage or destruction to the cellular telephone, based on the estimated purchase price to replace the cellular telephone, exceeded $400. (In re A.W., supra, 39 Cal.App.5th at p. 950.) Defendant relies on Kyle T., supra, 9 Cal.App.5th 707, to support his claim that the value of the cellular telephone was not established by the evidence. In that case, a minor was alleged to have committed one count of felony vandalism based on graffiti defacement. At the juvenile court proceeding, an officer testified about the amount of damages, based on a single-page “ ‘graffiti removal cost list’ ” prepared by an unknown author, that summarized the costs of removing graffiti in that area, but without reference to the specific acts committed by the minor. (Id. at pp. 710-711.) The Kyle T. court held the People failed to present substantial evidence that was specific to the minor’s acts of vandalism to establish that the actual amount of damage caused by the minor’s act reached the felony threshold of $400. (Id. at pp. 709, 713-714.) The court noted, “The most obvious way for the People to prove that [the minor] committed felony vandalism would have been to introduce at the adjudication hearing an invoice setting forth the actual cost of repairs to the two properties. No such evidence was introduced.” (Id. at pp. 713-714.) Here, the value of the cellular telephone was provided by Doe. She noted she determined the iPhone 14 would cost between $1,000 and $1,400 to replace by either looking at her account or the T-Mobile website. She only had to pay $249 because she 9 purchased insurance but defendant is not entitled to this windfall. The insurance company paid the remaining amount, and the total of what Doe paid and what the insurance paid was clearly over $400. This case is unlike the graffiti removal in Kyle T., which required a determination of the cost of materials, the size of the graffiti, the labor and other factors in determining value not just an average cost of graffiti removal but the actual cost of removing the graffiti. (Kyle T., supra, 9 Cal.App.5th at p. 714.) Further, Kyle T. did not state that an invoice was necessary to prove value. A cellular telephone is easily valued based on the cost obtained from the cellular telephone company. Doe testified to the value, which far exceeded $400, and “unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (People v. Jones (2013) 57 Cal.4th 899, 963.) We also note that the prosecutor argued to the jurors that they did not leave their common sense at the door, and “we all know that a new iPhone is worth $400 or more.” A cellular telephone is an object that is owned by practically every person and it is common knowledge that an iPhone costs over $400. In Ferrari v. Mambretti (1943) 58 Cal.App.2d 318, the court expressed that the trier of fact could fix the value of damages for services rendered if it actually possessed common knowledge of the value of such services. (Id. at p. 328; see also Lundberg v. Katz (1941) 44 Cal.App.2d 38, 46 [“If the trier of the facts possesses the common knowledge of the value of such services, their reasonable value may be determined without the aid of opinion testimony”]) Here, it was common knowledge that an iPhone costs over $400. The evidence supported that the 10 cellular telephone was not operable and needed to be replaced. Doe had insurance on her iPhone 14, and only had to pay out of pocket $249, but the value of the cellular telephone exceeded $400, and defendant is not entitled to the windfall that Doe had insurance. Defendant’s felony vandalism conviction was supported by substantial evidence. B. UPPER TERM SENTENCE Defendant contends the trial court erred by imposing the upper term sentence on his conviction of vandalism because it relied on aggravating factors not properly found true beyond a reasonable doubt by a jury. Defendant claims the error cannot be proven harmless beyond a reasonable doubt as both aggravating factors—defendant served a prior prison term and his prior convictions were numerous and of increasing seriousness—should have been tried to the jury and it cannot be determined whether the jury would have found both aggravating factors true. Defendant requests that the matter be remanded for resentencing and the trial court instructed to only rely on those properly established aggravating factors at resentencing. The People concede that remand for resentencing is necessary based on the jury not being presented with the aggravating factors, and finding them true beyond a reasonable doubt. The matter should be remanded and the People given the opportunity to retry the aggravating factors. 1. ADDITIONAL FACTUAL HISTORY During a break in the proceedings, the trial court asked defendant’s counsel if defendant wanted a jury to decide his prior convictions if he was found guilty. The trial court asked, “What would your client like to do?” Defendant’s counsel responded, “He 11 would like a bifurcated trial.” The trial stated, “So the Court to decide that?” Defendant’s counsel responded, “Yes, your Honor.” At the end of evidence, the trial court stated that after the jury reached a decision on the charges, “[w]e will proceed directly to the aggravating factors. There are two. And the Court has been listening to the evidence.” It also advised the prosecutor it should be prepared to immediately prove the strike priors. Defendant’s counsel clarified that if there was a conviction on the felony vandalism count that they would immediately go into the factors in aggravation. The trial court responded, “Yes.” Defendant’s counsel clarified also that they then would proceed with the bifurcated proceedings on the prior convictions. The trial court responded, “Yes. Generally, on the aggravating factors, because the Court has heard the evidence, both of you would submit to the Court. Wouldn’t be anybody you would be calling. I’ve had that. And then, the Court makes the decision.” The parties then discussed that the prosecutor intended to prove the priors through certified documents and by not calling any witnesses. After the verdicts were taken and the jury was excused, the trial court immediately proceeded to the trial on the strike priors. The prosecutor stated he had certified conviction records from the two robbery convictions in Orange County on January 19, 2017. He had a certified CLETS record for the other two prior strike convictions of robbery suffered on August 31, 2018. Defendant’s counsel objected to the CLETS record not being a certified plea form but it was admitted by the trial court. The trial court found the four prior convictions true pursuant to sections 667, subdivisions (c) through (e)(2), and 1170.12, subdivision (c)(2). 12  The trial court then moved to the aggravating factors, of which it stated there were two. The trial court asked either party if they wanted to be heard on the factors and both parties submitted. The trial court found true that defendant had served a prior prison term within the meaning of California Rules of Court rule 4.421(b)(3) and it found beyond a reasonable doubt that the prior convictions as an adult for defendant were numerous and of increasing seriousness within the meaning of California Rules of Court rule 4.421 (b)(2). At sentencing, the trial court noted that two aggravating factors had been pled and proven. It found no circumstances in mitigation. The trial court ordered, after balancing the aggravating and mitigating factors, that the upper term of three years on the vandalism conviction was appropriate. 2. AGGRAVATING FACTORS RELIED ON BY THE TRIAL COURT On “January 1, 2022, the Legislature … amended section 1170 to provide that the trial court ‘shall,’ in its discretion impose a sentence ‘not to exceed the middle term’ [citation] except in the following circumstance: ‘The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of’ an upper term sentence, and ‘the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.’ [Citations.] Notwithstanding these provisions, the court ‘may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without 13 submitting the prior convictions to a jury.’ ” (People v. Lynch (2024) 16 Cal.5th 730, 748, fn. omitted.) The California Supreme Court recently decided People v. Wiley (2025) 17 Cal.5th 1069 (Wiley), in which it found that aggravating factors must be found by a jury, including the increasing seriousness of prior convictions and unsatisfactory performance on probation, to be true beyond a reasonable doubt, in order to support the imposition of the upper term. (Id. at pp. 1082, 1084-1085.) In making its decision, it noted that the United States Supreme Court in Erlinger v. United States (2024) 602 U.S. 821, held that “ ‘Virtually “any fact” that “ ‘increase[s] the prescribed range of penalties to which a criminal defendant is exposed’ ” must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).’ ” (Wiley, at pp. 1080-1081, conc. opn. of Kruger, J., citing to Erlinger, at p. 834,) The Wiley court set forth the procedure for finding the aggravating factors as follows, “Defendants may assert the right to a jury trial, may waive jury in favor of a court trial, or may waive trial altogether. Subject to the standard rules of evidence both parties may stipulate to the admission of probation reports or other evidence bearing on a defendant’s social and educational history, as well as other information relevant to sentencing, including criminal history. The burden is on the People to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence. If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose, keeping in mind the statutory 14 limits on upward departures from the midterm and the requirement for stating its reasons on the record.” (Wiley, supra, 17 Cal.5th at p. 1086.) The trial court relied on several aggravating factors in reaching its decision on the upper term. “[T]he facts supporting every aggravating circumstance upon which the trial court relies to ‘justify’ imposition of the upper term must be properly proven as the statute requires.” (People v. Lynch, supra, 16 Cal.5th at p. 757.) The finding regarding the prior convictions as an adult for defendant were numerous and of increasing seriousness must be “found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial.” (Wiley, supra, 17 Cal.5th at p. 1082-1084.) Same for the determination of whether a defendant has served a prior prison term. (Id. at p. 1085 [other than the fact of the prior conviction, a defendant is entitled to a jury determination on any other aggravating factors that expose him to a sentence more serious than the midterm sentence].) The People concede, and the record supports, that defendant never waived his right to a jury trial on the aggravating factors. The two aggravating factors should have been tried to the jury but the jury was excused after reaching its decision on the vandalism and battery charges, and the trial court found the aggravating factors were true. This was error. “ ‘[A] sentence imposed under … section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved 15 true in compliance with the current statute.’ [Citations.] Lack of a jury trial is not harmless under Chapman [v. California (1967) 386 U.S. 18] if ‘the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.” (Wiley, supra, 17 Cal.5th at p. 1087.) The People concede the error was not harmless as it cannot be determined whether the jury would have found the aggravating factors true. We agree. In assessing the evidence of the aggravating factor of numerous and of increasing seriousness of his prior convictions, defendant had four prior convictions for robbery in 2017 and 2018. Pursuant to the probation report, he had convictions in 2024 for Vehicle Code section 23123 violations (using a cellular telephone while driving), which resulted in fines. He also had a case pending from December 30, 2024, related to this case involving defendant contacting Doe, in violation of sections 136.1, subdivision (b)(1) (attempting to dissuade a witness), and 166, subdivision (c)(1) (violating a restraining order). The instant case involved convictions for vandalism and misdemeanor battery. The jury could have found the aggravating factor not true “based on the totality” of defendant’s criminal conduct. (Wiley, supra, 17 Cal.5th at p. 1090.) The trial court relied on the above factor in addition to whether defendant served a prior prison term. This court need not determine if the jury would have found true the fact that he served a prior prison term as all factors must be found true beyond a reasonable doubt to justify the imposition of the upper term. (Wiley, supra, 17 Cal.5th at p. 1087.) We will order remand to the trial court for the People to retry the aggravating factors. 16  DISPOSITION The judgment of conviction is affirmed. We reverse and vacate defendant’s sentence to allow the People an opportunity to retry the aggravating factors and for resentencing in accordance with amended section 1170, subdivision (b). NOT TO BE PUBLISHED IN OFFICIAL REPORTS. MILLER J. We concur: RAMIREZ P. J. CODRINGTON J. 17