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Filed 3/22/23 P. v. Aguirre 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ordered 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 Respondent,

v.

RICARDO AGUIRRE,

Defendant and Appellant.

E077587

(Super.Ct.Nos. INF2000441 &

(INF1900624 & INF2001334)

OPINION

APPEAL from the Superior Court of Riverside County. Dale R. Wells, Judge. 

Affirmed with directions.

William G. Holzer, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and 

Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found defendant and appellant Ricardo Aguirre guilty of felony vandalism

(Pen. Code, § 594, subd. (b)(1))

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, in Riverside County Superior Court case No. 

INF2001334. In that case, the trial court impliedly found true the allegation that 

defendant suffered a prior strike conviction. (§§ 667, subds. (c) & (e)(1) & 1170.12, 

subd. (c)(1).) The trial court sentenced defendant to prison for a term of four years. 

Due to the foregoing vandalism conviction, the trial court found defendant 

violated his probation in Riverside County Superior Court case No. INF2000441 and 

sentenced defendant to a concurrent term of two years. Also due to the vandalism 

conviction, the trial court found defendant violated his probation in Riverside County 

Superior Court case No. INF1900624 and sentenced defendant to a concurrent term of 

three years.

Defendant raises nine issues on appeal. First, defendant contends substantial 

evidence does not support the finding that he caused $400 or more of damage. (§ 594, 

subd. (b)(1).) Second, defendant asserts the $400 threshold elevating vandalism to a

wobbler offense (§ 594, subd. (b)(1)) violates equal protection because vandals do not

have the same $950 wobbler threshold as thieves (§§ 486, 487, subd. (a), 488, 489, 

subd. (c)(1)). Third, defendant contends the trial court erred by not instructing the jury 

that, in order to aggregate the amount of damage caused by separate acts of vandalism, 

the jury must first find that the separate acts were part of a single intention and plan. 

1

 All further statutory references are to the Penal Code unless otherwise 

indicated
3

Fourth, defendant asserts the trial court erred by allowing propensity evidence to 

be presented to the jury. Fifth, defendant contends the trial court erred by not sua 

sponte giving the jury a limiting instruction concerning propensity evidence 

(CALCRIM No. 375). Sixth, defendant asserts the trial court erred by not excluding 

hearsay. Seventh, defendant contends the trial court erred by not making an express 

finding on the prior strike conviction allegation. Eighth, defendant asserts that when the 

foregoing alleged errors are cumulated they amount to a denial of due process. Ninth, 

defendant contends the abstracts of judgment in the probation violation cases need to be 

amended. We affirm with directions. 

FACTUAL AND PROCEDURAL HISTORY

Defendant is a neighbor of the victim’s sister (Sister). On August 20, 2020, at 

approximately 10:30 a.m., the victim, who is an adult male, was babysitting at Sister’s 

house (the House). The front door of the House was closed and locked. Defendant 

broke a front window of the House. Defendant then kicked the front door of the House 

approximately five times. When the door swung open, defendant “yell[ed] random 

profanity, [he] didn’t make sense.” As the victim moved toward the front door, 

defendant backed away toward the middle of the front yard. The victim told defendant 

“to get out of the yard” and called 911. Defendant returned to his home.

The front door and front window of the House were “in good working order”

prior to defendant’s actions. Additionally, the front door did not have scratches on it. 

Defendant’s actions caused the door to be “hard to close.” Defendant’s father (Father) 

offered to have the window and door repaired or replaced. 
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Father spoke to one repair person to determine if the door could be repaired, 

rather than replaced, but it was “damaged beyond repair.” Father had the damaged door 

replaced with a new door from Home Depot. Father only went to Home Depot to shop 

for doors and explained that “[a]ll doors are very expensive right now,” i.e., during the 

pandemic. The new door cost $270.79. Father delivered the door himself, in his truck. 

Father spent $90 on labor for a person to replace the door.

The window was repaired by the Coachella Valley Glass Company. According 

to Sister, after the repair, the window looked the same as it did before it was broken, i.e, 

it was not in better condition after being repaired. The window repair cost $162.2 In 

total, Father spent $522.79 to remedy the damage caused by defendant.

DISCUSSION

A. AMOUNT OF DAMAGE

Defendant contends there is not substantial evidence he caused $400 or more of 

damage. We examine “whether, after viewing the evidence in the light most favorable 

to the prosecution, any reasonable fact finder could have found the [damage] element[] 

of the crime to be true beyond a reasonable doubt.” (In re Kyle T. (2017) 9 Cal.App.5th 

707, 712.) “It is not the province of the reviewing court to overturn the jury’s verdict 

when it is supported by substantial evidence including the reasonable inferences to be 

drawn therefrom.” (People v. Cullen (1951) 37 Cal.2d 614, 625.)

2 The reporter’s transcript erroneously reflects that Father spent $10,062 on

repairing the window.
5

If a vandal causes less than $400 in damage to property, then the offense is a 

misdemeanor. (§ 594, subd. (b)(2)(A).) If a vandal causes $400 or more in damage to 

property, then the vandalism offense is elevated to a wobbler. (§ 594, subd. (b)(1).) 

The vandalism statute “does not itself specify a method for proving the amount of 

property damage in a vandalism prosecution.” (In re Kyle T., supra, 9 Cal.App.5th at p. 

713.) However, section 594 “requires the People to prove the amount of ‘defacement, 

damage, or destruction,’ which [has been] interpret[ed] to include the cost of repairing 

or replacing the vandalized property.” (In re A.W. (2019) 39 Cal.App.5th 941, 950.) 

When calculating restitution, the value of “damaged property shall be the replacement 

cost of like property, or the actual cost of repairing the property when repair is 

possible.” (§ 1202.4, subd. (f)(3)(A).) 

Defendant’s issue is with the “like property” factor. Defendant asserts the 

prosecutor failed to prove that the replacement door was “like property.” The record 

reflects that the primary difference between the damaged door and the replacement door 

was that the replacement door was new. During trial, Sister was asked, “Was the new 

door better than the previous door prior to that door being broken?” Sister responded, 

“Well, yeah, because it was a new door.” A reasonable inference from Sister’s answer 

is that the damaged door and the replacement door were similar, other than the 

replacement door being new. 

Further, Father testified that “[a]ll doors are very expensive right now.” A 

reasonable inference from that testimony is that Father was seeking to purchase the 

cheapest door possible. Thus, one can reasonably infer that Father did not upgrade 
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Sister’s door. In sum, there is support for the finding that the replacement door was 

“like property.”

B. EQUAL PROTECTION

As set forth ante, if a defendant’s vandalism causes $400 or more in damage, 

then the vandalism is a wobbler. (§ 594, subd. (b)(1).) If a thief takes property worth 

$950 or more, then the theft is a wobbler. (§§ 489, subd. (c)(1).) Defendant contends 

the $400 threshold for vandalism to be a wobbler offense (§ 594, subd. (b)(1)) violates 

equal protection because vandals should have the same $950 wobbler threshold as 

thieves (§§ 486, 487, subd. (a) & 488).

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“The first step in the equal protection analysis is to determine whether two 

groups are similarly situated. The question ‘ “is not whether persons are similarly 

situated for all purposes, but ‘whether they are similarly situated for purposes of the law 

challenged.’ ” ’ ” (In re Williams (2020) 57 Cal.App.5th 427, 434.) “ ‘Persons 

convicted of different crimes are not similarly situated for equal protection purposes.’ ” 

(People v. Descano (2016) 245 Cal.App.4th 175, 182.) 

Theft and vandalism are different offenses. Theft involves the taking of property

(§ 487, subd. (c)), while vandalism involves the destruction or defacement of property

(§ 594, subd. (a)). With theft, it is possible the property could be returned unharmed. 

While with vandalism, the property necessarily has to be replaced, repaired, or restored. 

3

 The People assert defendant forfeited this issue by failing to raise it in the trial 

court. We choose to address the merits of the issue because it is easily resolved.
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Because the crimes are different, defendant has not demonstrated that vandals who 

cause $400 or more in damage are similarly situated to thieves. 

C. AGGREGATION INSTRUCTION

Defendant contends the trial court erred by not instructing the jury that, in order 

to aggregate the amount of damage caused by separate acts of vandalism, the jury must 

first find that the separate acts were part of a single intention and plan.

4

“[M]ultiple instances of misdemeanor vandalism can be aggregated to form a 

single felony, unless ‘the evidence shows that the offenses are separate and distinct and 

were not committed pursuant to one intention, one general impulse, and one plan.’ ” (In 

re Arthur V. (2008) 166 Cal.App.4th 61, 69.) In other words, in order to reach the $400 

threshold for a felony, a prosecutor can aggregate the damage from multiple acts of 

vandalism if the acts were part of a single intention and plan. 

In this case, the prosecutor aggregated the damage from the broken window and 

door to reach the $400 threshold. The trial court instructed the jury with the standard 

vandalism instructions, which do not include the foregoing information about 

aggregating the damage only if the offenses were part of a single intention and plan. 

(CALCRIM Nos. 2900 & 2901.) Thus, the trial court did not instruct the jury that the 

jury needed to find the two acts of vandalism were part of a single intention and plan 

4

 The People assert defendant forfeited this issue by failing to request the 

instruction in the trial court. We choose to explain why, if there were an error, it was 

harmless. 
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before the damage from the two acts could be aggregated. For the sake of efficiency, 

we will assume, without deciding, that the instructional omission was an error.

“We must determine whether it is clear beyond a reasonable doubt that a rational 

jury would have rendered the same verdict absent the error.” (People v. Merritt (2017) 

2 Cal.5th 819, 831.) The window and door that defendant broke are separated by 

approximately five feet. Defendant broke the window, and then approximately two 

minutes later, kicked in the door. Given the physical and temporal proximity of the two 

acts, the reasonable inference is that the two acts were part of a single intention and 

plan.

Moreover, during closing argument, defendant’s trial attorney asserted (1) it was 

unclear if defendant was the person who committed the offenses; and (2) the value of 

the door and window was questionable because Father “didn’t shop around” to find if 

there were cheaper options. Defense counsel did not assert that the two acts were part 

of separate intentions and plans and therefore could not be aggregated. 

Given the proximity of the window and the door, the brief time between events, 

the lack of any intervening provocation, and the absence of argument on the issue by 

defense counsel, we conclude that a reasonable jury would have rendered the same 

verdict absent the error. Thus, the assumed error is harmless.

D. ADMISSIBILITY OF PROPENSITY EVIDENCE

1. PROCEDURAL HISTORY

The prosecutor moved to present evidence that, in 2019, defendant assaulted 

Sister with a lawn chair and, in 2020, defendant kicked in Sister’s front door, 
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brandished a knife, and threatened Sister. The prosecutor asserted the evidence should 

be allowed because “vandalism is a specific intent crime.” Defendant opposed the 

motion asserting “[v]andalism is a general intent crime.” Further, defendant contended 

his theory of the case was “that he didn’t do it or the value didn’t exceed [$400], but not 

that he did it and it was an accident. So it’s not like . . . they need to prove . . . he was 

motivated by criminal intent to do this.” The trial court ruled that it would “exclude the 

information pertaining to the previous conduct” because there was too great a risk of the 

jury using the evidence as propensity evidence. However, the ruling was without 

prejudice, if anything should change during the trial.

The trial court and the parties had an off-the-record discussion about jury 

instructions. Five days later, the parties again convened on the record, and the trial 

court said, “What I was going to allow is there has been previous aggressive conduct by 

the defendant toward the parties in this case, but not any[thing] specific about what that 

conduct was.” We infer that, during the off-the-record discussion of jury instructions, 

the trial court altered its prior ruling. 

Defendant moved to exclude a portion of the victim’s 911 call pertaining to the 

instant case, because during the call, the victim alleged defendant had previously 

attacked Sister and the victim’s brother, i.e., the attacks in 2019 and 2020. The trial 

court denied the motion to exclude because the evidence fell within the court’s ruling of 

allowing evidence of “aggressive behavior . . . without getting into specifics.” 

The jury heard the victim’s 911 call, in which he said, “[W]e have [a] restraining 

order on, um, on the neighbor”; and “He—he’s upset. I guess he’s attacked my sister 
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and my brother before.” The Dispatcher asked, “And so you said he’s attacked your—

your family before?” The victim responded, “Yes.” 

When Sister testified, the following exchange occurred:

“[Prosecutor]: So you stated that you’ve had prior incidents regarding the 

defendant; is that right?

“[Sister]: Yes.

“[Prosecutor]: How many incidents have you had?

“[Sister]: Maybe a total of six incidents.

“[Prosecutor]: Okay. And without getting into the specifics, what type of 

incidents have you had?

“[Sister]: Um, some violent incidents where he actually, like you know—

“[Prosecutor]: Okay. And is he allowed to be at your house?

“[Sister]: No.

“[Prosecutor]: Why is that?

“[Sister]: Um, I actually have a restraining order against him.” 

When Father testified, the prosecutor asked, “And so are you familiar that there 

had been previous incidents where your son has been aggressive with the neighbors?” 

Father replied, “Yes. That has happened. But every time something has happened, he 

is the one that comes out injured.” Riverside County Sheriff’s Deputy Franco testified 

that, when he was dispatched to the incident involving defendant, the call concerned “a 

violation of a restraining order.”
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2. ANALYSIS

Defendant contends the trial court erred by allowing propensity evidence to be 

presented to the jury. Defendant takes issue with the portions of the 911 call and the 

trial testimony set forth ante.

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We apply the abuse of discretion standard of review. (People v. Gonzalez (2021) 

12 Cal.5th 367, 407-408.) “Evidence of a person’s character . . . is inadmissible when 

offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. 

(a).) However, evidence of a person’s prior misconduct is admissible “when relevant to 

prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake or accident, . . . ) other than his or her disposition to commit 

such an act.” (Evid. Code, § 1101, subd. (b).)

Vandalism occurs when a person maliciously damages property. (§ 594, subd, 

(a).) The term “maliciously” in the vandalism statute indicates it is a general intent 

crime. (People v. Atkis (2001) 25 Cal.4th 76, 85-86.) The point of the malice element 

is to “ensure[] that the act is ‘done with a design to do an intentional wrongful act . . . 

without any legal justification, excuse or claim of right.’ ” (Id. at p. 88.)

The victim testified that after defendant broke open the door, defendant “yell[ed] 

random profanity, [he] didn’t make sense,” and defendant backed away toward the 

5 The People contend defendant forfeited the issue as to the trial testimony 

because defendant failed to object on the record. We will give defendant the benefit of 

the doubt and assume that, during the off-the-record discussions, his trial counsel 

continued objecting to evidence of prior misconduct. Thus, we will address the merits 

of the issue. 
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middle of the front yard. Defendant’s conduct was so confusing that, without the 

context of prior misconduct, it could have appeared that defendant was seeking help for 

some sort of urgent problem, e.g., a fire or medical incident. In fact, the victim testified 

that the reason he called 911 was because his siblings warned him about defendant’s 

prior misconduct. Thus, one needed to understand defendant’s history in order to 

understand that defendant posed a threat, rather than defendant running to Sister’s house 

seeking assistance from a threat. In sum, the evidence of defendant’s prior misconduct 

was not offered to prove defendant had a tendency to commit the charged acts, rather, it 

was relevant to proving that defendant acted without justification—that he was not, for 

example, in danger and seeking help. The trial court did not err.

E. FAILURE TO INSTRUCT

Defendant contends the trial court erred by not sua sponte giving the jury a 

limiting instruction concerning propensity evidence (CALCRIM No. 375).

“Evidence of past offenses may not improperly affect the jury’s deliberations if 

. . . the evidence is obviously used to effect one or more of the many legitimate purposes 

for which it can be introduced. [Citations.] Neither precedent nor policy favors a rule 

that would saddle the trial court with the duty either to interrupt the testimony sua 

sponte to admonish the jury whenever a witness implicates the defendant in another 

offense, or to review the entire record at trial’s end in search of such testimony. There 

may be an occasional extraordinary case in which unprotested evidence of past offenses 

is a dominant part of the evidence against the accused, and is both highly prejudicial and 

minimally relevant to any legitimate purpose. In such a setting, the evidence might be 
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so obviously important to the case that sua sponte instruction would be needed to 

protect the defendant from his counsel’s inadvertence. But [our Supreme Court held]

that . . . in general, the trial court is under no duty to instruct sua sponte on the limited 

admissibility of evidence of past criminal conduct.” (People v. Collie (1981) 30 Cal.3d 

43, 64, fn. omitted.)

As discussed ante, the evidence of defendant’s prior misconduct was relevant to 

establishing that defendant acted maliciously, which was a legitimate purpose for the 

evidence. As a result, this is not an extraordinary case in which the trial court had a sua 

sponte duty to give the jury a limiting instruction on propensity evidence (CALCRIM 

No. 375). 

F. HEARSAY

1. PROCEDURAL HISTORY

In the victim’s 911 call, he said, “I guess he’s attacked my sister and my brother 

before.” When discussing the admissibility of the foregoing hearsay, the prosecutor 

said, “I don’t know if he was present for the incident that took place.” In other words, 

the victim was told about defendant attacking his siblings. The trial court replied, “It 

appears it says he attacked my sister, so it sounded like he wasn’t personally aware of 

that. Although, my inclination would be to think that this has to do with kind of an 

excited utterance situation if he’s calling 911 because of something that just happened.” 

2. ANALYSIS

Defendant contends the victim’s statement to the 911 dispatcher about defendant 

having previously attacked the victim’s siblings, should have been excluded as hearsay. 
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One of the requirements for the excited utterance/spontaneous statement 

exception is that the statement describes an act “perceived by the declarant.” (Evid. 

Code, § 1240, subd. (a).) The victim’s comment that he “guesses” defendant had 

attacked his siblings indicates that the victim did not witness the attack on his siblings. 

Therefore, for the sake of judicial efficiency, we will proceed on the assumption that the 

trial court erred by allowing the hearsay statement.

Next, we examine if the assumed error was harmless. Sister testified that she has 

a restraining order against defendant and previously had six violent encounters with 

defendant. Given that Sister testified to defendant’s violent acts, the victim’s repetition 

of that information was not prejudicial.

G. FAILURE TO MAKE A FINDING ON THE PRIOR STRIKE 

ALLEGATION

1. PROCEDURAL HISTORY

After the jury returned its guilty verdict, the trial court proceeded to address the 

bifurcated issue of the alleged prior strike conviction. The following exchange took 

place:

The Court: “The allegation of the strike prior, do either counsel need to be heard 

on that or present evidence on that?

“[Prosecutor]: At this time the People would ask the Court take judicial notice of 

the plea forms. . . .

“The Court: Okay. Any objection to my taking judicial notice of the strike 

priors as alleged in the Information?
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“[Defense Counsel]: No, Your Honor.

“The Court: Okay. Very well. The Court will take judicial notice of those[ a]nd 

consider those at the time of sentencing.”

The minute order pertaining to the foregoing reads, “Court finds prior strike(s) 

true.” Approximately one month later, at the sentencing hearing, the trial court said, 

“[T]he allegation of the strike prior was found true.” When pronouncing defendant’s 

sentence, the trial court said, “Because of the prior strike, his term has to be doubled.”

2. ANALYSIS

Defendant contends the trial court erred by doubling defendant’s sentence when 

the trial court failed to find the prior strike allegation true.

In People v. Clair, our Supreme Court wrote, “On behalf of [the] defendant, the 

People raise the contention that the sentence on the serious-felony enhancement must be 

set aside because no finding on the underlying prior-conviction allegation appears. We 

disagree. During the penalty phase, [the] defendant waived trial by jury on the 

allegation and consented to trial by the court. At the same time, he stipulated that in 

deciding the issue, the court could consider the evidence that the People intended to 

introduce before the jury in order to prove the conviction as a circumstance in 

aggravation under the rubric of a prior felony conviction. Such evidence was in fact 

introduced, including what the court referred to as ‘certified copies of [the] conviction.’ 

The question was subsequently argued to the court. At sentencing, the court 

impliedly—but sufficiently—rendered a finding of true as to the allegation when it 

imposed an enhancement expressly for the underlying prior conviction. Contrary to 
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[the] defendant’s claim, there is no failure of proof. Neither is there any reason to 

vacate the enhancement—and less reason still to disturb the penalty of death.” (People 

v. Clair (1992) 2 Cal.4th 629, 691, fn. 17 (Clair).)

In Clair, the issue concerned a bifurcated enhancement and a court trial. (Clair, 

supra, 2 Cal.4th at p. 691, fn. 17.) Similarly, the issue in the instant case concerns a 

bifurcated prior strike allegation and court trial. The Clair defendant stipulated to the 

court considering the People’s certified copies of the defendant’s conviction, in order to 

prove the prior felony. (Ibid.) Likewise, in the instant case, the People requested the 

trial court take judicial notice of imaged plea forms. The trial court asked if defendant 

objected to the trial court “taking judicial notice of the strike priors as alleged in the 

Information.” Defendant said he did not object. In Clair, the parties argued the 

enhancement allegation to the trial court. (Ibid.) In the instant case, the trial court 

asked if “either counsel need to be heard,” and defense counsel said only that he did not 

object to the court taking judicial notice of the strike priors alleged in the Information. 

In Clair, the Supreme Court held that the trial court impliedly “rendered a 

finding of true as to the allegation when it imposed an enhancement expressly for the 

underlying prior conviction.” (Clair, supra, 2 Cal.4th at p. 691, fn. 17.) 

Correspondingly, in the instant case, at sentencing, the trial court said, “Because of the 

prior strike, his term has to be doubled. Count 1 is punishable by one year, four 

months[, t]wo years or three years, which has to be doubled. The Court has selected the 

mid term of two years double[d] for a total of four years incarceration.” Thus, the trial 

court, similar to Clair, expressly imposed a sentence that implied it found the prior 
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strike allegation to be true. Given the similarities between the instant case and Clair, 

we follow the Clair precedent and conclude the true finding on the strike is implied. 

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.)

H. CUMULATIVE ERROR

Defendant contends that the errors he alleged, when cumulated, amount to a 

denial of due process. “ ‘The “litmus test” for cumulative error “is whether defendant 

received due process and a fair trial.” ’ ” (People v. Mireles (2018) 21 Cal.App.5th 237, 

249.)

For the sake of judicial efficiency, we assumed that the trial court erred by failing

to instruct the jury on aggregating damage for separate acts of vandalism and admitting 

hearsay about defendant having previously attacked the victim’s siblings. As explained 

ante, the instructional error was harmless because defendant did not argue the 

aggregation issue to the jury, and the hearsay was harmless because Sister testified that 

defendant was violent toward her in the past. Upon cumulating these two assumed 

errors, we conclude defendant received a fair trial, although it may not have been 

perfect. (People v. Cunningham (2001) 25 Cal.4th 926, 1009 [“The few errors that 

occurred during defendant’s trial were harmless, whether considered individually or 

collectively. Defendant was entitled to a fair trial but not a perfect one”].)

I. ABSTRACT OF JUDGMENT

Defendant asserts the abstracts of judgment in his probation violation cases (case 

Nos. INF2000441 & INF1900624) need to be amended to indicate the sentences in 

those cases are to be served concurrently to the sentence in the vandalism case (case No. 
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INF2001334). The People do not oppose the amendment of the abstracts. Accordingly, 

we will direct the trial court to amend the abstracts of judgment in the probation 

violation cases to indicate the sentences are concurrent to the vandalism sentence.

DISPOSITION

The judgment is affirmed. The trial court is directed to amend the abstracts of 

judgment in case Nos. INF2000441 and INF1900624 to reflect those sentences are 

being served concurrently to the sentence in INF2001334. The trial court is directed to 

send the amended abstracts of judgment to the proper prison authorities.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.