Filed 11/19/13 P. v. Acosta CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVE P. ACOSTA,

Defendant and Appellant.

 A133462

 (San Francisco City & County

 Super. Ct. No. 206899)

A jury convicted defendant Steve P. Acosta of multiple offenses against his former 

spouse, including attempted murder, torture, criminal threats, and infliction of great 

bodily injury involving domestic violence, and felony vandalism. Defendant contends 

his convictions must be reversed in whole or in part because (1) the trial court improperly 

denied his motion to represent himself during trial, and (2) there was insufficient 

evidence he committed vandalism. Finding no merit in defendant’s arguments, we affirm 

the judgment.

I. BACKGROUND

A. Charges

Defendant was charged in a third amended information with one count of torture 

(Pen. Code,1§ 206) with the use of a deadly weapon (§ 12022, subd. (b)(1)) and the 

infliction of great bodily injury involving domestic violence (§ 12022.7, subd. (e)), two 

counts of stalking (§ 646.9, subds. (a), (b)) with the use of a deadly weapon (§ 12022, 

subd. (b)(1)) and the infliction of great bodily injury involving domestic violence 

 

1 All further statutory references are to the Penal Code.
2

(§ 12022.7, subd. (e)), four counts of criminal threats (§ 422), four counts of disobeying a 

domestic relations order (§ 273.6, subd. (a)), two counts of vandalism (§ 594,

subds. (b)(1) & (b)(2)(A)), one count of premeditated attempted murder (§§ 187, 

subd. (a), 664) with the use of a deadly weapon (§ 12022, subd. (b)(1)) and the infliction 

of great bodily injury involving domestic violence (§ 12022.7, subd. (e)), one count of 

aggravated mayhem (§ 205) with use of a deadly weapon (§ 12022, subd. (b)(1)), one 

count of assault with a deadly weapon (§ 245, subd. (a)(1)) and the infliction of great 

bodily injury involving domestic violence (§ 12022.7, subd. (e)), one count of residential 

burglary (§ 459) with use of a deadly weapon (§ 12022, subd. (b)(1)), one count of 

domestic violence (§ 273.5, subd. (a)) with the use of a deadly weapon (§ 12022, 

subd. (b)(1)) and the infliction of great bodily injury involving domestic violence 

(§ 12022.7, subd. (e)), two counts of battery (§ 242), and one count of contempt of a 

protective order (§ 166, subd. (c)(1)). The third amended information further alleged 

defendant had two strike priors (§§ 667, subds. (a)(1), (d) & (e), 1170.12, subds. (b) &

(c)) for assault with a deadly weapon (§ 245, subd. (a)) and for assault with force likely to 

cause great bodily injury (§ 245, subd. (a)(1)) with the infliction of great bodily injury 

(§ 12022.7). 

B. Prosecution Evidence

Kimberly Celoni and defendant were married in February 1997. At the end of 

2007, defendant told Celoni he wanted a divorce but she resisted. After defendant stalked 

her, accused her of infidelity, and made threats of violence against her and her children, 

Celoni agreed to a divorce in March 2008. After a further stalking incident on April 2, 

2008, she filed a police report and obtained a protective order. 

At this time, Celoni and defendant jointly owned a Mercedes SUV, which 

defendant referred to as his “truck.” They both made payments on the vehicle. Celoni 

separately owned a convertible Mercedes 280 SLK. At an April 9, 2008 divorce hearing 

the judge ordered that both vehicles go into Celoni’s custody. The judge instructed 

defendant to figure out how much the Mercedes SUV was worth and give Celoni half that 

amount. In response to the judge’s instructions, defendant became furious and “started 
3

ranting and raving in the courtroom and walked right out before it was finished.” Before 

storming out, defendant told the court all he wanted was his truck. 

At the same hearing, a five-year restraining order was issued against defendant. 

Among other constraints, it ordered defendant to stay at least 100 yards away from 

Celoni, her home, job, and car. Defendant refused to accept the order documents at the 

hearing. 

Two days later, on April 11, Celoni drove past defendant in her Mercedes 

convertible on Mission Street in San Francisco. Spotting her, defendant said, “Hey, 

bitch. Come on over here.” Celoni made a U-turn in the middle of the street to escape 

confrontation with defendant whereupon he immediately called her cell phone. Celoni 

drove directly to the police station where, together with Officer Campagnoli of the 

domestic violence unit, she listened to his voicemails. In the voicemail messages

defendant told Celoni the “last motherfucker you’ll see is me” at “four in the 

motherfucking morning” and he would go to “death row” for what he planned to do.

Defendant repeatedly stated: “I’m taking everything from you that you took from me.” 

On the night of April 13, Celoni left her Mercedes convertible and the Mercedes 

SUV she shared with defendant parked in front of her house. Both vehicles were in good 

condition at this time. The next morning all four tires on both vehicles had been slashed. 

On April 15, Celoni was at her office when defendant once again called. In his 

voice message he told Celoni: “Now you have everything. Just look out your window.” 

Celoni spotted defendant from the window in the back of her office walking out of the 

office parking lot up Mission Street. In another message left the same day defendant 

stated: “[Y]ou ended up treating me like a gorilla pimp. Think about it. You said fuck 

it, I’m taking the truck . . . and I’m disrespecting you.” 

At the end of the workday, Celoni discovered photos of her daughter and 

granddaughter under the windshield wiper on her car. She recognized the photos as those 

belonging to defendant. Celoni’s car was parked in the office parking lot where 

defendant had been seen earlier that day. 
4

After weeks of intimidation, defendant turned threat to action when, at 

approximately 4:18 a.m. on April 16, he broke into Celoni’s home through the garage 

door window. Defendant made verbal threats against Celoni’s life and brandished a 

hammer as he attempted to enter through the window. Unable to safely escape defendant 

from the ground floor, Celoni jumped from the upstairs balcony. The fall broke her back 

and rendered her immobile. Finding her vulnerable, defendant began to strike Celoni 

repeatedly with the hammer. The majority of the blows landed on Celoni’s head, 

although her left hand was also severely injured as she attempted to shield her face from 

the attack. As a result of the permanent injuries she sustained in the attack, Celoni is now 

on lifetime disability. 

C. Defense Evidence

The sole defense witness, defendant’s brother, Ken Acosta, testified to defendant’s 

tumultuous history of drug abuse. Acosta testified his brother sustained a long period of 

sobriety during his marriage to Celoni, but began using narcotic drugs again in the 

months prior to his attack on Celoni in April 2008. In summation, the defense admitted 

to defendant’s threats and violence but argued defendant’s intoxication at the time of the 

offenses prevented him from forming the specific intent necessary to sustain conviction

on the associated charges. On the charge of vandalism, the defense argued the evidence 

did not support a finding of guilt beyond a reasonable doubt. 

D. Verdict, Sentence, Appeal

The jury acquitted defendant of two of the four criminal threat counts, and one of 

the two stalking counts was presented to the jury as a lesser included offense. Defendant 

was found guilty of all remaining counts and all of the special allegations associated with 

those counts were found to be true. 

The trial court sentenced defendant to an aggregate term of 142 years to life in 

prison. This timely appeal followed. 
5

II. DISCUSSION

A. Faretta Motion

Defendant first contends the trial court erred in denying his motion to represent 

himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta).

1. Facts

After a complaint was filed on April 18, 2008, charging defendant with 23 counts, 

defendant was arraigned on November 3, 2008. The case ultimately went to trial July 11, 

2011. During the interim three years, 2008, 2009, and 2010, defendant made six separate 

requests to continue his trial. In addition to the requested continuances, defendant 

submitted multiple motions to substitute counsel during the three years preceding trial. 

Defendant submitted a Marsden2 motion on October 9, 2008, against his first defense 

attorney, Kenneth Quigley. This motion was denied. However, Quigley was ultimately

relieved for good cause on June 8, 2010, and replaced by Floyd Andrews. Defendant 

made two motions to discharge Andrews, on May 2 and 16, 2011. 

Defendant’s trial commenced on July 11, 2011. During a hearing on in limine 

motions on the second day of trial, defendant interjected as follows: “Can I address the 

Court real quick? I’ve been waiting since I got in this jail for a time that I ask to address 

the Court, patiently.” After the court asked defendant to first take some time to consider 

what he planned to tell the court and to confer with defense counsel before doing so, 

defendant stated: “I’m almost willing to plead guilty so I don’t have to listen to [the 

prosecutor’s] squeaky voice another minute. I want to make a Faretta motion.” The 

court informed defendant that it was “too late” to make a Faretta motion as the trial had 

already begun. 

Defendant stated he had been waiting for a time to make the Faretta motion and 

he had not been aware he was in the process of trial until the day prior. He further 

submitted he had tried two Marsden motions, both of which had been denied. To this,

 

2

People v. Marsden (1970) 2 Cal.3d 118 (Marsden) (holding a defendant has the 

right to discharge appointed counsel upon a showing of ineffective representation).
6

the court explained the Faretta motion is a motion for self-representation and defendant’s 

attorney could no longer help him. The following colloquy ensued: “THE COURT: 

You won’t be permitted to have [defense counsel] sitting there so that he could advise 

you as to what to do or you couldn’t consult with him or anything. You are on your own. 

That’s the motion that you are making right now? [¶] THE DEFENDANT: Under pro 

per, I can get some help to help me guide through the system. [¶] THE COURT: That 

type of help to guide you through the system is not available on a Faretta motion. [¶] 

THE DEFENDANT: Maybe I have it mixed up. Can you consider it? I would rather 

just defend myself. [¶] THE COURT: Based upon the record before me now and the 

timing of the motion and the reasons that you give, you are tired of listening to the 

prosecutor? [¶] THE DEFENDANT: I was being facetious. Really, she drives me crazy, 

but that’s not my issue. I don’t feel I’m getting representation here and I—no insult to 

the lawyer, he’s great, but I don’t think—this is not a good fit. It’s not working. [¶] THE 

COURT: . . . [¶] The Court views your position as being you are seeking the Court to 

give you another attorney, which the Court is not going to do. It’s untimely to do at this 

point. [¶] And it’s also a motion to represent yourself in case I don’t give you another 

attorney. [¶] On the surface of it, based upon what you’ve told me here, this is an 

apparent use—some might say manipulation of two rights—in the hope that some type of 

error might arise out of that.” 

The court subsequently held a hearing on the Marsden motion outside of the 

presence of the prosecutor. At this hearing, defendant expressed frustration with his 

attorney due to a lack of witnesses to testify on his behalf: “Nobody is being contacted.

I’m not okay with the idea of going to jail for the rest of my life. I’m 60. And there’s 

virtually no witnesses—character witnesses or legal witnesses.” When questioned further 

as to who he believed should be called defendant stated: “I would have to get a phone 

book and address book of people I’ve known for the last 30 years.” He continued, “I 

would need some help, and I would need a private investigator. That’s why I think I 

could do it on my own.” When the court requested he describe the witnesses if he could 

not name them, defendant offered: “My director at my job. There’s some 40 or 50 
7

clients who are their family members. There’s my family members. There’s 50 people 

in Narcotics Anonymous . . . .”

The court denied defendant’s motions to discharge current counsel and to 

represent himself at trial. As with defendant’s prior Marsden motions regarding 

Andrews, the court determined defendant had not offered evidence showing defense 

counsel provided inadequate representation or the presence of irreconcilable conflict 

likely to result in ineffective representation. Quite to the contrary, in the court’s view 

“ ‘the quality of counsel’s representation . . .’ [¶] . . . has been excellent.” Quoting from 

and citing the reasoning in People v. Marshall (1996) 13 Cal.4th 799, 827, the court 

determined defendant’s Faretta motion to be untimely and equivocal. Specifically, the 

court underscored the “unreasonable” length of time between defendant’s arraignment 

and the requested Faretta motion. Also “clear from [the] record” was “ ‘defendant’s 

prior proclivity to substitute counsel.’ ” The court further observed the need to consider 

the potential for disruption and delay to proceedings. To this end, the court stated:

“[T]he defendant has presented nothing to this Court to indicate that he would be able to 

proceed expeditiously with the trial on his own.” To the contrary, the court noted 

defendant’s ill-conceived belief that he would receive assistance “to guide him through 

the proceedings . . . shows that there would be a substantial disruption or delay.” The 

court determined the delay would be untenable given “the stage of the proceedings is at 

the trial stage right now . . . . this is the second day of trial.” Further, based on the timing, 

the “entire record before the Court and the defendant’s reasoning,” the court could not 

“make [the] finding” that defendant’s motion was “clear and unequivocal” and “premised 

on a real desire to act as his own attorney.” 

2. Applicable Law

Under the Sixth Amendment, a defendant has a federal constitutional right to 

represent himself if he knowingly and intelligently elects to do so. (Faretta, supra, 

422 U.S. 806.) However, the right to self-representation is not absolute. Motions for 

self-representation made within close range of or after commencement of a defendant’s 

trial may be rejected subject to the trial court’s discretion: “In order to invoke an 
8

unconditional right of self-representation, the defendant must assert the right ‘within a 

reasonable time prior to the commencement of trial.’ [Citations.] A motion made after 

this period is addressed to the sound discretion of the trial court.” (People v. Burton

(1989) 48 Cal.3d 843, 852, italics added.) 

As stated in People v. Windham (1977) 19 Cal.3d 121 (Windham): “For example, 

a defendant should not be permitted to wait until the day preceding trial before he moves 

to represent himself and requests a continuance in order to prepare for trial without some 

showing of reasonable cause for the lateness of the request. In such a case the motion for 

self-representation is addressed to the sound discretion of the trial court which should 

consider relevant factors . . . .” (Id. at p. 128, fn. 5.) 

Furthermore, the timeliness determination is not based on an arbitrary sum of 

days, but rather, upon the trial court’s consideration of the “totality of the circumstances”

at the time the motion is made. (People v. Lynch (2010) 50 Cal.4th 693, 724, overruled 

on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 636–643.) Such 

circumstances include: the time between the motion and the scheduled trial date, 

“whether trial counsel is ready to proceed to trial, the number of witnesses and the 

reluctance or availability of crucial trial witnesses, the complexity of the case, any 

ongoing pretrial proceedings, and whether the defendant had earlier opportunities to 

assert his right of self-representation.” (Id. at p. 726.) In balance with the Sixth

Amendment right to effective assistance of counsel, the court is required to “draw every 

inference against supposing that the defendant wishes to waive the right to counsel.” 

(People v. Marshall (1997) 15 Cal.4th 1, 23 (Marshall).) To grant such a waiver, the trial 

court must find a defendant’s motion for self-representation to be unequivocal. 

(Windham, supra, 19 Cal.3d at pp. 127–128.) As stated in People v. Valdez (2004) 

32 Cal.4th 73, 98–99 (Valdez): “ ‘[T]he court . . . should evaluate not only whether the 

defendant has stated the motion clearly, but also . . . . the defendant’s conduct or words 

reflecting ambivalence about self-representation . . . . A motion for self-representation 

made in passing anger or frustration, an ambivalent motion, or one made for the purpose 

of delay or to frustrate the orderly administration of justice may be denied.” (Marshall, 
9

supra, 15 Cal.4th at p. 23.) However, if the request is both timely and unequivocal, the 

trial court must grant a defendant’s motion for self-representation without concern for the 

wisdom of such a decision. (Windham, at pp. 127–128.)

A reviewing court must give “ ‘ “considerable weight” ’ ” to the trial court’s 

exercise of discretion. (People v. Hall (1978) 87 Cal.App.3d 125, 132.) This discretion 

is extensive. (People v. Hardy (1992) 2 Cal.4th 86, 196.) We presume the court knows 

and correctly applies the law. (People v. Coddington (2000) 23 Cal.4th 529, 644, 

overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, 

fn. 13.)

3. Analysis

Defendant contends the trial court erroneously denied his Faretta motion in 

violation of his federal constitutional right to self-representation. 

Defendant first argues his Faretta request was unequivocal. His claim is 

straightforward: because he plainly stated the words, “I want to make a Faretta motion,” 

defendant maintains his request was unequivocal. We disagree.

Our Supreme Court in Marshall stated: “It is not only the stability of judgments 

that is at stake . . . when we require a defendant to make an unequivocal request for selfrepresentation. The defendant’s constitutional right to the effective assistance of counsel 

also is at stake.” (Marshall, supra, 15 Cal.4th at pp. 22–23.) In order to protect this 

fundamental right, the United States Supreme Court specifically instructed the trial courts 

to ascertain “whether the defendant truly desires to represent himself or herself.” (Id. at 

p. 23.) Apart from the defendant’s clear statement of the Faretta motion, the court must 

consider the totality of his words and conduct reflecting ambivalence about selfrepresentation. (Valdez, supra, 32 Cal.4th at pp. 98–99.)

A motion for self-representation made “in passing anger or frustration” may be 

denied. (Marshall, supra, 15 Cal.4th at p. 23.) Defendant’s original statement, “I want to 

make a Faretta motion,” was made in close conjunction with his complaint regarding the 

prosecutor’s “squeaky voice.” So ambiguous was his statement, the trial court was 

forced to clarify: “THE COURT: Based upon the record before me now and the timing 
10

of the motion and the reasons that you give, you are tired of listening to the prosecutor?” 

While defendant then denied his annoyance factored into his request, his full statement 

reflects frustration rather than a fully considered desire for self-representation. 

Defendant’s comments to the court also suggest he lacked basic knowledge of 

what self-representation would entail. The trial court had to repeatedly explain to 

defendant the realities of his proposed motion. He admitted his own confusion, stating, 

“Maybe I have it mixed up,” but nonetheless requested the court proceed to consider his 

Faretta motion. Defendant’s queries about “get[ting] some help to help me guide 

through the system” combined with his complaints to the court regarding his trial counsel 

tend to support the trial court’s intuition that defendant’s interest in bringing the Faretta

motion was to be rid of his attorney rather than a sincere and contemplated desire to 

represent himself. (People v. Scott (2001) 91 Cal.App.4th 1197, 1205.) Defendant’s 

confusion and his focus on dissatisfaction with Andrews are also sufficient grounds to 

find his Faretta motion equivocal. (Scott, at p. 1205.)

Defendant complains the trial court “precluded [him] from making his Faretta

request more unequivocal.” He argues the trial court’s first response stating his Faretta

request was “too late,” “ ‘foreclosed any realistic possibility [he] would perceive selfrepresentation as an available option,’ ” thereby preventing him from making an 

unequivocal invocation. (See People v. Dent (2003) 30 Cal.4th 213, 219.) This assertion 

ignores the entirety of the trial court’s discussion of defendant’s Faretta motion. 

Following the challenged comment, the trial court engaged defendant in lengthy 

conversation to make certain he understood what a Faretta request entailed. Reasonably 

deducing defendant might be dissatisfied with his representation, the trial court offered 

him an in camera Marsden hearing on the spot so defendant could freely voice his 

concerns regarding defense counsel. Upon its denial of the Marsden motion, the trial 

court informed defendant it would next turn to consideration of his Faretta motion. We 

find the trial court’s management of defendant’s Faretta motion provided abundant 

opportunity for defendant to unequivocally state his request for self-representation.
11

Defendant next contends his motion would have been considered timely under the 

interpretation of Faretta applied in certain federal appellate courts. In the event of any 

discrepancy in the application of the United States Supreme Court’s precedents regarding 

self-representation, however, we are bound to follow our own high court’s rulings.

(People v. Burton, supra, 48 Cal.3d at p. 854.) 

Defendant correctly points out that the California Supreme Court has not fixed any 

set time (People v. Clark (1992) 3 Cal.4th 41, 99–100; Windham, supra, 19 Cal.3d at 

p. 128), however as defendant concedes, California precedent firmly supports the trial 

court’s finding that defendant’s Faretta motion was untimely because it was submitted 

after trial had begun. (See People v. Clark, at pp. 99–100 [before jury selection, while 

pretrial motions were being heard]; People v. Hamilton (1985) 41 Cal.3d 408, 419–421

[motion made during pretrial proceedings on motion to suppress and again during jury 

selection]; People v. Scott, supra, 91 Cal.App.4th at pp. 1204–1205 [four days before 

trial]; People v. Rudd (1998) 63 Cal.App.4th 620, 624–626 [three calendar days before 

trial]; People v. Ruiz (1983) 142 Cal.App.3d 780, 789 [six calendar days prior to trial];

People v. Morgan (1980) 101 Cal.App.3d 523, 531 [just before jury selection].)

Relying chiefly on a footnote in Windham, quoted above, defendant contends his 

Faretta motion was nevertheless timely because his “trial clearly had not begun in any 

practical sense” and there was no evidence he intended to request a continuance. But our 

Supreme Court in Windham made no such fine distinction about when a trial begins. It 

held that in order to invoke the constitutionally mandated unconditional right of selfrepresentation, a defendant in a criminal trial must assert that right within a reasonable 

time prior to trial. (Windham, supra, 19 Cal.3d at pp. 127–128.) Defendant readily 

admits he made his request after his case had been called to trial. 

We also question defendant’s assertion there was no evidence in the record that he 

“was going to request a continuance.” Defendant not only stated an intent to introduce 

testimony from 40 to 50 clients and 50 members of Narcotics Anonymous, but he also 

made it plain that he would require a private investigator to locate these individuals. That 

defendant did not expressly request a continuance does not mean a postponement of trial 
12

would not be necessary. We find defendant’s Faretta motion was untimely and therefore 

falls into the realm of cases appropriately addressed “to the sound discretion of the trial 

court.” 

In exercising its discretion, the trial court should consider (1) the quality of 

counsel’s representation, (2) the defendant’s prior proclivity to substitute counsel, (3) the 

reasons for the request, (4) the length and stage of the proceedings, and (5) the disruption 

or delay which might reasonably be expected to follow the granting of such a motion.

(People v. Barnett (1998) 17 Cal.4th 1044, 1104–1105; People v. Nicholson (1994) 

24 Cal.App.4th 584, 591.) A review of these factors in defendant’s case convinces us 

that the trial court did not abuse its discretion in denying his belated Faretta request. 

The trial court appropriately weighed the first three factors relating to defense 

counsel. After entertaining three separate Marsden hearings at defendant’s behest, the 

court determined the “quality of [defense counsel Andrews’] representation” to be 

“excellent.” Defendant himself referred to Andrews as a “great” attorney, but insisted 

their relationship was “not a good fit.” The second factor, defendant’s proclivity to 

substitute counsel, is well supported by the record. Prior to his Faretta motion, defendant 

sought to discharge both of his appointed defense attorneys, Attorney Andrews on two 

separate occasions. Defendant stated no additional reason for his Faretta request beyond 

his frustration with Andrews. The trial court explored these issues with defendant in 

some detail in the July 12, 2011 Marsden hearing, and correctly concluded that the 

premise for defendant’s motion was groundless. 

The length and the stage of the proceedings also militated against defendant’s

Faretta motion. (People v. Barnett, supra, 17 Cal.4th at pp. 1104–1105.) Pretrial 

proceedings took more than three years to complete. During this time, defendant

requested and was granted continuances on six separate occasions. As defendant’s trial at 

long last drew near, he twice attempted to discharge Andrews. He offered no justification 

for his delay, failing to adequately explain why he waited until the second day of trial to 

bring his Faretta motion. In conjunction with defendant’s history of continuance 
13

requests and motions to discharge counsel, the trial court could reasonably surmise the 

object of defendant’s Faretta motion was delay. 

As to the final Windham factor, the trial court correctly pointed out the likelihood

that substantial disruption or delay would result from defendant’s last minute selfrepresentation. Defendant’s desire to pursue many dozens of unnamed and effectively

unknown witnesses presented a logistical nightmare that would surely occasion an 

undetermined amount of delay. The trial court noted defendant presented no evidence to 

indicate “he would be able to proceed expeditiously with the trial on his own.” 

In our view, the trial court did not abuse its discretion in denying defendant’s 

Faretta motion.

B. Vandalism/Substantial Evidence

In the alternative, defendant contends there is insufficient evidence to support his 

felony vandalism conviction.

In reviewing a criminal conviction challenged on the basis of insufficient 

evidence, we “ ‘ “must review the whole record in the light most favorable to the 

judgment below to determine whether it discloses substantial evidence—that is, evidence 

which is reasonable, credible, and of solid value—such that a reasonable trier of fact 

could find the defendant guilty beyond a reasonable doubt.” ’ ” (People v. Streeter

(2012) 54 Cal.4th 205, 241.) The court’s role on appeal is limited. “[W]e are bound to 

give due deference to the trier of fact and not retry the case ourselves.” (People v. 

Sanchez (2003) 113 Cal.App.4th 325, 330.) The relevant inquiry before the court is 

whether there is substantial evidence to support the conclusion of the trier of fact, not 

whether guilt is established beyond a reasonable doubt. (People v. Mosher (1969) 

1 Cal.3d 379, 395.) 

To sustain a conviction for vandalism under section 594, it must be proven that a 

defendant (1) maliciously (2) damaged or destroyed (3) any real or personal property not 

his or her own. (§ 594, subd. (a).) If the resulting damage exceeds $400, the offense rises 

to the level of a felony. (§594, subd. (b)(1).)
14

Defendant argues there is insufficient evidence in the record to support the jury’s 

implicit finding that he slashed the eight tires on the two vehicles belonging to Celoni. 

According to defendant, his conviction must be reversed because there “was no direct 

evidence it was he who vandalized the tires.” He points to a lack of eyewitness 

testimony, fingerprint evidence, or physical evidence connecting him to the incident or to 

the scene. Defendant further contends the circumstantial evidence presented at trial 

“merely showed he was the ‘most likely suspect.’ ” While we agree there is no direct

evidence, “ ‘Whether the evidence presented at trial is direct or circumstantial, . . . the 

relevant inquiry on appeal remains whether any reasonable trier of fact could have found 

the defendant guilty beyond a reasonable doubt.’ ” (People v. Bloom (1989) 48 Cal.3d 

1194, 1208, italics omitted.) 

The relevant facts are undisputed. Uncontroverted evidence showed, at the time 

the vandalism occurred, defendant was engaged in a course of conduct intended to terrify 

and intimidate Celoni. Defendant exhibited a particular fixation with Celoni’s vehicles, 

beginning with his statements and conduct at the divorce hearing on April 9, 2008. As 

testimony revealed, at this hearing, defendant became enraged when the Mercedes SUV 

he coowned with Celoni was placed in her exclusive custody. He told the court that all 

he wanted was his truck and then stormed out of the courtroom. Two days later he left 

Celoni a threatening voicemail which jurors might have reasonably viewed as a reference 

to the vehicles: “I’m taking everything from you that you took from me.” On April 14, 

Celoni found all eight tires from the two vehicles had been slashed overnight in front of 

her home. In a voicemail left the following day, defendant told Celoni, “Now you have 

everything,” and in an additional voicemail taunted her, again referring to the SUV: 

“You said fuck it, I’m taking the truck . . . and I’m disrespecting you.” On the same day, 

defendant approached Celoni’s car while she was at work, leaving photos of Celoni’s 

daughter and grandchild on the car and calling her to let her know what he had done. 

As the preceding facts make plain, over the course of this week, defendant’s anger 

regarding Celoni and the Mercedes SUV did not abate. Instead, the jury could have 

reasonably perceived in defendant’s conduct a pattern of escalating attempts to harm 
15

Celoni by leaving frightening verbal messages, vandalizing her property, and menacing 

her at her workplace, all culminating in his attempted murder of Celoni at her home 

during the early morning hours of April 16, 2008.

We apply the substantial evidence test. “ ‘[T]he relevant question is 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.’ ”

(People v. Staten (2000) 24 Cal.4th 434, 460, italics omitted.) We must presume in 

support of those findings the existence of every fact that one could reasonably deduce 

from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.)

Even where the evidence is circumstantial, if there is substantial evidence to 

support conviction, “ ‘ “ ‘the opinion of the reviewing court that the circumstances might 

also be reasonably reconciled with a contrary finding does not warrant a reversal of the 

judgment.’ ” ’ ” (People v. Holt (1997) 15 Cal.4th 619, 668.) We may not set aside a 

true finding for insufficiency of the evidence unless it appears that under no theory 

presented is there sufficient evidence to support it. (See People v. Redmond (1969) 

71 Cal.2d 745, 755.)

We believe this evidence does more than, as defendant contends, “form the basis 

for a strong suspicion of [defendant’s] guilt.” We may not be swayed by the absence of 

certain forms of evidence, such as eye witness testimony or fingerprints, but instead are 

compelled to review the evidence actually presented at trial. (People v. Rodriguez (1999) 

20 Cal.4th 1, 12 [appellate court “failed to view that evidence in the light most favorable 

to the judgment” when it “focused on what it found lacking in the prosecution’s case” 

rather than contrary inferences the jury may have drawn].) We find the testimony of 

Celoni and other evidence presented at trial to be of reasonable, credible, and solid value. 

In our view, the accumulated circumstances—including defendant’s threatening behavior, 

his protracted anger regarding the Mercedes SUV, his violence toward Celoni, and his 

readiness to follow through with his threats—sustain a reasonable inference defendant 

slashed the tires on Celoni’s vehicles. In finding the evidence sufficient to justify such an 

inference, “ ‘ “it is the jury, not the appellate court[,] which must be convinced of the 
16

defendant’s guilt beyond a reasonable doubt.” ’ ” (Id. at p. 11.) We affirm the jury’s 

conviction on the charge of felony vandalism.

III. DISPOSITION

The judgment is affirmed.

_________________________

Margulies, Acting P.J.

We concur:

_________________________

Banke, J.

_________________________

Sepulveda, J.*

 

* Retired Associate Justice of the Court of Appeal, First Appellate District 

assigned by the Chief Justice pursuant to article VI, section 6 of the California 

Constitution.