Trial counsel was not ineffective for failing to defend against vandalism charges by asserting the victim’s violation of a civil statute because a person may not commit a crime in response to the breach of a civil statute. The three defendants were convicted of felony vandalism. The case arose out of a confrontation between the defendants and a repossession agent who was in the process of taking a car. On appeal, defendants raised a number of issues, primarily based on ineffective assistance of trial counsel (IAC). Held: Affirmed. A defendant asserting IAC must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that defendant was thereby prejudiced. Defendants argued trial counsel erroneously failed to raise a defense based on California Uniform Commercial Code section 9609, which provides that a secured party may take possession of collateral without judicial process if it proceeds without a breach of the peace. Defendants argued that as soon as they protested the attempted repossession of their car, the repossession agent was required to cease any attempts to take the car and that any acts on his part after that time were at his own risk to himself and his property. However, section 9609 has no application to the criminal charge of felony vandalism and does not provide a defense to that offense. Defendants’ conduct in retrieving the car was not one of the lawful remedies to a violation of section 9609, as enumerated in section 9625. Further, there is no authority permitting a person to commit a crime in response to an unsanctioned repossession that results in a breach of the peace. Comparative fault is not a defense in criminal proceedings.

Trial counsel was not ineffective for failing to clarify the vandalism jury instructions. During deliberations the jury asked what items of property were included in the vandalism charge. Pursuant to defense counsel’s request, the trial court told the jury it must decide what, if any, property was vandalized. On appeal, defendants argued trial counsel should have made sure the jury understood the instructions and was ineffective in not doing so. However, the instructions provided to the jury gave a complete and accurate statement of the governing law. Defendants failed to state how trial counsel should have sought to clarify the instructions, or how any clarification would have created a reasonable probability of a more favorable verdict. The record also revealed that defendants’ counsel could have made a tactical decision in failing to provide additional guidance to the jury’s question, since the question indicated the jury disagreed as to what items, if any, the prosecution proved were vandalized.

The trial court did not abuse its discretion in denying defendants’ motion for new trial. A trial court may grant a new trial when new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at trial. The court must consider whether the newly discovered evidence is of such strength that a result more favorable to the defendant is probable had the evidence been admitted at trial. In support of their motion, defendants offered the declaration of one of their former employees as to matters he witnessed the day of the incident. However, defendants failed to show that this witness could not have been discovered with reasonable diligence before trial. The motion was properly denied.

The trial court did not abuse its discretion in denying defendants’ request to reduce their felony convictions to misdemeanors under Penal Code section 17. Defendants filed a motion with the trial court asking the court to exercise its discretion under section 17, subdivision (b), to reduce each of their felony convictions to misdemeanors and not to impose custody time as part of their sentences. They argued that they did not have criminal intent, and the incident resulted from a mistake and bad luck. The trial court denied the motion and the defendants challenged this ruling on appeal. The Court of Appeal concluded the trial court did not abuse its discretion. The decision to reduce a wobbler from a felony to a misdemeanor under section 17, subdivision (b) is solely in the discretion of the trial court. The relevant criteria include the nature and circumstances of the offense, the defendant’s attitude toward the offense, or his behavior and demeanor at trial. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Here, the trial court was well within its discretion in finding that the nature and circumstances of the offense did not merit either reducing the felonies or granting defendants’ request for no custody time, where the defendants resorted to self-help in committing the crime before leaving the scene.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/C082144.PDF