People v. Tregaskis CA1/5 ( 2024 )

Filed 10/16/24 P. v. Tregaskis CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A166958
v.
RYAN EDWARD TREGASKIS, (Napa County
Defendant and Appellant. Super. Ct. No. 22CR002002)
ORDER MODIFYING OPINION
AND DENYING REHEARING
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on September 30, 2024, be
modified as follows:
On page 5, the first complete sentence, “In a bifurcated proceeding, the
trial court found the aggravating factors to be true,” is deleted and replaced
with the following sentence, including new footnote 2 at the end: “In a
bifurcated proceeding, the trial court found four of the five alleged
aggravating factors to be true.1”
Appellant’s petition for rehearing is denied. There is no change in the
judgment.
Dated: 10/16/2024 Jackson, P.J. , P. J.
1 The prosecution withdrew the allegation that defendant was under
supervision at the time of the offense.
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Filed 9/30/24 P. v. Tregaskis CA1/5 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A166958
v.
RYAN EDWARD TREGASKIS, (Napa County
Defendant and Appellant. Super. Ct. No. 22CR002002)
This is an appeal from judgment after a jury convicted defendant Ryan
Tregaskis of four felony counts, including robbery (two counts) and evading
an officer, and seven misdemeanor counts. On appeal, defendant contends,
and the People agree, that his conviction on count three for felony dissuading
a witness and count nine for misdemeanor receiving stolen property must be
reversed, his sentence on count eight for misdemeanor identity theft must be
stayed under Penal Code section 654,2 and an AIDS education fee must be
struck. Defendant also contends, and the People disagree, that his conviction
on count one for felony robbery must be reversed because the trial court failed
to give a unanimity instruction to the jury.
2 Unless otherwise stated, all statutory citations herein are to the Penal
Code.
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For reasons set forth post, we reverse the judgment and remand with
instructions to (1) vacate defendant’s convictions on counts three and nine,
(2) stay the sentence imposed on count eight under section 654, (3) strike the
$287 AIDS education fee, and (4) resentence defendant as to all remaining
counts and allegations in light of the changed circumstances. (People v.
Buycks (2018) 5 Cal.5th 857, 893.) In all other regards, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 3, 2022, an information was filed charging defendant
with first degree residential robbery (Pen. Code, § 211; counts one & two);
dissuading a witness from reporting a crime (Pen. Code, § 136.1, subd. (b)(1);
count three); evading an officer (Veh. Code, § 2800.2, subd. (a); count four);
false imprisonment by violence (Pen. Code, § 236; count five); misdemeanor
interference with a wireless communication device (Pen. Code, § 591.5; count
six); misdemeanor vandalism (Pen. Code, § 594, subd. (b)(2); count seven);
misdemeanor identifying information theft (Pen. Code, § 530.5, subd. (c)(1);
count eight); misdemeanor receiving stolen property (Pen. Code, § 496,
subd. (a); count nine); misdemeanor possession of a controlled substance
(Health & Saf. Code, § 11377, subd. (a); count ten); and misdemeanor
possession of controlled substance paraphernalia (Health & Saf. Code,
§ 11364; count eleven). The information also alleged several aggravating
circumstances with respect to the felony counts (counts one–five), including
violent conduct indicating a serious danger to society (Cal. Rules of Court,
rule 4.421(b)(1)); prior convictions that are numerous or of increasing
seriousness (id., rule 4.421(b)(2)); prior custody term (id., rule 4.421(b)(3));
and being under supervision at the time of the offense (id., rule 4.421(b)(4)).
A jury trial began on November 28, 2022, at which the following facts
were revealed.
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I. Trial.
In September 2022, defendant, age 31, had been living in Karen S.’s
house for about 10 years. However, Karen had recently told defendant that,
due to his substance abuse and related issues, she wanted him to move out.
In the days leading up to the charged offenses, Karen twice called 911
seeking assistance with defendant due to his drinking and “ ‘out of control’ ”
behavior. On September 7, 2022, in particular, Karen reported, “[H]e wants
to threaten us. He wants to steal our stuff. He wants to slam doors.” That
same day, Karen filed a request for a restraining order and a “vacate order”
against defendant. However, as of September 8, 2022, neither order had been
issued or served.
A. September 8, 2022 Incident (Counts One, Three, Six–
Eight).
On September 8, 2022, Karen and defendant were arguing in the
kitchen of her house. She told him that he was not supposed to be in the
house and that she was going to call 911. The pair continued arguing, and
defendant left.
Defendant later returned to the house. He and Karen argued again,
and Karen repeated her warning that she would call 911. Defendant grabbed
Karen’s purse, which contained her phone. When Karen tried to get it back,
the purse’s strap broke and its contents “went flying . . . .” Karen told
defendant she would call 911 from her bedroom, so she went there, locking
the door behind her.
Karen called 911 from her bedroom. Defendant kicked the bedroom
door a few times before leaving again. Karen later found her purse and most
of its contents spread around the house and backyard. However, some of her
credit cards were missing.
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B. September 11, 2022 Incidents (Counts Two, Four–Five,
Nine–Eleven).
On September 11, 2022, defendant and Karen got into another
argument after Karen found him in the house against her wishes. Karen
shouted at defendant to leave, and he grabbed her wrist, held her against the
wall, and told her he “couldn’t wait for [her] to die.” Defendant left the house
as Karen called 911.
Defendant returned later that day, kicking open a side door. Defendant
entered Karen’s bedroom and grabbed her phone from the bed. When Karen
tried to grab it back, defendant pushed her away, causing her to fall to the
ground. Karen’s husband yelled at defendant to stop his behavior, and
defendant left again and drove away, taking Karen’s phone with him. Karen
called 911 on another phone.
A responding deputy sheriff spotted defendant driving in the vicinity of
Karen’s house and attempted to stop him. Defendant accelerated away from
the deputy. The deputy, who was by this time joined by officers from the
Napa County Sheriff’s Office, Department of the California Highway Patrol
and Napa Police Department, engaged in an extended vehicle pursuit of
defendant that at times passed through a dense residential area and reached
speeds up to 100 miles per hour. Finally, the pursuit ended when the Napa
County deputy sheriffs executed a specialized maneuver whereby their
vehicle intentionally rammed defendant’s car. Defendant was arrested, and
his car was searched, resulting in the discovery of Karen’s phone and credit
cards, suspected methamphetamine, and a suspected methamphetamine
pipe.
II. Verdict, Sentencing and Appeal.
On December 2, 2022, the jury found defendant guilty as charged
except that, as to count five, the jury acquitted him of felony false
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imprisonment but found him guilty of the lesser included offense of
misdemeanor false imprisonment. In a bifurcated proceeding, the trial court
found the aggravating factors to be true. The trial court then sentenced
defendant to a total prison term of three years fourth months, consisting of 16
months for count one plus two years for count four. In addition, the court
imposed a concurrent three-year sentence for count two and a 16-month
sentence for count three, stayed pursuant to section 654. Defendant timely
appealed.
DISCUSSION
The only contested issue on appeal is whether the trial court
prejudicially erred by not giving a unanimity instruction to the jury in regard
to count one, the robbery committed on September 8, 2022. The remaining
issues are correctly conceded by the People and are discussed only briefly
after the unanimity instruction issue.
I. Contested Issue: Was a unanimity instruction required as to
count one?
In a criminal case, a jury verdict must be unanimous. (People v. Russo
(2001) 25 Cal.4th 1124, 1132.) “Additionally, the jury must agree
unanimously the defendant is guilty of a specific crime. [Citation.]
Therefore, cases have long held that when the evidence suggests more than
one discrete crime, either the prosecution must elect among the crimes or the
court must require the jury to agree on the same criminal act. [Citations.]”
(Ibid., italics omitted.) When the prosecution does not elect among crimes,
“[a] unanimity instruction is appropriate ‘when conviction on a single count
could be based on two or more discrete criminal events,’ but not ‘[when]
multiple theories or acts may form the basis of a guilty verdict on one discrete
criminal event.’ ” (Id. at pp. 1134–1135; accord, People v. Hernandez (2013)
217 Cal.App.4th 559, 569.)
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“ ‘ “Neither instruction nor election are [sic] required, however, if the
case falls within the continuous course of conduct exception.” ’ ” (People v.
Leonard (2014) 228 Cal.App.4th 465, 491.) This exception applies “ ‘ “when
the acts alleged are so closely connected as to form part of one continuing
transaction or course of criminal conduct,” ’ or ‘ “ ‘when the defendant offers
essentially the same defense to each of the acts, and there is no reasonable
basis for the jury to distinguish between them.’ [Citations.]” [Citation.]’
[Citations.] The justification for the exception is that there is no need for an
instruction when there is a single course of conduct because members of the
jury cannot distinguish between the separate acts. Further, the instruction
is unnecessary when the defendant proffers the same defense to multiple acts
because a guilty verdict indicates that the jury rejected the defendant’s
defense in toto.” (People v. Hernandez, supra, 217 Cal.App.4th at p. 572;
accord, People v. Fish (2024) 102 Cal.App.5th 730, 738 [failure to give
unanimity instruction is harmless error when “the record provides no
rational basis, by way of argument or evidence, for the jury to have
distinguished between the two acts offered in support of the crime”].)
Because our consideration of whether the trial court should have given
a particular jury instruction involves a mixed question of law and fact which
is “ ‘predominantly legal,’ ” we review de novo whether the specific instruction
was required. (People v. Hernandez, supra, 217 Cal.App.4th at p. 568.)
Defendant argues the unanimity instruction was required because the
evidence revealed two distinct takings on September 8, 2022, to wit, “the
initial taking of [Karen’s] purse, which Tregaskis immediately abandoned,
and the subsequent taking of the credit cards, which the evidence indicated
[he] must have retrieved after the purse and its contents ‘went flying’ . . . .”
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We reject defendant’s attempt to paint the taking of Karen’s purse and
the taking of her credit cards from within the purse as two distinct criminal
acts. The evidence demonstrates both acts occurred as part of a single
criminal incident on September 8, 2022, that cannot meaningfully be divided
by time, space or intention. Defendant grabbed Karen’s purse, including its
contents, while she locked herself in a bedroom and called 911. Shortly
thereafter, defendant left and Karen found most of the purse’s contents in
and around the house, but some of her credit cards were missing until police
found them in defendant’s car after he was arrested a few days later.
In closing arguments, the prosecutor made no attempt to distinguish
the two acts in discussing the robbery on September 8, 2022. Instead, the
prosecutor focused on the element of the robbery offense requiring evidence
that the defendant took the property through use of fear or force: “So that is
what I want you to focus on. When he took the purse. When he took the
credit cards, the phone on the first day. When he took the phone on the
second incident. Did he use force in doing that? . . . Did he use force when the
purse strap was broken? [¶] That, there, in and of itself, the vandalism,
proves that he used forced [sic] or fear to take the purse.” Defense counsel, in
turn, argued that, if the jury wanted to “hold him accountable of taking the
things from his mother,” it could find him guilty of the lesser included offense
of grand theft of person: “[B]ut to get there you have to first find Ryan not
guilty of the robberies.”
Under these circumstances, no juror unanimity instruction was
required, as there was no reasonable basis for the jury to distinguish
defendant’s taking the purse from his taking the credit cards contained
therein. (People v. Fish, supra, 102 Cal.App.5th at p. 738.)
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II. Conceded Issues.
The remaining issues raised by defendant and correctly conceded by
the People are as follows: (1) the evidence was insufficient to convict
defendant on count three, dissuading a witness; (2) defendant could not be
convicted of count nine, receiving stolen property, because he was convicted of
robbery of the same property (credit cards) in count one; (3) the concurrent
sentence on count eight, identity theft, should be stayed pursuant to section
654; and (3) the $287 AIDS education fee should be struck. We agree with
the parties’ positions and only briefly address each issue post.
A. Insufficient Evidence of Witness Dissuasion.
“Section 136.1 criminalizes trying to dissuade a victim from reporting a
crime.” (People v. Upsher (2007) 155 Cal.App.4th 1311, 1320.) Conviction of
this offense requires the jury to find the defendant knowingly and maliciously
tried to prevent or discourage a crime victim from making a report of that
victimization to law enforcement. (Id. at pp. 1318–1319.)
Consistently with section 136.1, the trial court instructed the jury as to
count three, dissuading a witness: “To prove that the defendant is guilty of
this crime, the People must prove that:
“1. The defendant prevented or discouraged Karen S[.] from making
a report that she was a victim of a crime to law enforcement;
“2. Karen S[.] was a crime victim;
“AND
“3. The defendant knew he was preventing or discouraging
Karen S[.] from reporting victimization and intended to do so.
“A person is a victim if there is reason to believe that a federal or state
crime is being or has been committed or attempted against him or her.”
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The prosecutor argued to the jury that the crime of dissuading a
witness happened on September 8, 2022, “basically during the robbery, right
before,” when Karen was angry that defendant was in the house and told him
that she was going to call the police, prompting defendant to grab her purse.
Following a struggle, the contents of Karen’s purse spilled out and she locked
herself in the bedroom and used another phone to call 911. She later found
her phone in the backyard.
During deliberations, the jury submitted a question on the dissuading
count that stated, “What crime was Karen S[.] a victim of? Violation of the
restraining order? Was it in effect[?]”
The court conferred with the attorneys, and the prosecutor stated that
the People “argued a trespass, that [defendant] wasn’t supposed to be there.”
The prosecutor also acknowledged the restraining order “hadn’t been served.
So a violation of the order was not our theory. Our theory is trespass . . . .”
After the conference, the trial court responded to the jury question as
follows: “The jury needs to decide if Ms. S[.] was a victim of a state or federal
crime. [¶] You did not receive any evidence regarding a violation of a
restraining order.”
On appeal, the parties agree there was no evidence defendant
committed a trespass on September 8, 2022, since he had lived in Karen’s
house for about 10 years and was thus a tenant at will. A tenancy at will
“may be terminated by the landlord’s giving notice in writing to the tenant
. . . to remove from the premises within a period of not less than 30 days.”
(Civ. Code, § 789.) Because there was no evidence that he was given 30 days’
written notice to vacate the house, as legally required, defendant was not a
trespasser and Karen was not the victim of a trespass for purposes of Penal
Code section 136.1. Accordingly, we reverse count three for lack of evidence.
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B. Defendant cannot be convicted of both robbery and
receiving stolen property.
Defendant contends and the People concede that count one, robbery,
and count nine, receiving stolen property, cannot both stand based on section
496’s prohibition on dual convictions for stealing and receiving the same
property. They are correct.
Section 496, subdivision (a) provides that “[a] principal in the actual
theft of the property may be convicted pursuant to this section. However, no
person may be convicted both pursuant to this section and of the theft of the
same property.”
Here, the record on appeal makes clear that defendant’s conviction on
count nine for receiving stolen property was based on his possession of the
same credit cards that he stole during the robbery charged in count one. The
trial court stayed defendant’s sentence on count nine pursuant to section 654.
We now hold that his conviction on count nine must be reversed.
C. The sentence on count eight should be stayed.
Defendant next contends and the People concede that in light of his
robbery conviction on count one, his concurrent sentence on count eight for
identity theft must be stayed pursuant to section 654. This is correct.
Section 654, subdivision (a) provides: “An act or omission that is
punishable in different ways by different provisions of law may be punished
under either of such provisions, but in no case shall the act or omission be
punished under more than one provision. An acquittal or conviction and
sentence under any one bars a prosecution for the same act or omission under
any other.”
“Whether a defendant may be subjected to multiple punishment under
section 654 requires a two-step inquiry, because the statutory reference to an
‘act or omission’ may include not only a discrete physical act but also a course
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of conduct encompassing several acts pursued with a single objective.
[Citation.] We first consider if the different crimes were completed by a
‘single physical act.’ [Citation.] If so, the defendant may not be punished
more than once for that act. Only if we conclude that the case involves more
than a single act—i.e., a course of conduct—do we then consider whether that
course of conduct reflects a single ‘ “intent and objective” ’ or multiple intents
and objectives.” (People v. Corpening (2016) 2 Cal.5th 307, 311.)
Here, defendant’s identity theft conviction and his September 8, 2022
robbery conviction were based on a single physical act, to wit, his possession
of the credit cards taken from his mother’s purse. As the People
acknowledge, there was no evidence that he took any action with these credit
cards, such as attempting to use or sell them, aside from merely possessing
them. Thus, under section 654, defendant could only be punished once for
that act, which requires that his sentence on count eight be stayed.
D. The AIDS education fee must be struck.
Lastly, we agree with the parties the $287 fee imposed for AIDS
education must be struck. The court imposed this fee as to count ten,
possession of a controlled substance in violation of Health and Safety Code
section 11377, subdivision (a). Subdivision (b) of this provision states in
relevant part: “The judge may assess a fine not to exceed seventy dollars
($70) against any person who violates subdivision (a), with the proceeds of
this fine to be used in accordance with Section 1463.23 of the Penal Code.”
(Health & Saf. Code, § 11377, subd. (b).) Penal Code section 1463.23,
however, was repealed effective January 1, 2018. (Stats. 2017, ch. 537, § 18.)
The parties correctly posit that the provision authorizing the AIDS
education fee (Health & Saf. Code, § 11377, subd. (b)) was impliedly repealed
in 2018, when the referenced statute (Pen. Code, § 1463.23) was actually
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repealed, since it is no longer possible for “the proceeds of this fine to be used
in accordance with Section 1463.23 of the Penal Code.” (Health & Saf. Code,
§ 11377, subd. (b).) Accordingly, the fee is struck.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court
with instructions to (1) vacate defendant’s convictions on counts three and
nine, (2) stay the sentence imposed on count eight, (3) strike the $287 AIDS
education fee, and (4) resentence defendant as to all counts in light of the
changed circumstances. (People v. Buycks, supra, 5 Cal.5th at p. 893.) In all
other regards, the judgment is affirmed.
Jackson, P. J.
WE CONCUR:
Burns, J.
Chou, J.
A166958/People v. Ryan Edward Tregaskis
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