People v. Dupuis CA4/1

Filed 5/16/23 P. v. Dupuis CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080608
Plaintiff and Respondent,
v. (Super. Ct. No. SCE406489)
GERALD LEE DUPUIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Daniel Lamborn, Judge. Affirmed.
Gerald J. Miller, 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, Eric A.
Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
At 4:00 a.m. one morning in May 2021, Gerald Dupuis aka Gerald
Durvis1 (Dupuis) broke into an attached residential garage, created a
substantial mess inside it, stole a knife, and then doused the outside of the
house with lighter fluid. When the residents awoke, they confronted Dupuis
at gunpoint and called the police. Dupuis provided the responding officers
with a false name and date of birth. Throughout his interactions with the
residents and the officers, Dupuis frequently spoke incoherently, and one
officer believed Dupuis was under the influence of drugs.
A jury convicted Dupuis of first degree residential burglary (Pen.
Code2, § 459; count 1)3, attempted arson (§455; count 2), possession of
flammable material (§ 453, subd. (a); count 3), and giving false information to
a peace officer (§ 148.9, subd. (a); count 4). The trial court sentenced him to
four years and eight months in prison.
On appeal, Dupuis argues there is insufficient evidence he possessed
the specific intent necessary to support his convictions, and that the trial
court erroneously and prejudicially declined to instruct the jury that he had a
possible mental disorder that could negate the specific intent element of the
charged offenses. Viewing the evidence in the light most favorable to the jury
1 Although the People filed this action under the name “Gerald Lee
Durvis,” Appellant’s counsel informed the trial court that his true name is
Gerald Dupuis, and Appellant listed the same as his name on his notice of
appeal.
2 Further undesignated statutory references are to the Penal Code.
3 The jury also found true allegations that the burglary was of an
inhabited dwelling house (§ 460, subd. (a)) and that another person was
present in the residence during the burglary (§ 667.5, subd. (c)(21)).
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verdict, we conclude substantial evidence supports the jury’s finding that
Dupuis acted with the requisite specific intent in committing his crimes. We
further conclude that the evidence did not warrant instructing the jury on
mental impairment. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Kristy S. awoke at 4:00 a.m. one morning in May 2021 to let her dog
out to relieve himself in the backyard. The dog began barking and Kristy
looked out her front window to see Dupuis standing behind her father’s
pickup truck in the driveway, with the tailgate open, apparently reading a
bottle. Kristy’s father stored chainsaws, weedwhackers, and other tools in
the truck, but did not lock the tailgate and shell. He had recently purchased,
but not opened, a bottle of lighter fluid and left it in his truck.
Kristy panicked and ran down the hall to wake her fiancé, Nicholas M.
Nicholas retrieved a gun he kept in a locked box in the closet and they both
went out the front door and around to the driveway.
When they reached the front yard, they saw Dupuis spraying the house
with a bottle of lighter fluid. Kristy and Nicholas recognized the lighter fluid
by its smell. Nicholas shouted for Dupuis to drop the bottle and get on the
ground. Dupuis immediately dropped the bottle and sat on the curb. While
Nicholas pointed his gun at Dupuis, Kristy called the police. Kristy told the
operator, “I don’t know what’s wrong with him, [he’s] acting kind of funny.”
As they stood waiting for the police, Kristy noticed that a knife with a
mermaid on the handle that she normally kept on a shelf in the back of the
garage had fallen out of Dupuis’s pocket. Nicholas kicked it away from
Dupuis. Meanwhile, Kristy’s father, who lived next door, heard the noise and
came outside as well.
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Kristy then looked in her garage, which she described as “a disaster.”
The rollers of the main door were off their tracks, and her father noted that
the garage door sensors were broken. Kristy was certain she had closed the
garage door the night before. Her belongings, which normally were put away
in cabinets and on shelves, had either been thrown into the center of the
garage or moved. She found all her laundry supplies in a sink, soaked with
water. When she opened the washing machine, she discovered that the hinge
was broken and it was full of drywall powder and bug repellent, along with
other substances from her garage. The dryer hinges were also broken.
A large sheet of plastic had been placed over the door to the backyard
and the refrigerator had been moved to block the door. All of the food from
the refrigerator was scattered around the garage floor and a plastic container
filled with children’s goggles and nuts and bolts from her father’s backyard
had been added to the refrigerator. She found an empty beer bottle on the
floor and a large, empty vodka bottle behind the dryer near a puddle that
smelled like vodka. She and Nicholas also discovered a pool of gasoline on
the garage floor from a nearby gasoline canister Nicholas used for his
motorcycle.
The bottom lock on the door leading from the garage to the kitchen had
been picked, and Kristy found a knife she did not recognize on the step below.
Kristy had locked both that lock and the deadbolt above it the night before,
but only the deadbolt remained locked.
When police arrived, Dupuis picked up the mermaid knife and threw it
as an officer approached. One officer then searched Dupuis while the other
questioned him. In his pockets, Dupuis had three lighters, a book of matches,
a small screwdriver, a flashlight, a carabiner, some money, trash, and an air
compressor attachment. The officers collected as evidence the lighter fluid
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bottle, which stated on the label: “Expert grill lighter fluid. Easy to start,
clean burning, danger, combustible.”
Dupuis first identified himself as “Brian Dupuis” and falsely said his
birthday was February 20. He then provided a birthday of November 21.
(Dupuis stipulated his true date of birth is August 1.) After identifying him
from the photo identification in his pocket, the officers learned he had an
active arrest warrant. An officer noted that Dupuis was sweating, had urine
in the crotch of his pants, had uncontrollable body movements, and was
rambling unintelligibly. Bodyworn camera footage from one of the officers
showed that, during questioning, Dupuis said, “I work for the atmosphere,
bro. I don’t have drugs. I don’t have needles. I don’t have weapons.” As to
why he was at the property, he first said he was “sleepwalking or something”
and later said, “I don’t even know how I got here.”
At trial, an officer testified that throughout their contact with him,
Dupuis made unintelligible statements, had difficultly responding to
questions, and was often incoherent. Another officer described symptoms
common to methamphetamine users, testified that he encountered people
under the influence of methamphetamine almost every day, and said he
suspected Dupuis of being under the influence of drugs. However, the officers
did not test Dupuis for drugs or alcohol. Counsel stipulated that Dupuis was
in possession of spice, a synthetic cannabis, upon arrest.
Kristy opined that it would have taken three to four hours to make this
great a mess, and she said it took her and Nicholas two days to clean it up.
The mixture in the washing machine was still wet when they discovered it, so
they were able to scoop it out before it hardened and clean the machine.
Although the hinges remained broken on both the washer and dryer, they
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were operable. Her father repaired the garage door and found the new bottle
of lighter fluid from his truck was missing after the incident.
DISCUSSION
I.
Substantial Evidence Supports Dupuis’s Convictions
Dupuis’s first claim on appeal is that the evidence was insufficient to
demonstrate he had the requisite specific intent to support his convictions.
Pointing to testimony and bodyworn camera footage of his irrational behavior
and incoherent speech, Dupuis argues his mental state during the incident
was “inconclusive” at best and that the evidence shows he did not have any
intent whatsoever. Accordingly, he contends the People failed to prove
beyond a reasonable doubt that he had the specific intent required by each of
the four counts. We disagree.
Our consideration of this claim is governed by the following principles.
When considering a challenge to the sufficiency of evidence supporting a
conviction, we “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. Johnson (1980) 26 Cal.3d 557, 578 (Johnson); see also
Jackson v. Virginia (1979) 443 U.S. 307, 319.) “We do not reweigh the
evidence, resolve conflicts in the evidence, or reevaluate the credibility of
witnesses.” (People v. Jacobo (2019) 37 Cal.App.5th 32, 42 (Jacobo); People v.
Ochoa (1993) 6 Cal.4th 1199, 1206.) The question is not whether we believe
the evidence established the defendant’s guilt beyond a reasonable doubt, but
whether “ ‘ “any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” ’ ” (People v. Kelly (1990) 51 Cal.3d
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931, 956.) “Reversal on this ground is unwarranted unless it appears ‘that
upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The primary thrust of Dupuis’s argument is that his bizarre behavior
and incoherent statements created a reasonable inference that he lacked the
requisite specific intent and that, when faced with two reasonable inferences,
one of which pointed to innocence, the jury was required to acquit. On this
basis, Dupuis asserts that the trial court should have granted his motion to
dismiss the charges, and that we should reverse the convictions.
While Dupuis is correct that “ ‘ “it is the jury’s duty to acquit a
defendant if it finds the circumstantial evidence susceptible of two reasonable
interpretations, one of which suggests guilt and the other innocence” ’ ”
(People v. Manibusan (2013) 58 Cal.4th 40, 87), once the jury has decided
that the defendant is guilty beyond a reasonable doubt, the reviewing court
may not reweigh the evidence or reevaluate the credibility of witnesses
(Jacobo, supra, 37 Cal.App.5th at p. 42). “ ‘Where the circumstances
reasonably justify the trier of fact’s findings, a reviewing court’s conclusion
the circumstances might also reasonably be reconciled with a contrary
finding does not warrant the judgment’s reversal.’ ” (Manibusan, at p. 87.) It
is through this lens that we evaluate whether the direct and circumstantial
evidence presented at trial reasonably justified the jury’s conclusion that
Dupuis demonstrated the specific intent necessary for conviction on each
count.
For count 1, the trial court properly instructed the jury that to find
Dupuis guilty of first degree burglary, it had to find that he entered an
inhabited dwelling house with the “inten[t] to commit theft or felony
vandalism.” (See People v. Ramirez (2006) 39 Cal.4th 398, 463 [“A burglary is
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committed if the defendant enters a residence or other enumerated structure
‘with intent to commit grand or petit larceny or any felony’ ”].) The jury did
not have to agree as to which crime he intended to commit at the time of
entry. Nor did they have to find that Dupuis actually committed theft or
felony vandalism after entry.
The court further instructed the jury that theft by larceny (§ 484)
required proof that Dupuis took possession of property owned by someone
else, without the owner’s consent, and with the intent to deprive the owner of
the property permanently. The jury also had to find that “[t]he defendant
moved the property, even a small distance, and kept it for any period of time,
however brief.” The vandalism instruction (§ 594) compelled the People to
prove Dupuis “maliciously damaged or destroyed real or personal property”4
and did not own the property. While property of any value satisfied the theft
crime, the amount of damage caused by vandalism had to be at least $400.
Having reviewed the record as a whole in the light most favorable to
the judgment below (Johnson, supra, 26 Cal.3d at p. 578), we conclude that
the trial evidence of specific intent for count 1 was sufficient to satisfy the
deferential substantial evidence standard of review. “ ‘ “While the existence
of the specific intent charged at the time of entering a building is necessary to
constitute burglary in order to sustain a conviction, this element is rarely
susceptible of direct proof and must usually be inferred from all of the facts
and circumstances disclosed by the evidence.” ’ ” (People v. Holt (1997) 15
Cal.4th 619, 669; People v. Johnson (2019) 32 Cal.App.5th 26, 58.)
Nonetheless, “ ‘[s]ubstantial evidence includes circumstantial evidence and
4 Pursuant to the vandalism instruction “[s]omeone acts maliciously
when he or she intentionally does a wrongful act or when he or she acts with
the unlawful intent to annoy or injure someone else.”
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the reasonable inferences flowing therefrom’ [citation], and ‘ “circumstantial
evidence is as sufficient as direct evidence to support a conviction.” ’ ” (People
v. Myles (2023) 89 Cal.App.5th 711, 739 (Myles).)
The People argued at trial that Dupuis’s intent to burglarize the home
is demonstrated by the fact that he pried open the garage door, did so under
the cover of darkness, and brought tools such as a screwdriver and a
flashlight. They contend his intent to commit theft specifically is evident
from the fact that he picked one of the locks leading to the interior of the
house and obscured the window on the back door of the garage to hide his
actions. In the People’s view, the reason Dupuis then poured out the contents
of nearly every container in the garage is because he was going through
everything looking to steal whatever items he could find. And, given that he
ultimately took Kristy’s mermaid knife, credible evidence supports this
interpretation.
The defense offered a different view of the evidence. Defense counsel
argued in her closing statement that the fact that Dupuis left the lights on,
stayed in the garage for several hours, and presumably made a great deal of
noise indicated that he was “not all there.” In particular, she submitted that
dumping out every single liquid he could find demonstrated that Dupuis did
not have a plan or intent at all. But the jury may reasonably have disagreed
with this summation of the facts given that Dupuis did not dump the lighter
fluid on the ground, but rather sprayed it all over the side of the house.
Even if “the evidence of [the] defendant’s guilt . . . is not
overwhelming,” we may not disturb the verdict on appeal “ ‘ “[w]hen the
evidence justifies a reasonable inference of felonious intent.” ’ ” (People v.
Cain (1995) 10 Cal.4th 1, 47.) On this record, we conclude the jury could
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reasonably have rejected the defense argument and concluded Dupuis had
the specific intent to commit theft when he entered the garage.
The record also contained credible evidence that Dupuis entered the
home intending to vandalize it. This, again, required a finding that he
intentionally did a wrongful act or intended to annoy or injure someone else.
(§ 594.) In this case, Dupuis poured drywall powder into the washing
machine and mixed it with liquids that activated the powder and caused it to
begin solidifying. Although Kristy testified she discovered the mess in time
to scoop it out and clean the drum before it hardened and completely
destroyed the washing machine, she indicated that it took her a long time to
clean. A jury could reasonably conclude this was done with the intent to
annoy the owner. Dupuis also cracked the door hinges on both the washer
and the dryer and, although they are still usable, Kristy estimated it would
cost “a couple thousand dollars” to replace both. Thus, while Dupuis may not
have succeeded in destroying Kristy’s washer due to her quick response, a
jury could find that his actions in mixing the drywall powder with liquid
within the washer evinced a specific intent to vandalize property within the
home. (See People v. Allen (1999) 21 Cal.4th 846, 863, fn. 18 [“entry with the
proscribed intent . . . constitutes the completed crime of burglary ‘regardless
of whether . . . any felony or theft actually is committed’ ”].) Accordingly, we
conclude sufficient evidence supported the jury’s finding that Dupuis entered
the home with the specific intent necessary to affirm the burglary conviction.
As for the attempted arson in count 2 (§ 455), the court instructed the
jury that to find Dupuis guilty of the charge, it must find that he “willfully
and maliciously” “place[d] any flammable, explosive, or combustible material
or device in or around [the structure or property], with the intent to set fire to
it.” In this case, Dupuis sprayed lighter fluid all over the side of an inhabited
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home and was found to have three lighters and a book of matches in his
pocket. The jury could reasonably infer that Dupuis understood what the
bottle contained because its label stated: “Expert grill lighter fluid. Easy to
start, clean burning, danger, combustible.” And Kristy testified that he stood
and looked at the bottle before spraying it. As discussed above, he also
specifically doused the house with the lighter fluid as opposed to just
dumping it on the ground with some of the other fluids in the garage.
Collectively, this constitutes credible evidence based upon which a reasonable
trier of fact could find the defendant guilty of attempted arson beyond a
reasonable doubt. (Johnson, supra, 26 Cal.3d at p. 578.)
The same is true for count 3, possession of an incendiary device or
flammable material. As instructed, the jury had to find that Dupuis
possessed an incendiary device and “willfully and maliciously intended to use
the material or device to set fire to or burn a structure or property.” Again,
“ ‘[i]ntent is rarely susceptible of direct proof and usually must be inferred
from the facts and circumstances surrounding the offense.’ ” (People v.
Johnson, supra, 32 Cal.App.5th at p. 58.) There is no dispute Dupuis
possessed incendiary devices; namely, three lighters and a book of matches.
When coupled with his actions of apparently reading the lighter fluid bottle
and then spraying it onto the house, a strong inference arises that Dupuis
intended to set fire to the home. Though circumstantial, this evidence is
sufficiently substantial to support the conviction. (See Myles, supra, 89
Cal.App.5th at p. 739.)
Finally, we turn to count 4, giving false information to a peace officer.
The specific intent element of this crime required that, when falsely
identifying himself to a peace officer who was conducting a lawful detention
or arrest, Dupuis “intended to evade . . . proper identification of the
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defendant by the . . . investigating peace officer.” The People presented
bodyworn camera footage showing Dupuis identifying himself as “Brian
Dupuis” and claiming he had his brother’s identification on him. He then
gave two different birthdates, neither of which was true. Given that the
officers subsequently determined that Dupuis had an active arrest warrant,
this evidence supports the logical inference urged by the prosecution that
Dupuis lied about his identity to evade arrest. (See People v. Maury (2003)
30 Cal.4th 342, 396 [“An appellate court must accept logical inferences that
the jury might have drawn from the circumstantial evidence”].) On this
basis, we conclude a reasonable trier of fact could have found Dupuis guilty of
giving false information to a peace officer beyond a reasonable doubt.
(Johnson, supra, 26 Cal.3d at p. 578.)
In addition to the evidence supporting conviction on each of the counts,
we find additional evidence in the record refuting Dupuis’s overarching
contention that he was so impaired by drugs or mental illness that he was
unable to form any of the requisite intents. For example, although both
officers testified that Dupuis made unintelligible statements and one officer
indicated he believed Dupuis was under the influence of methamphetamine,
Dupuis still had the wherewithal to answer the questions asked and
volunteer relevant information such as “I don’t have drugs” and “I don’t have
weapons.” His subsequent statement, “I wasn’t in the property, I didn’t do
any crime,” further supports a reasonable inference that he was capable of
understanding he had done something wrong and specifically tried to avoid
being held accountable. The fact that he threw the stolen mermaid knife
away as officers approached also supports this inference. Accordingly, we
reject Dupuis’s sufficiency of the evidence challenge to all four counts.
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II.
The Trial Court Was Not Required to Instruct with CALCRIM No. 3428
Dupuis’s second claim is that the trial court erroneously and
prejudicially declined to instruct the jury that he had a possible mental
disorder that negated the specific intent element of the charged offenses. We
independently review challenges based on a trial court’s failure to instruct on
a defense. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) Having done
so, we conclude the court did not err.
The trial originally was scheduled for August 2021, but the court
vacated it the month before and suspended proceedings pursuant to section
1368 so that Dupuis could undergo a mental competency examination. In
February 2022, the court found Dupuis mentally competent to stand trial and
reinstated the proceedings. No evidence related to this examination, or any
subsequent diagnoses, was presented to the jury.
Dupuis’s counsel requested that the court instruct the jury on mental
impairment to negate the specific intent element of the charged offense
(CALCRIM No. 3428). CALCRIM No. 3428 instructs, in relevant part, as
follows: “You have heard evidence that the defendant may have suffered
from a mental (disease[,]/ [or] defect[,]/ [or] disorder). You may consider this
evidence only for the limited purpose of deciding whether, at the time of the
charged crime, the defendant acted [or failed to act] with the intent or mental
state required for that crime.”
The People objected, arguing that the instruction was inappropriate
because the evidence before the jury did not establish that Dupuis had been
diagnosed with a mental illness. In response, the defense pointed to evidence
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from multiple witnesses that Dupuis was unintelligible and incoherent at the
time of the incident and that police did not drug test him.
The court acknowledged that evidence had been presented consistent
with the conclusion that Dupuis had been under the influence. But it
concluded the jury had not heard substantial evidence showing that these
same symptoms indicated that Dupuis had a mental disorder, defect, or
disease. Further, in reading the use notes for CALCRIM No. 3428, the court
noted that they discussed expert testimony, which was not offered in this
case. The court denied the defense’s request for the instruction on this basis.
CALCRIM No. 3428 “is a pinpoint instruction that must be given only if
requested by the defendant, and only if substantial evidence supports the
defense theory that defendant’s mental disease or disorder affected the
formation of the relevant intent or mental state. [Citation.] Also, expert
medical opinion testimony is necessary to establish that a defendant suffered
from a mental disease, mental defect, or mental disorder within the meaning
of CALCRIM No. 3428, because jurors cannot make such a determination
from common experience.” (People v. Larsen (2012) 205 Cal.App.4th 810, 824
(Larsen).)
Here, Dupuis did not offer expert testimony regarding any mental
disease, defect, or disorder, nor did he introduce any other evidence that he
suffered from a specific mental disorder or impairment at the time of the
offenses. Although the court initially questioned his mental competency,
Dupuis was declared competent to stand trial and no evidence regarding the
examination or resultant findings in connection with the section 1368
proceedings was presented to the jury. The only evidence of unusual
behavior before the jury was Kristy’s testimony that Dupuis was “acting kind
of funny,” the police officers’ testimony that Dupuis was unintelligible, and
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bodyworn camera footage showing Dupuis claiming to “work for the
atmosphere.” However, no evidence tied this behavior to a mental
impairment of any kind.
In determining whether instruction is warranted, “ ‘the test is not
whether any evidence is presented, no matter how weak. Instead, the jury
must be instructed when there is evidence that “deserve[s] consideration by
the jury, i.e., ‘evidence from which a jury composed of reasonable [people]
could have concluded’ ” ’ that the specific facts supporting the instruction
existed.” (Larsen, supra, 205 Cal.App.4th at p. 824.) Absent expert
testimony that Dupuis even suffered from a mental disorder, no specific facts
supported the instruction. Given this record, we conclude that the trial court
did not err in finding that no substantial evidence supported instructing the
jury on mental impairment. Because we find no legal error, we need not
analyze prejudice.
DISPOSITION
The judgment is affirmed.
DO, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
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