APPEAL from a judgment of the Superior Court of San Diego County, Michael D. Wellington, Judge. (Super. Ct. No. SCD213670)
The opinion of the court was delivered by: Aaron, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Affirmed in part; reversed in part; remanded for resentencing.
A jury found Jon William Quick guilty of stalking (count 1) (Pen. Code, § 646.9, subd. (a));*fn1 shooting at an inhabited dwelling (count 245, subd. (a)(1 (§ 594, subds. ( (§ 246); assault with a deadly weapon (count 3) (§ ; vandalism causing damage less than $400 (count 4) , (b)(2)(A)); possessing or igniting a destructive device (count 5) (§ 12303.3); arson (count 6) (§ 451, subd. (d)); two counts of vandalism causing damage greater than $400 (counts 7 & 8) (§ 594, subds. (a), (b)(1)); and hit-and-run driving (count 9) (Veh. Code, § 20002, subd. (a)). The jury also found that Quick was armed with a firearm (§ 12022, subd. (a)(1)) and personally used a deadly weapon (§ 12022, subd. (b)(1)) in the commission of count 1; and that Quick personally used a firearm (§ 12022.5, subd. (a)) in the commission of counts 1 and 3. Prior to trial, Quick admitted that he had suffered a prior conviction that qualified as a serious felony prior (§ 667, subd. (a)(1)), a strike prior (§§ 667, subds. (b)-(i), 1170.12, 668), and a prison prior (§ 667.5, subd. (b)). The trial court sentenced Quick to an aggregate term of 19 years in prison.
On appeal, Quick contends that the trial court erred in failing to provide a unanimity instruction on the stalking charge (count 1) (§ 646.9, subd. (a)). We conclude that any error in failing to provide such an instruction was harmless beyond a reasonable doubt. The parties also raise several claims of sentencing error. The People claim that the trial court imposed an unauthorized sentence by striking the punishment for the section 12022.5, subdivision (a)(1) firearm enhancement on count 1. Quick concedes the error. Quick contends that the trial court erred in staying, rather than striking, the prison prior sentence enhancement (§ 667.5, subd. (b)). Quick also contends that neither the minute order nor the abstract of judgment conform to the trial court's oral pronouncement of sentence on certain counts. The People concede these errors. We vacate the sentence, remand the matter for resentencing, and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Quick and T.C. began dating in October 2006, and the two began to live together approximately three or four months after that. T.C.'s son, T.C.'s roommate Terry A., and Terry A.'s daughter, also lived in the residence. During the middle of March 2008, T.C. asked Quick to move out because the two had been fighting and arguing frequently. Quick moved out of the residence at the end of March.
1. Count 8 (vandalism causing damage greater than $400) and
count 9 (hit-and-run driving)
After Quick moved out, he continued to call and send text messages to T.C. regularly. T.C. estimated that Quick sometimes called her more than 20 times a day, and said that Quick would also send her more than 20 text messages a day. Occasionally, T.C. would respond to Quick's calls and messages, and the two would often argue. Quick wanted to know whether T.C. was romantically involved with anyone. Quick would unexpectedly appear at T.C.'s residence on occasion.
On April 20, Quick came to T.C.'s residence and requested that she return some personal items that Quick had purchased for her. T.C. gave Quick a slow cooker, some clothes, and a wardrobe. Quick ripped the doors off the wardrobe, and threw the wardrobe doors and the slow cooker into a nearby canyon. Quick placed the clothes on T.C.'s car and urinated on the clothes. Quick then got into his car, backed his car into T.C.'s car, honked his horn, and drove away. Quick caused approximately $2,800 worth of damage to T.C.'s car.
2. Count 5 (possessing or igniting a destructive device), count 6
(arson), and count 7 (vandalism causing damage greater than $400)
On April 26, in the early afternoon, Quick came to T.C.'s residence and knocked on her bedroom window. T.C. did not want to speak with Quick, because he made her nervous. T.C. went to get her roommate Terry A., and Terry A. spoke with Quick for about an hour. During their conversation, Quick told Terry A. that T.C. should go to her mother's house that evening, and said that he was not responsible for what might happen if T.C. did not leave her house. Later that afternoon, T.C. received a message from Quick telling her that she needed to go to her mother's house. T.C. was frightened because she did not know what would happen next. Approximately an hour later, T.C. received a voice message from Quick in which he said something like, "You haven't left yet." Based on this comment, T.C. was concerned that Quick was watching her.
At approximately 9:00 p.m. that evening, T.C. heard a loud boom coming from her bedroom. T.C., her son, Terry A., and one of Terry A.'s friends ran to T.C.'s bedroom. T.C. saw that her bedroom window was broken, and that there was a fire in the room. On a couch, T.C. saw a bottle that contained liquid. There was a cloth sticking out of the bottle. T.C. threw the bottle back out of the window. Police later determined that the bottle was made of glass, and that it contained gasoline and a partially burned wick. The day after the incident, Quick sent T.C. a text message that said, "I hope you slept well last night."
3. Count 4 (vandalism causing damage less than $400)
On May 13, in the late afternoon, T.C. and her son heard a sound outside their residence. T.C., her son, and a friend of the family went outside the residence to investigate, but did not see anything. Shortly thereafter, T.C.'s son and another family friend located Quick's car parked nearby. T.C.'s son called T.C. on her cell phone. T.C. went to Quick's car. The group remained in the area where Quick's car was parked for about 30 minutes to see whether Quick would return to his car. Quick did not return. The group went back to T.C.'s residence. When they arrived at the residence, T.C.'s son and the family friend saw some large concrete slabs in the backyard. T.C.'s son and the friend began to throw the slabs into some bushes where they suspected Quick was hiding in an attempt to "scare him out." Quick did not emerge from the bushes. At approximately 2:00 ...