Unreported / Non-Citable
Background
Andrew Alfrey was charged with multiple offenses arising from incidents on September 18, 28, and 29, 2022, involving his former girlfriend Beth Debonis and her son Bodie Salazar. The charges included burglary, robbery, driving a vehicle without consent, assault with a deadly weapon, dissuading a witness, and vandalism. Debonis died before trial, so her preliminary hearing testimony was admitted. The prosecution also introduced evidence of three prior domestic violence incidents and Alfrey's 2012 conviction for dissuading a witness.
A jury convicted Alfrey of petty theft, driving a vehicle without consent on September 18, dissuading a witness from reporting a crime on or about September 28 to 29, first degree residential burglary on September 29 with a person present, and felony vandalism. The jury acquitted him of several other charges. At a bench trial, the court found Alfrey had two prior strikes under the Three Strikes law. On March 3, 2025, the trial court sentenced Alfrey to consecutive 25-years-to-life terms on counts 5 and 6, with concurrent terms on the remaining counts.
The Court’s Holding
The Court of Appeal reversed Alfrey's conviction on count 2 for driving a vehicle without consent under Vehicle Code section 10851. The trial court gave two conflicting instructions: it preinstructed the jury on driving theft using the first alternative of CALCRIM No. 1820, then instructed after the close of evidence on posttheft driving but omitted the third element requiring that the driving occurred after a substantial break from the original theft. The Attorney General conceded the errors but argued they were harmless. The court disagreed, finding the evidence about how long Alfrey kept the vehicle was neither overwhelming nor uncontested. The conflicting instructions, combined with the absence of a unanimity instruction, also supported reversal because it was unclear the jury unanimously agreed on posttheft driving.
The court affirmed the judgment in all other respects. It rejected Alfrey's claims of instructional error as to count 5 for dissuading a witness, finding the jury understood the correct dates despite conflicting oral and written instructions, and that no unanimity instruction was required because the offense fell within the continuous conduct exception. The court also rejected claims regarding count 6 for burglary, CALCRIM No. 375, Three Strikes sentencing notice, section 654, Griffin error, and the denial of Alfrey's motion to reopen the evidence to testify after waiving that right.
Key Takeaways
- A trial court's failure to instruct on the substantial break element of posttheft driving under Vehicle Code section 10851 requires reversal when the evidence of a break is not overwhelming and uncontested.
- Conflicting instructions on alternative theories of a Vehicle Code section 10851 violation, without a unanimity instruction, can undermine confidence that the jury unanimously agreed on the theory of guilt.
- The continuous conduct exception to the unanimity instruction requirement applies to dissuading a witness under Penal Code section 136.1, subdivision (b)(1), because the offense focuses on an unlawful goal rather than particular acts.
- An information alleging prior strikes under the Three Strikes law provides adequate notice that the defendant is subject to Three Strikes sentencing on all eligible offenses, even if the information does not specify each count.
- A trial court does not abuse its discretion by denying a motion to reopen the evidence to allow the defendant to testify when the request comes after the defendant waived the right to testify, rested, and the court began instructing the jury.
Why It Matters
This decision reinforces the importance of accurate and complete jury instructions on the elements of Vehicle Code section 10851, particularly the distinction between driving theft and posttheft driving. It also clarifies that the continuous conduct exception applies to witness dissuasion and that Three Strikes allegations provide broad notice of sentencing exposure. The ruling demonstrates that even conceded instructional errors may be deemed harmless when the evidence is strong, but not when key elements are omitted and the evidence is ambiguous.