Opinion
B229470
01-23-2012
In re ALEXANDER C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER C., Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KJ34459)
APPEAL from an order of the Superior Court of Los Angeles County, Phyllis Shibata, Commissioner. Affirmed in part and reversed in part with directions.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.
Following an adjudication hearing, the juvenile court found that, between January 1 and November 15, 2009, appellant Alexander C., a minor, committed multiple acts of graffiti vandalism, with an aggregate amount of damage exceeding the felony threshold of $400. (Pen. Code, § 594, subd. (b)(1).) We conclude that aggregation was improper under the circumstances because there was no showing that the individual acts of vandalism were committed as part of a single overall plan or objective. Accordingly, we reverse and remand for resentencing.
Procedural History
A petition under Welfare and Institutions Code section 602 was filed on January 14, 2010, alleging that appellant committed two felony offenses of vandalism over $400, (Pen. Code, § 594, subd. (a); count 1), and damaging a prison or jail (Pen. Code, § 4600, subd. (a); count 2.) The petition was subsequently amended and count 2 was reduced to a misdemeanor.
Following an adjudication hearing, the court found the allegations true and sustained the petition. Appellant was declared a ward, and placed at home on probation under specified terms and conditions.
Factual History
Prosecution case
On the afternoon of November 16, 2009, Officer Kenneth Block of the West Covina Police Department, detained appellant at West Covina High School. Appellant was subsequently arrested, read his Miranda rights and taken to the police station. At trial, Officer Block testified he had spent several years assigned to anti-graffiti duty, and had spoken with suspects in graffiti cases on more than 2,000 occasions. Appellant told Officer Block he was part of the "135" tagging crew and his moniker was "Bic."
Officer Block ran "Bic" and "135" through a city-wide graffiti tracking system and got 25 hits. The hits were images of graffiti found around the city of West Covina between January 1, 2009 and November 15, 2009. Officer Block showed appellant 20-25 photos of graffiti featuring "Bic" or "135" from the graffiti tracker. Appellant admitted to having done 18 of the hits, all of which were done in an area near Azusa and Fairgrove Avenues, near appellant's home. He also told Officer Block that the dates on the photos were consistent with when he did the graffiti.
A formula used by the city to determine the value of graffiti damage, values anything smaller than 10 square feet at $100 and anything larger at $10 per square foot.
After appellant identified the photographs of the graffiti he had done, jailer Joel Martinez escorted him to jail and placed him alone on a holding bench. The bench contained no graffiti before appellant arrived. Martinez left to complete the booking process in another room, where he maintained video surveillance of appellant.
Martinez saw appellant make writing motions on the bench. When he returned to the holding area, appellant asked to use the restroom and left the area. While he was gone, Martinez saw that "Bic" had been scratched into the bench. Martinez notified Officer Block about the graffiti on the bench about 15-20 minutes after Officer Block left appellant in Martinez's custody.
Appellant was sitting a foot or two away from the etching when Officer Block examined the bench and saw "Bic" scratched into it. Before Officer Block said anything, appellant said, "'I'm sorry. I don't know what I was thinking.'" When Officer Block asked how he did it, appellant said he used the zipper on his sweater to carve into the paint on the bench.
Defense case
Appellant was removed from class on November 16, 2009 to talk to two police officers, one of whom was Officer Block. The officers accused him of being the tagger "Grox" or Grocks," which appellant denied. He did not say he had tagged anything, only that he knew taggers. Appellant was taken to the police station.
At the station, appellant was shown a paper with the name "Grox" or "Grocks" on it, and asked to explain it. About 30 minutes into the questioning, appellant was read his Miranda rights. Appellant believed he had an immediate right to get an attorney, but only if he could afford one, and did not fully understand his rights.
Officer Block told appellant that if he admitted to being the tagger "Bic," he could go home, and also told appellant they were looking for tagger "135." The officers also told appellant that if he did not admit what they asked, he would be charged with more serious felonies. He was told to sign various photographs of the "Bic" graffiti.
Appellant had never heard of "bic" or "135" before Officer Block mentioned those names to him. He saw the word "bic" on the jail bench before he sat down. He tried to move away from it, figuring he might be punished for that too. The surveillance video merely showed him fidgeting with the zipper on his sweater because he had needed to use the bathroom.
Appellant's father lived with appellant the first five years of appellant's life, from ages 15 to 17, and maintained regular contact with his son throughout his life. He testified that he believed appellant had suffered from slow development and poor academic problems all his life. His son did not always understand statements, even those to which he responded.
DISCUSSION
On appeal, the parties dispute whether there is sufficient evidence to support the finding that the valuation of damage from appellant's vandalism exceeded $400. We, however, have a more fundamental concern, namely the propriety, on these facts, of aggregating multiple individual acts of misdemeanor tagging—each causing less than $400 damage—into a single count to reach the $400 threshold required for felony vandalism. Appellant contends the trial court was not permitted to aggregate 18 discrete incidents of misdemeanor tagging occurring over an 11 month period to reach the $400 required for a single count of felony vandalism. We agree.
This issue was not briefed by the parties, so we requested their views on this matter under the provisions of Government Code section 68081.
In People v. Bailey (1961) 55 Cal.2d 514 (Bailey) the Supreme Court affirmed a felony grand theft conviction in a case involving multiple acts of petty theft, with the aggregate of the petty thefts totaling more than the statutory felony threshold (then $200). The court held that "[w]hether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan." (Id. at p. 519.)
The rule in Bailey, supra, 55 Cal.2d 514 for many years strictly limited to cases involving theft, was extended in In re Arthur V. (2008) 166 Cal.App.4th 61 (Arthur V.), the first case definitively to address whether separate instances of misdemeanor vandalism may be aggregated to constitute a single felony offense.
In Arthur V., for reasons discussed at length therein and which we need not repeat here, the court concluded "the rule announced in Bailey applies with equal force to the offense of vandalism." (Arthur V., supra, 166 Cal.App.4th at p. 67.) Arthur V. concluded that "multiple instances of misdemeanor vandalism can be aggregated to form a single felony, unless 'the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan.'" (Id. at p. 69, citing Bailey, supra, 55 Cal.2d at p. 519.) Arthur V. also observed that "aggregation would be improper where discrete criminal acts are separated by long stretches of time, such as where a defendant tagged a school bus and then, four months later, tagged an unrelated fire hydrant, each time causing $200 worth of damage." (Id. at p. 68.)
In Arthur V., the defendant and a group of juveniles accosted two people as they drove away from a shopping center. The defendant smashed the windshield of the victim's car, causing $150 worth of damage and, when the victim got out of the car, hit him in the face with a skateboard. As the victim ran away, he tried calling 911 on his cell phone. The defendant kicked the victim, causing him to drop and damage his phone, valued at $350. (Arthur V., supra, 166 Cal.App.4th at p. 65.) The court concluded that aggregation of the misdemeanor acts of vandalism was appropriate because:
"The damage to the windshield and cell phone occurred within a very brief time period, in the same approximate location, and constituted the victimization of the same person . . . who had been singled out for abuse by [defendant] and his associates. A reasonable fact finder could conclude from these facts that the aggregate damage to [the victim's] car and cell phone did not result from separate and distinct criminal acts, and was inflicted pursuant to a single general impulse, intention or plan." (Arthur V., supra, 166 Cal.App.4th at p. 69.)
Here, the acts of vandalism in question are separated by a far greater time span than those in Arthur V., which occurred within moments of one another. The record reflects that appellant's 18 admitted incidents of tagging of, among other seemingly unrelated things, walls, signs, poles, a bench and electrical boxes, took place over an 11 and one-half month period from January through mid-November 2009. Aggregation is improper if the acts of vandalism are discrete criminal acts committed on separate occasions. (Cf., In re David D. (1997) 52 Cal.App.4th 304, 309, 311 [concluding in dicta that aggregation of 34 instances of misdemeanor tagging would be inappropriate because "each tagging incident clearly represent[ed] a separate offense affecting a different victim"].) The record contains no expert evidence as to the motives or "intent" of taggers in general, nor any evidence of appellant's particular reasons or intent for his nearly yearlong tagging spree. Thus, we agree with appellant that it cannot be said with sufficient certainty that he performed each of 18 admitted acts of vandalism according to a single overall plan, impulse or with a sole objective in mind. Accordingly, the judgment aggregating the multiple discrete instances of misdemeanor vandalism into a single count of felony vandalism must be reversed.
Our decision regarding the impropriety of aggregation renders moot the parties' arguments regarding whether the evidentiary record is sufficient to support the aggregated value of appellant's 18 acts of vandalism.
--------
DISPOSITION
The finding in count 1 that appellant vandalized property exceeding $400 in value (felony vandalism) is vacated. The order aggregating the instances of misdemeanor vandalism occurring between January 1, 2009 and November 15, 2009 into a single instance of felony vandalism under Penal Code section 594, subdivision (a) is reversed. The matter is remanded for resentencing as to count 1 for misdemeanor vandalism. In all other respects, the order of wardship is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
MALLANO, P. J.
ROTHSCHILD, J.