Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court in Los Angeles County. Los Angeles County Super. Ct. No. BA296346 Craig E. Veals, Judge.
Carol Boyk, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
We affirm appellant Sergio Contreras’s convictions for vandalism and disobeying a court order. However, we reduce the vandalism conviction from a felony to a misdemeanor. We remand the case to the trial court to resentence Contreras.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant, a member of the Harpies gang, was caught spray painting black graffiti on a wall. The wall had other graffiti not painted by appellant. Police officer Rene Gonzalez saw appellant holding the can of paint. Appellant ran from the scene, but was later caught and identified by Officer Gonzalez. Gonzalez testified that he had known appellant from prior contacts. During cross-examination, Gonzalez acknowledged that his identification was based on appellant’s clothing, but then during redirect, Gonzalez testified that he recognized appellant as the same person he saw holding the can and painting the wall.
When he was caught, appellant had in his possession the tip of a spray paint can from a can of blue paint. Officer Jeremy Escamilla testified that it is common for persons painting graffiti to carry multiple bottle tips in order to alter the size of the lettering. Other members of the Harpies gang were with appellant when he was spray painting even though appellant had been served with an injunction restricting him from associating with members of the Harpies gang.
Paul Racs managed the graffiti abatement program for the City of Los Angeles. The city was invoiced $400 for painting the wall on which appellant wrote graffiti. The entire wall, approximately 600 square feet, was painted in order to make it a matching color. Racs testified “[w]hen our crews go out, we [are] required not to do patchwork on the wall but to paint the whole wall from corner to corner. Make it a matching color.” The $400 charge is based on contractors cost, liability insurance, and administrative costs. The city’s cost of managing the program is the same for painting a wall regardless of the size of the wall. However, contractors responsible for removing graffiti were paid on a monthly basis regardless of the amount of actual graffiti removed.
A jury convicted appellant of vandalism of $400 or more in violation of Penal Code section 594, subdivision (b)(1) and of disobeying a court order in violation of section 166, subdivision (a)(4). The jury found true that the vandalism was committed for the benefit of a gang pursuant to section 186.22, subdivision (b)(1)(A). The court sentenced appellant to the low term of 16 months for the vandalism conviction and a concurrent six-month term for conviction of violating of a court order. The court struck the section 186.22 gang enhancement for purposes of sentencing. The court found that appellant served 204 actual days in custody and should receive 102 days of good conduct work credit. Appellant timely appealed.
Undesignated statutory citations are to the Penal Code.
DISCUSSION
Appellant argues (1) the record lacks substantial evidence to support the jury finding that the amount of damage to the wall he painted was $400 and (2) the court erred in admitting evidence of the spray paint nozzle from the can of blue paint. The Attorney General disputes these contentions. The parties agree that the abstract of judgment does not correctly reflect the judgment imposed.
I. Substantial Evidence Does Not Support the Finding that the Amount of Damage Was $400
Section 594 establishes different penalties for vandalism dependent on the “amount of defacement, damage, or destruction.” If it is $400 or more the offense is a wobbler, i.e., it can be either a felony or a misdemeanor. (§ 594, subd. (b)(1).) If the damage is less than $400, the offense is a misdemeanor. (§ 594, subd. (b)(2)(A).) On appeal, appellant argues that the record lacks substantial evidence that the amount of damage was $400. As appellant correctly argues, evidence of the $400 amount is critical.
We review a challenge to the sufficiency of the evidence to determine whether substantial evidence in the record when considered in the light most favorable to the judgment supports the conviction. (People v. Perry (2007) 154 Cal.App.4th 1521, 1524.) We consider whether a reasonable jury could find guilt beyond a reasonable doubt. (Ibid.) As we explain, we conclude the record lacks substantial evidence that the amount of damage was $400.
Racs testified that the city was invoiced $400 to paint the wall and that this amount was based on various factors including administering the graffiti program, the contractor’s cost, and insurance coverage. However, no evidence was presented that these individual costs totaled $400. Although overall annual contractor’s costs were provided, no specific amount was provided for the costs involved in repairing the wall damaged by appellant. The prosecution had the burden to prove the $400 amount beyond a reasonable doubt and no evidence in the record supports the conclusion that a reasonable jury could have found that element beyond a reasonable doubt.
Cases in the context of restitution apply a different standard but are helpful in considering whether there was sufficient evidence of the $400 amount. In People v. Vournazos (1988) 198 Cal.App.3d 948, 958, the court found that a sum of $300 to repair a car was not supported by substantial evidence. “In ordering defendant to pay $2,180 in restitution, the trial court relied entirely on the recommendation of defendant’s probation officer who, in turn, derived the figure solely from [victim’s] statement of loss and his discussions with [victim]. Neither the statement nor the testimony of the probation officer established that the sum claimed by [victim] for loss of property was based on the replacement cost of the property. Further, there was no evidence that the sum of $300 claimed for repair of damage to the [property] represented the actual cost of the repair.” (Ibid.) In Vournazos, the victim provided a list of the items damaged and asserted values of repair costs. Disagreeing with Vournazos, in In re S. S. (1995) 37 Cal.App.4th 543, the victim provided a written itemization of losses and the court found that to be prima facie evidence of the value of the items (In re S. S., at p. 545, 547) and more recently in People v. Keichler (2005) 129 Cal.App.4th 1039, 1048, the court reached the same conclusion.
In ordering restitution, a trial court has broad discretion. (People v. Fortune (2005) 129 Cal.App.4th 790, 794.) The nature of the proof such as a sworn statement documenting costs and expenses may assist the court in exercising its discretion. (In re S. S., supra, 37 Cal.App.4th at p. 547, fn. 2.) “[A] hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution.” (People v. Keichler, supra, 129 Cal.App.4th at p. 1048.)
Here, the amount of damage is not a discretionary analysis but an element of the offense. The prosecution carried the burden of proof to establish each element of the offense. (Estelle v. McGuire (1991) 502 U.S. 62, 69-70.) The prosecution had to present something more than a standardized invoice to show that the amount of damage caused by appellant was $400. There had to be some evidence of the actual cost of repair since the prosecution was using that measure to assess the amount of damage. As appellant argues, the record lacks substantial evidence to support the felony vandalism conviction and the conviction must be reduced to misdemeanor vandalism.
II. The Case Must Be Remanded For Resentencing
The jury found true that the vandalism was committed for the benefit at the direction of or in association with a criminal street gang as defined in section 186.22, subdivision (b)(1)(a). The Attorney General argues that the section 186.22 finding elevates the offense to a felony regardless of the evidence of the amount of damage. In Robert L. v. Superior Court (2003) 30 Cal.4th 894, 897, 909, the Supreme Court held that section 186.22, subdivision (d) was an alternative penalty provision that applied to all misdemeanors and felonies. In contrast, section 186.22, subdivision (b)(1) applies only to felonies and where it applies subdivision (d) does not also apply. (People v. Arroyas (2002) 96 Cal.App.4th 1439.)
That subdivision provides: “Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of or in association with, any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail.”
A misdemeanor vandalism conviction may become a felony for sentencing purposes under section 186.22, subdivision (d). (People v. Arroyas, supra, 96 Cal.App.4th at p. 1444.) The issue is one of trial court discretion (ibid.) and should be considered by the trial court upon remand as appellant acknowledges. (See People v. Sanchez (1991) 230 Cal.App.3d 768, 772 [upon remand trial court may reconsider all sentencing choices].)
III. Evidence of the Spray Paint Tip Was Admissible
Over appellant’s objection, the court allowed the prosecutor to introduce evidence of a spray paint tip from a blue spray paint bottle found on appellant at the time he was arrested. Appellant argues that the trial court should have excluded the tip from the blue spray paint bottle. According to him, “the spray tip with blue paint had no connection to the charged offense of committing graffiti with black paint, and thus is not directly probative of guilt in the charged offense.”
Appellant’s argument ignores officer Escamilla’s testimony. According to Escamilla, it is common for taggers to carry more than one nozzle in order to alter the size of the letters. Therefore, the spray paint tip from the blue bottle was probative of the fact that appellant was the person tagging the wall and identity was a central question in the case. Relevant evidence includes all “evidence . . . having any tendency in reason to prove . . . any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Here, the evidence was relevant to appellant’s identity.
Appellant does not show that the evidence should have been excluded under Evidence Code section 352, which allows a court to exclude evidence if “its probative value is substantially by the probability that its admission will . . . create the substantial danger of undue prejudice . . . .” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 75.) Here the probative value -- that the evidence tended to identify appellant -- was not outweighed by any prejudice from the jury’s learning that appellant carried a spray paint tip. Evidence appellant carried a spray paint tip does not “ ‘unnecessarily play upon the emotions of the jurors.’ ” (People v. Zambrano (2007) 41 Cal.4th 1082, 1150.) Appellant shows no abuse of discretion in admitting the evidence. (See People v. Coffman and Marlow, supra,34 Cal.4th at p. 75 [we review the court’s ruling for abuse of discretion].)
Even assuming the court should have excluded the spray paint nozzle, appellant does not show this evidentiary error was prejudicial. Officer Contreras saw appellant painting the wall and identified appellant. While Gonzalez relied on appellant’s clothing in identifying him, he also testified that he knew appellant from prior contacts and recognized appellant as the person painting the wall. In light of this strong identification, it is not reasonably probable that appellant would have had a more favorable verdict absent the evidence of a spray paint tip from a bottle of blue spray paint. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III. Abstract of Judgment
The parties agree that the abstract of judgment should be corrected to reflect 204 days actual custody credits and 102 days good time/work credits, for a total of 306 presentence credits. The parties also agree that the minute order from the sentencing hearing should be corrected to reflect a six month concurrent sentence on count 2 instead of a 365-day sentence. This is consistent with the reporter’s transcript and it appears that the abstract of judgment contains typographical errors. This correction should be considered when Contreras is resentenced upon remand.
DISPOSITION
The vandalism conviction is reduced from a felony to a misdemeanor. As modified, the judgment is affirmed. The case is remanded to the trial court to resentence Contreras. After resentencing, the trial court should forward a copy of the new abstract of judgment to the appropriate prison authorities.
WE CONCUR: RUBIN, J., FLIER, J.