Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. PA063504 Barbara M. Scheper, Judge.
Benjamin Owens, 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, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
A jury convicted Alex Ochoa of two counts of felony vandalism committed for the benefit of a street gang, and one count of resisting an officer. Ochoa appeals, arguing that the evidence was insufficient to establish that the vandalism that was the subject of each count caused more than $400 in damage, and that the trial court erred in imposing consecutive sentences on the vandalism counts. We affirm the judgment as modified and remand for resentencing.
BACKGROUND
An amended information charged Ochoa with two counts of felony vandalism causing damage over $400 to the sidewalks (count 1) and the walls (count 2) of neighboring apartment buildings, in violation of Penal Code section 594, subdivision (a), and one count of resisting an officer in violation of section 69. The information alleged that the vandalism offenses were committed for the benefit of a criminal street gang under section 186.22, subdivision (b)(1)(A). The information also alleged that Ochoa had four previous felony convictions, and that he did not remain free from custody for a period of five years following his last conviction, under sections 667.5, subdivision (b) and 1203, subdivision (e)(4).
A second amended information corrected the date of an alleged strike prior conviction but does not appear in the record.
All subsequent statutory references are to the Penal Code, unless otherwise indicated.
Ochoa pleaded not guilty. During his jury trial, he admitted the prior conviction allegations. On July 20, 2009, the jury found Ochoa guilty on all counts and found true the gang allegation. On July 24, 2009, the trial court sentenced Ochoa to consecutive terms on all counts and an additional year for the prison prior, for a total of eleven years and eight months in state prison, and ordered Ochoa to pay fees, assessments, and restitution. Ochoa filed a timely notice of appeal.
FACTS
I. Evidence at trial
A. The arrest
Los Angeles Police Department Officer Jon Hanania testified that at 1:20 a.m. on January 19, 2009, he and his partner Officer Gaiser responded to a vandalism-in-progress radio call from an apartment building at 8549 Willis Avenue in Panorama City. Officer Hanania saw two men in front of 8549 Willis look in the police car’s direction and begin to flee on foot. One of the men was Ochoa, and he ran inside an apartment complex two doors away, 8619 Willis. The officers apprehended the other man, Noel Rodriguez, who had run down the sidewalk. Rodriguez had fresh, grayish paint on his hands; it was sticky and shiny.
The officers heard a loud banging, like the sound of a metal gate, and saw Ochoa jump over the fence in front of 8619 Willis and begin to walk away “nonchalant[ly].” They drove after Ochoa, stopped the car, got out, and identified themselves as police officers. Ochoa ran back into 8619 Willis. Officer Hanania ran after Ochoa, who climbed over a fence in back of the apartment complex and into a neighboring elementary school. Backup officers arrived and were searching for Ochoa when Officer Hanania saw him climb back over the fence and ordered Ochoa to come down and put his hands up. Ochoa climbed back into the elementary school.
Officer Hanania and another officer climbed over the wall and chased Ochoa through the elementary school. As they closed in on him, Ochoa said, “‘Fuck you guys. Fine. I give up, ’” and the officers ordered him to drop to his knees, placed him on his stomach, and handcuffed him. Ochoa yelled “‘Hit me. I have a lawyer. I will sue you guys, ’” and continued to kick and scream obscenities. The officers calmed him down, took him to the police car, and obtained his information. Officer Hanania noticed Ochoa’s tattoos, and saw silver paint on Ochoa’s hands like the paint on Rodriguez’s hands.
The officers took Ochoa and Rodriguez to the police station for booking, beginning with questioning by the watch commander. Ochoa told Rodriguez “‘Tell them the police beat you up, ’” and Rodriguez began to hold his chest and say that it hurt. As Ochoa became more belligerent and shouted obscenities, the watch commander told Officer Hanania to take Ochoa into a holding cell. Officer Hanania took Ochoa’s arm, and Ochoa jerked away, lunged into the wall, and said, “‘Look, he is beating me. He is beating me.’” Another officer took Ochoa’s other arm, and a third officer tried to calm Ochoa down and photograph his tattoos. Ochoa flashed a gang sign (making a “‘B’” sign for the Blythe Street gang), too quickly for a photograph.
There was testimony at trial that Ochoa had Blythe Street tattoos. Officer Scott Anderson testified as an expert on the Blythe Street gang, which had 275 members, identified itself with tagging, used hand signs, and engaged in drug sales, shootings, drive-by’s and assaults. Willis Street was within the gang’s territory. Three felony convictions of gang members were admitted. Officer Anderson opined that Ochoa was an active member of Blythe Street, with the gang names “‘Malo’” and “‘Stranger.’”
Ochoa began to taunt and swear at the officers, who put him against the wall. Ochoa kicked Officer Hanania in the shin, and then elbowed him in the chin, as the officers were putting him into a cell. After the cell door closed, Ochoa began to scream and charge the door, banging his head 8 to 10 times on the door and continuing to swear.
B. The vandalism
While Ochoa and Diaz were in the police vehicles, Officer Hanania looked at the graffiti. The front walls of the neighboring apartment complexes at 8549 and 8609 Willis were each spray painted in silver paint with a “‘roll call’” of names affiliated with Blythe Street. Similar gang-related graffiti was on the sidewalks in front of each apartment building. All the graffiti looked fresh, and the paint was all silver, like the paint on Ochoa’s hands.
The property manager of 8549 Willis testified that he saw the graffiti on the building and the sidewalk. The sidewalk was about 20 feet away from the front of the building. He first saw the graffiti sometime in January. The wall had since been painted over.
The manager of 8609 Willis testified that she checked the apartment building daily for graffiti, and noticed graffiti on the building the morning of January 19, 2009. It was subsequently removed.
Weiss Investment’s maintenance supervisor testified that the company owned both properties. In January 2009, he became aware of the graffiti, and as usual, sent out workers to clear it up the same day he learned of it. It would cost about “200 something dollars” for each building. He sent the police a letter saying the cost was about $450 for both buildings. The maintenance supervisor also testified that the workers removed all the graffiti the same day, and he was not sure whether his workers removed any additional graffiti. Usually the workers repainted the entire wall, but he could tell from a photograph that they just patched the area, so they didn’t do the work they were supposed to do. His $450 estimate was based on “nothing in particular [¶]... [¶] an everyday, average thing.” Patching, rather than repainting the entire wall, would not take an entire day. The paint cost $120 for five gallons. Although he couldn’t remember how many workers he sent to clean up the graffiti, in this case one would be enough, paid from $11 to $15 an hour for an eight-hour day, whether they needed the full eight hours or not. The two jobs would take eight hours.
A graffiti abatement officer with the City of Los Angeles Board of Public Works testified that he oversaw graffiti removal, among other job duties including acting as a court liaison. When a city sidewalk is painted with graffiti, a contractor will apply a chemical solution to loosen the paint, do a high pressure wash, and if necessary use a sandblaster. The sidewalks in front of 8549 and 8609 Willis were city property. The day of his testimony, the graffiti abatement officer had observed graffiti on the sidewalk in front of the two apartment buildings, which appeared to be two different acts of graffiti rather than one continuous act. Although he could tell that some graffiti had been removed, there was still a lot of graffiti left. The city had no record of graffiti removal by a city crew from the sidewalk in front of 8609 Willis, but the flat rate for removal would be $400, “a flat rate based on the surface that has been tagged and the type of graffiti removal necessary to remove the tag.” The flat rate for removal of the sidewalk graffiti in front of 8549 would also be $400. The city would incur the cost twice, because the sidewalks were completely separate locations, for a total of $800. The abatement officer had no record of whether the city attempted to remove the sidewalk graffiti drawn by Ochoa.
On January 20, 2009, the city cleaned up graffiti on the buildings at both 8549 and 8609 Willis at a cost of $450 per location. After the removal of graffiti, each removal is written on a log sheet, and after it gets back to the office, the office staff inputs it into the computer for an end-of-the-month report of all graffiti abatement. The $450 cost was arrived at “based on the type of surface that has been tagged, on the type of graffiti removal procedure that is required. Because it is private property, it entails a little more time on the part of the contractor because they have to look for the person responsible for the property to sign a waiver of release so that our contractors can enter the property to do the removal.” The graffiti abatement officer did not know whether there was a signed waiver in this case, but “there should have been.” The city would remove graffiti on private property if it was visible from the public right of way. The graffiti abatement officer did not know whether the city had removed the same or different graffiti than the graffiti removed by the property managers. It was possible that the buildings’ owner removed the graffiti, and then on January 20, the city removed different graffiti. The graffiti abatement officer could not say whether the graffiti removed on January 20 was Ochoa’s graffiti, and to his knowledge no photograph had been taken of the graffiti removed by the city on that date.
The city’s flat rates were listed on a cost sheet and had been used for years, before the graffiti abatement officer arrived at the office. The costs were not based on “the worst possible surface that you could remove a tag from and the most expensive technique that is required.” The rates were determined years before he began working in the office, and were based on multiple factors, including vehicle costs, maintenance costs, personnel costs, insurance costs, administrative costs, costs of preparation and removal, gasoline costs, and travel costs. “Costs or the prices that we charge are not for the removal of graffiti at any one particular location. Those are the costs to run a city-wide graffiti removal program, and all of those different factors include but are not limited to those things.”
The parties stipulated that Weiss Properties management received a request to remove graffiti from 8549 Willis on January 5, 2009 and removal was completed on January 22, 2009 of any and all graffiti existing on that date. With regard to 8609 Willis, management received a request to remove graffiti on January 14, 2009 and completed the removal of all existing graffiti on the building in the afternoon of January 19, 2009.
C. Defense case
Ochoa’s sister, Gabriela Ochoa, testified that on January 18, 2009 Ochoa was at a barbecue at their mother’s house in Panorama City. Ochoa left on foot at around 9:00 p.m. with Danny Vasquez, saying a girl had called him. The girl was a friend of the family’s who lived on Willis. Ochoa called later and asked Gabriela to pick him up, and when she arrived she saw that he was in a police car. He called again early in the morning and told her he had been arrested. At the barbecue, Ochoa had been painting with her son using black and gray markers.
Daniel Vazquez testified that he left the barbecue with Ochoa and went to 8619 Willis, where Vazquez stayed outside. Vazquez saw Rodriguez arrive and start writing graffiti on the wall next door.
Ochoa testified that he left the barbecue with Vazquez because his friend Wendy called and asked for help with her computer. He left Wendy’s around 1:00 a.m. after calling his sister. As he was walking outside, Officer Hanania jumped over a wall from the elementary school, told him to stop, handcuffed him and interrogated him. The officers put him into a police car with Rodriguez, who he had never seen before. Ochoa thought Officer Hanania had been chasing someone and believed Officer Hanania mistakenly assumed Ochoa was the person he was chasing. Ochoa was very upset at being arrested for something he did not do. Ochoa had been a Blythe Street member for 10 years, but had not been an active member for five years, and had been working with Home Boy Industries and getting his tattoos removed. He had been drawing with Sharpies at the barbecue and thought he probably got some on his hands.
DISCUSSION
I. There was not sufficient evidence to establish that the property damage on each count of vandalism was over $400.
“The offense of vandalism... can be either a felony or misdemeanor depending on the value of property at issue.” (In re Arthur V. (2008) 166 Cal.App.4th 61, 68.) Section 594, subdivision (b)(1) defines felony vandalism as defacement, damage or destruction in an amount of $400 or more. Conversely, defacement, damage or destruction of property in an amount less than $400 is a misdemeanor. (§ 594, subd. (b)(2)(A).)
Ochoa argues that because the evidence was insufficient to show that the damage he caused was over $400 for either vandalism count, both his vandalism convictions should be reduced to misdemeanors. Our role in reviewing the sufficiency of the evidence is limited. We review “‘the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and or solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Tafoya (2007) 42 Cal.4th 147, 170.) We do not reweigh the evidence or redetermine the credibility of the witnesses (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), and we draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) “If the circumstances reasonably justify the [finder of fact’s] findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.]” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
The evidence that the graffiti caused over $400 in damage to the two sidewalks (count 1) was as follows. A city graffiti abatement officer testified that the flat rate for removal of sidewalk graffiti (using a chemical solution, a high pressure wash, and in some cases sandblasting) was $400 for each location, for a total of $800. This amount included the cost of vehicle and equipment maintenance, vehicles and insurance, personnel and insurance, administrative costs, prep and removal time, travel, and gasoline. The amount was based on a flat rate listed on a cost sheet that had been used before the abatement officer began working in the office. The graffiti abatement officer had seen graffiti similar to that drawn by Ochoa on the two sidewalks the day of his testimony. Although there were signs of graffiti removal some was still left, and he had no record of any removal by the city of the graffiti in this case.
This was not sufficient evidence to support the conclusion that Ochoa’s sidewalk graffiti caused damage in excess of $400. Instead, the evidence established only that the city arbitrarily placed a uniform cost of $400 on any sidewalk removal of any graffiti, and the graffiti abatement officer stated that the $400 figure was “not for the removal of graffiti at any one particular location.” (Italics added.) The $400 was a number arrived at before he began working in the graffiti abatement office and included all the costs of running a city-wide graffiti removal program. Coincidentally or not, the amount was equal to that required to make Ochoa’s vandalism a felony. By the witness’s own testimony, the $400 figure was not particularized to the damage caused by Ochoa’s graffiti, and so it cannot serve as evidence to establish that Ochoa was guilty of a felony because “the amount of defacement... is four hundred dollars ($400) or more.” (§ 594, subd. (b)(1).)
The evidence was also insufficient to establish that the graffiti caused over $400 in damage to the walls (count 2). A maintenance supervisor for the company that owned both apartment buildings testified that he sent the police a letter stating that the cost for painting over the graffiti was about $450 for both buildings. The parties stipulated that the management company removed graffiti on January 22, 2009 (8549 Willis) and January 19, 2009 (8609 Willis). The maintenance supervisor also testified, however, that his estimate was based on “nothing in particular, ” and when he was pressed for details, he stated that the cost of paint was $120, one worker was enough for both buildings, and eight hours at an hourly rate of up to $15 would be enough. That calculation results in a total of $240 for both buildings. Further, the maintenance supervisor testified that he could tell the workers had merely patched over the area marked by the graffiti, which would take less time, rather than repainting the entire wall. The testimony of the maintenance supervisor was not evidence supporting a conclusion that Ochoa’s defacement caused damage of $400 or more.
The graffiti abatement officer with the city testified that the city removed graffiti from both buildings on January 20, 2009, at a cost of $450 for each location. The flat rate was higher than for sidewalk removal, because the contractors had to find the property owner and get a release before they could enter private property to do the graffiti removal, but the abatement officer did not know whether there was a waiver in this case. This flat rate of $450, like the rate for sidewalk graffiti removal, was not sufficient evidence to support the conclusion that Ochoa caused damage of over $400 to the two apartment buildings. Instead, it was a uniform rate that took into account all the costs of the graffiti removal program, and was not in any way particularized to the damage caused by Ochoa’s act of vandalism. The city’s cost-spreading, flat rate cannot serve as evidence that Ochoa’s defacement of the buildings caused damage of $400 or more.
As there is no substantial evidence in the record to support the conclusion that Ochoa’s vandalism of the sidewalks (count 1) and the buildings (count 2) each caused damage of over $400, a reasonable jury could not have found that element of felony vandalism beyond a reasonable doubt. Ochoa’s convictions on count 1 and count 2 must be reduced to misdemeanor vandalism under section 594 subdivision (b)(2)(A).
Section 186.22, subdivision (d), 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.”
Ochoa also argues that his trial counsel should have objected to the testimony of the city graffiti abatement officer regarding the cost of graffiti removal, on the grounds that it was hearsay and improper opinion testimony. We need not address that argument, because we find the testimony insufficient to support Ochoa’s conviction of felony vandalism.
II. The imposition of consecutive sentences on counts 1 and 2 violated section 654.
Ochoa’s sentence of 11 years and eight months was computed as follows: seven years on count 1, consisting of the two year middle term, doubled for the strike prior, and an additional consecutive three year term for the gang enhancement; a consecutive term of two years and four months for count 2, consisting of one-third of the middle term of two years, doubled for the strike prior, and one third of the three year middle term for the gang enhancement; and, on count 3 (resisting arrest) a consecutive term of one year and four months, consisting of one third of the middle term of two years doubled for the strike prior; and an additional year for the prior prison term. Ochoa does not challenge the calculation of the sentence. He argues, however, that the trial court violated section 654 when it imposed consecutive sentences on the vandalism counts (count 1 and count 2).
Defense counsel did not object to the sentence on this ground. Nevertheless, a trial court’s failure to stay a sentence when section 654 applies results in an unauthorized sentence, and thus no trial objection is necessary for an appellate challenge. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” “Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.... Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591–592.) “Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (People v. Perez (1979) 23 Cal.3d 545, 551.) “[M]ultiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm, ” and separate sentences may be imposed on offenses that are divisible in time. (People v. Felix (2001) 92 Cal.App.4th 905, 915.) The question whether Ochoa held more than one criminal objective is one of fact for the trial court, and we will uphold the trial court’s conclusion if supported by any substantial evidence. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) “‘The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments, ] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’” (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Ochoa was convicted of two counts of felony vandalism, for defacing with graffiti the sidewalks in front of two neighboring apartment buildings (count 1) and the front walls of the buildings (count 2). He argues that all his acts of vandalism had the single intent and objective of benefitting the Blythe Street gang, which was the prosecution’s theory at trial.
We discern no substantial evidence to support the trial court’s implicit finding that Ochoa’s intent and objective in defacing the sidewalks was separate from his intent and objective in defacing the walls of the apartment buildings. All of the vandalism occurred on the evening of January 19, 2009. There was no testimony concerning the sequence in which the vandalism occurred. Officer Hanania, who saw Ochoa run away from 8549 Willis when he arrived on the scene, testified that all the graffiti was similar, and the paint on all the graffiti looked fresh when he looked at it after Ochoa was in the police car. The only reasonable inference is that Ochoa drew all the graffiti at around the same time, with the intent to benefit the Blythe Street gang.
The prosecution argues that Ochoa had time to reflect between acts of vandalism because (as reflected in photographs that were exhibits at trial) the walls were separated from the sidewalks by a grassy area, and at one of the buildings (8609 Willis) a fence, so that “in order for appellant to vandalize both the walls and the sidewalk, he had to stop spraying the paint on one of the surfaces, walk several feet across a stretch of grass or garden, climb over a fence at 8609 Willis, and then begin spraying the paint on the other surface.” This is not evidence that supports a conclusion that the defacing of the building walls had a separate intent and objective from the defacing of the sidewalks. It establishes only that the acts were separate offenses, not that they could be punished separately because Ochoa held more than one criminal objective. The minimal time involved in moving from the walls to the sidewalks is not substantial evidence to support a conclusion that Ochoa’s defacement was other than “a course of conduct indivisible in time” and directed to one objective.
The cases cited by the prosecution support a finding that Ochoa’s vandalism was an indivisible course of conduct with a single objective. In People v. Felix, supra, 92 Cal.App.4th at p. 915, two threats two hours apart on the same day were not one transaction because they were made at different times and different places, and against different groups of victims. In People v. Kwok (1998) 63 Cal.App.4th 1236, 1257, a course of conduct was divisible when the defendant entered a residence to obtain a key and entered again to assault the victim nine days later, as distinguished from making repeated entries in rapid succession. In People v. Gaio (2000) 81 Cal.App.4th 919, 935–936, three bribes had different objectives, and occurred months apart. And in People v. Perry (2007) 154 Cal.App.4th 1521, 1527, defendant’s convictions for robbery and vehicular burglary were part of a single course of conduct and had a single objective, the theft of a car stereo, when the defendant first aggressively displayed a screwdriver or pick and then entered the car to steal the stereo.
We conclude that upon resentencing, Ochoa’s sentence on one of the vandalism counts must be stayed. We therefore need not consider whether consecutive sentences were required under section 667, subdivision (c)(6).
DISPOSITION
The vandalism convictions are reduced from felonies to misdemeanors. As so modified, the judgment is affirmed. The case is remanded to the trial court to resentence Ochoa, staying one of the sentences on the misdemeanor counts. After resentencing, the trial court is to forward a copy of the new abstract of judgment to the appropriate prison authorities.
We concur: MALLANO, P. J., ROTHSCHILD, J.