Filed 7/17/17 In re Moses T. CA4/3



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re MOSES T., a Person Coming Under the Juvenile Court Law.


THE PEOPLE,

Plaintiff and Respondent,

v.

MOSES T.,

Defendant and Appellant.


G053613

(Super. Ct. No. 16DL0609)

O P I N I O N
Appeal from an order of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton, and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

A juvenile court found true allegations that Moses T. (minor) committed one count of felony vandalism (Pen. Code, § 594, subds. (a), (b)(1)). The court declared him a ward of the court and ordered him to perform 100 hours of community service. On appeal, minor contends the court erred in aggregating damage from multiple acts of graffiti to arrive at an amount exceeding the felony threshold of $400. We disagree and affirm the order.
FACTS
While on routine patrol in a marked vehicle one evening, Tustin Police Officer Luis Garcia and his partner observed minor spray painting graffiti on a public wall adjacent to the roadway. Another male standing nearby appeared to be acting as a “lookout.” As Garcia stopped his patrol car next to the curb a short distance away, the two males began to run. Garcia and his partner caught up to them and took them into custody.
Minor’s hands were covered in black spray paint, and Garcia’s partner recovered a used spray paint can containing black paint from nearby. Garcia inspected the graffiti minor had been spraying. The letters spelled the word “SEKO,” and the black paint used was still fresh.
Garcia transported minor back to the police station and read him his Miranda rights, which minor indicated he understood. Minor voluntarily agreed to talk to Officer Garcia. In response to questioning, minor stated “SEKO” was his nickname and identified the other male that he was with as Danny. He admitted to spray painting the wall that Garcia had observed, and said Danny was acting as a lookout while he did it. He also disclosed they had painted graffiti at more than one location that night; he stated that he, himself, had tagged approximately three to four locations. Minor explained he and Danny were on a “mission” that night to vandalize various areas by spray painting graffiti. They shared the spray paint can, passing it back and forth, with one tagging while the other acted as a lookout. Minor provided Garcia with the location of some of the other graffiti they did that night.
Following up on the information minor provided, Garcia and his partner drove to the locations minor had mentioned—roughly within a one square mile area of the City of Tustin (City)—to try to locate the other instances of graffiti. The officers found multiple locations with the word “SEKO” in fresh black paint. At some of the locations, other freshly painted graffiti was located within a few feet of the word “SEKO,” including the words “ATMOS” and “SCOPE,” and the “@” symbol.
The City provided pictures of the graffiti to its contractor that cleans up vandalism around the City. In addition to removing the graffiti personally observed by Garcia, the contractor located and removed additional instances of black spray paint graffiti with the words “SEKO,” “SCOPE,” and “ATMOS,” as well as the “@” symbol. These additional instances of graffiti were photographed and documented, and the contractor provided the information to the City. For each instance, the City received a separate invoice listing the cost of removal. In total, the contractor removed 15 instances of graffiti that were believed to be linked to minor. With the exception of one, the removal cost was $37 per location, resulting in a total bill paid by the City of $592.
Pursuant to Welfare and Institutions Code section 602, a one-count petition alleged minor, who was then 17 years old, had committed felony vandalism by defacing with graffiti property owned by the City, causing damage to the property in an amount over $400 (Pen. Code, § 594, subds. (a), (b)(1)). At the jurisdictional hearing, Garcia and a City code enforcement officer charged with supervising graffiti cleanup testified on behalf of the People. In addition, audio of Garcia’s police station interview of minor was played, and photographs of the graffiti, along with the associated cleanup invoices, were admitted into evidence.
Minor testified and confirmed his nickname was “SEKO.” He admitted to having tagged before, including on the night he was arrested, and stated the purpose of his graffiti is to make his name visible and create public awareness of it. He also ultimately confessed to having tagged, or participated in the tagging of, nearly all 15 instances of graffiti in question.
Having admitted to the vandalism, minor’s defense to the felony charge was that many of the instances were done in the days or weeks prior to his arrest, and one was done months prior. On cross-examination, minor acknowledged he understood if he could sufficiently separate out some of the incidents of graffiti so the aggregate damage amounts fell below $400, he might be able to avoid the felony charge.
Following closing arguments, it was clear to the juvenile court the key issues were (1) which of the 15 instances of graffiti could be linked to minor, and (2) whether it was proper to aggregate the damage associated with each of those instances for purposes of determining whether the $400 felony threshold was met. As for the first issue, the court doubted minor’s involvement in a few of the instances of graffiti; it found minor should be held responsible for 12 of the 15 of them. With respect to the second issue, the court concluded it was appropriate to aggregate the damages associated with each instance because it found they were all connected to “a general intent, a general impulse, [and] a general plan.” Because the total damages were in excess of $400, the court found true beyond a reasonable doubt the petition’s allegations of felony vandalism. The court declared minor a ward of the court and ordered him to perform 100 hours of community service and pay restitution. Minor timely appealed.
DISCUSSION
Minor’s challenge is focused on the juvenile court’s determination it was proper to aggregate the damages associated with the 12 incidents of graffiti. He argues it was error, as a matter of law, to aggregate the damages because the vandalism occurred on different days, was located in different places, and involved different victims. We disagree.
Penal Code section 594 prohibits vandalism, which is defined as maliciously defacing with graffiti (or other specified material), damaging, or destroying any real or personal property that is not one’s own. It may be punished as a felony “[i]f the amount of defacement, damage, or destruction is four hundred dollars ($400) or more . . . .” (Pen. Code, § 594, subd. (b)(1).) Damage of less than $400 is punishable solely as a misdemeanor. (Pen. Code, § 594, subd. (b)(2).)
Contrary to minor’s assertion, the issue here is not one of first impression. Case law has addressed the issue left open by the statute of whether and when arguably “separate” instances of vandalism may be aggregated and charged as a felony notwithstanding the fact they would only amount to misdemeanors if considered separately. The general rule is that when a defendant commits multiple acts of vandalism, they may be aggregated and charged as a single felony count “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.’” (In re Arthur V. (2008) 166 Cal.App.4th 61, 69 (Arthur V.), quoting People v. Bailey (1961) 55 Cal.2d 514, 519 (Bailey); see also People v. Carrasco (2012) 209 Cal.App.4th 715, 720-721 (Carrasco).)
“[T]he question of ‘[w]hether a series of wrongful acts constitutes a single offense or multiple offenses’ requires a fact-specific inquiry that depends on an evaluation of the defendant’s intent. [Citation.] Such an inquiry is appropriately left to the factfinder in the first instance.” (Arthur V., supra, 166 Cal.App.4th at p. 69.) In performing the analysis, whether there is a single victim or there are multiple victims, whether the vandalism occurred at a single location or at a variety of locations, and whether the vandalism occurred on a single day or over the course of a longer length of time, is not necessarily determinative. (Id. at pp. 68-69, fn. 4; Carrasco, supra, 209 Cal.App.4th at pp. 720-721.) The focus is on whether “the evidence discloses one general intent or separate and distinct intents.” (Bailey, supra, 55 Cal.2d at p. 519.) On appeal, we will affirm the juvenile court’s conclusion so long as it is supported by substantial evidence. (Arthur V., supra, 166 Cal.App.4th at p. 69.)
Here, substantial evidence supports the court’s determination minor’s acts were not separate and distinct from one another, but rather were committed pursuant to “a general intent, a general impulse, [and] a general plan.” Minor admitted he and Danny were on a “mission” the night they were arrested to spray paint their nicknames in various locations and on property that was not their own. Their purpose in doing so was to make it visible to the public and create awareness of their nicknames. This common underlying intent, along with the fact all the graffiti locations were within a two-square mile area of the City, were the same black color and same style, and were mostly completed on the night of minor’s arrest, is sufficient to support the juvenile court’s conclusion. (Arthur V., supra, 166 Cal.App.4th at p. 69.)
DISPOSITION
The order is affirmed.



O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



THOMPSON, J.