In re Robert L.
Filed 8/6/13 In re Robert L. CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re ROBERT L., a Person
Coming Under the Juvenile Court Law.
B244586
(Los Angeles
County
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT L.,
Defendant and Appellant.
Super. Ct.
No. KJ36392)
APPEAL from
an order of the Superior Court
of
County.
Phyllis Shibata, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 2.) Reversed.
Elana
Goldstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Analee J.
Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
>
Robert L. appeals from
an order placing him on probation without wardship after the
alleging he had committed misdemeanor vandalism. He contends the evidence is insufficient to
support the finding. We reverse.
PROCEDURAL BACKGROUND
In March
2011, Robert L., then 13 years old, lived in the B and I Group Home in the City
of Pomona. Robert caused a disturbance in the communal
kitchen, and police were summoned.
Thereafter, a delinquency petition
was filed charging Robert with misdemeanor vandalism. The petition specifically alleged Robert “did
unlawfully and maliciously damage and destroy real and personal property, to
wit, CARPET, FLOORS AND WALLS not his/her own, belonging to B & I Group
Home†in violation of Penal Code section 594, subdivision (a).
At the
jurisdiction hearing, Renee Hudson, the group home facilities manager,
testified that Robert had thrown food around in the kitchen and made verbal
threats on March 16, 2011. The prosecutor asked Hudson,
“What did you have that was damaged?†Hudson
answered, “The kitchen counter, the floor, the floors [sic], and a lot of - -
most of the food was destroyed.†The
prosecutor then inquired, “Okay. And did
it cost money to fix what [Robert] had done?â€
Hudson answered, “Yes.†The prosecutor asked whether the cost was
less than $400, and Hudson replied
that it was.
On cross
examination, Hudson testified the
kitchen cabinet “had some destruction on it[;]†“[the cabinet] was destroyed by
some food items that was [sic] thrown around,†but then stated that all food
items on the cabinet were removed by wiping the cabinet. Hudson
described the food items as “seasoning stuff†and other food from the cabinets
and the refrigerator. According to Hudson,
the food items thrown on the kitchen cabinet and floor were subsequently
cleaned up.
At the
close of the People’s evidence, the juvenile court denied a defense motion to
dismiss the allegation for insufficient evidence pursuant to Welfare and
Institutions Code section 701.1. Robert
neither testified nor presented other evidence in his defense.
After argument by counsel, the juvenile court sustained
the petition and found Robert to be a person described by Welfare and
Institutions Code section 602. At the
disposition hearing, without declaring Robert a ward of the court, the juvenile
court placed him on probation for six months pursuant to Welfare and
Institutions Code section 725, subdivision (a).
Robert appealed. (
583, 587-590.)
1.
Standard
of Review
The
same standard governs review of the
sufficiency of evidence in juvenile
cases as in adult criminal
determine whether any rational trier of fact could have found the essential
elements of the crime or special circumstances beyond a reasonable doubt. [Citation.]
The record must disclose substantial evidence to support the
verdict—i.e., evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] In applying this test, we review the evidence
in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced
from the evidence. [Citation.] ‘Conflicts and even testimony [that] is
subject to justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial
evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears
“that upon no hypothesis whatever is there sufficient substantial evidence to
supportâ€â€™ the jury’s verdict.†(
357; see In re
Matthew A. (2008) 165 Cal.App.4th 537, 540.)
2.
Finding of Vandalism
To commit vandalism within the
meaning of Penal Code section 594, an individual must maliciously deface with
graffiti or other inscribed material, damage or destroy any real or personal
property not his or her own. (Pen. Code, § 594, subd. (a).) Here, the juvenile
court found true the allegation that Robert committed vandalism, and further
found that the destruction or damage amounted to less than $ 400 in violation
of Penal Code section 594, subdivision (b)(2)(A).
The
petition alleged that Robert had damaged and destroyed the carpet, floors and
walls of the group home. However, no
evidence was presented demonstrating that Robert damaged or destroyed either
the carpet or the walls. As for the
floors, the facilities manager testified
that the only issue as to the floor was that Robert had tossed food, which was
then mopped off the tile floor. Robert
argues on appeal, as he did before the juvenile court, that because the
food-covered floor was easily restored to its original condition by cleaning,
the prosecution failed to prove Robert’s conduct resulted in damage. Robert acknowledges the statute does not
contemplate permanent adverse effects to the particular property. Nonetheless, he maintains there still must be
some actual physical harm to the property, which did not occur here, to support
a finding of vandalism.
There is no
statutory definition of the word “damage†in the context of vandalism. Giving the words their ordinary meaning, and
in the absence of ambiguity, we assume the plain meaning of those words govern. (Day v.
City of Fontana (2001) 25 Cal.4th 268, 272; see also Smith v. Superior Court (2006) 39 Cal.4th 77, 83.) According to the Oxford English Dictionary
(2013 U.S. version) the primary meaning of the word damage, as a transitive
verb, is “to inflict physical harm on (something) so as to impair its value,
usefulness, or normal function.†(Oxford
English Dict., http://oxforddictionaries.com.) Not only does the definition
lack an element of permanence, it also extends to the loss of any normal use or
function resulting from the physical
harm. There is, however, no evidence
the food-covered floor resulted in any loss of use or function. While there was testimony that food was
destroyed, the record failed to show whether the less than $400 spent to “fix
what Robert had done†related solely to the cost of that food. The allegations were specific but there were
no charging allegations related to that food, as would be required to sustain
the petition on these factual findings.
See In re Robert G. (1982) 31
Cal.3d 437, 445 [basis for petition must be specifically alleged, or
necessarily included within alleged offense].
Because
the People submitted no evidence probative of the vandalism alleged, the jurisdictional
finding cannot stand.
The jurisdiction order is reversed.
ZELON,
J.
I concur:
WOODS,
J.
>
PERLUSS, P. J., Concurring.
I agree the People failed to prove
Robert L. committed the offense alleged in the delinquency petition.
vandalism within the meaning of Penal Code section 594, subdivision (a), can be
committed by one who maliciously befouls a room—that is, with the unlawful
intent to annoy or injure another
name="_ftnref2" title="">[2]
if the resulting mess can be mopped or wiped up.
Section 594, subdivision (a),
provides in part, “Every person who maliciously commits any of the following
acts with respect to any real or personal property not his or her own, in cases
other than those specified by state law, is guilty of vandalism: [¶] (1) Defaces with
graffiti or other inscribed material.
[¶] (2) Damages. [¶] (3) Destroys.†An act of vandalism does not require proof of
permanent damage or injury. (Cf.
941, 944 [to “deface†as an element of vandalism does not incorporate an
element of permanence; “a marring of the surface [of a glass window] is no less
a defacement because it is more easily removedâ€].) As Justice Zelon explains, using the ordinary
meaning of the undefined verb “damages†within the context of section 594, to
constitute damage there need be only a temporary impairment of the normal use
or function of the property involved.
(See, e.g., Oxford English Dict.
Dictionary.com http://dictionary.reference.com /browse/damage [August 6,
2013].)
If there was evidence the house manager had spent
several hours cleaning and tidying the kitchen or if she had hired an outside
crew to do the work, there would be no question that vandalism had been
proved. Or if Robert had smeared feces
on the kitchen cabinets and floor rather than throwing food from the refrigerator
and scattering seasonings, requiring the use of disinfectant in addition to
whatever the group home’s normal cleaning routine might be, vandalism would
surely be evident. While the cost of
clean-up is relevant to whether the offense was a felony or a misdemeanor
(compare § 594, subd. (b)(1) [felony if amount of defacement, damage
or destruction is $400 or more] with § 594, subd. (b)(2) [misdemeanor
if amount is less than $400]), and the unpleasantness of the clean-up effort
may be important to our sense of fairness in pursuing criminal charges,
malicious action that creates a cleanable mess is vandalism or it is not. Accordingly, if the evidence had established
that Robert’s outburst disrupted or interfered with the normal use of the
kitchen in any way, until that room was restored to its original condition, its
functionality was necessarily impaired; and vandalism proved.
This commonsense interpretation of
the statutory language is reinforced by the evolution of Welfare and
Institutions Code section 742.16, a provision closely related to section
594. In 1979 former section 594,
subdivision (a), provided simply, “Every person who maliciously injures or
destroys any real or personal property not his own, in cases otherwise than
those specified in this code, is guilty of vandalism.†(Stats. 1977, ch. 165, § 8, p.
642.) A separate statute, former
section 594.5, subdivision (a), provided, “Any person who, without the
consent of the owner, willfully defaces, by paint or any other liquid, the
property of another is guilty of a misdemeanor . . . .†(Stats. 1974, ch. 340, § 2,
p. 671.) Former section 594.5,
subdivision (b), authorized the court as a condition of probation for any
person found guilty of defacing property to require the defendant to “wash,
paint, or repair the defaced property, or otherwise make restitution to the
property owner.†(Ibid.)
In 1979 the two provisions were
combined in section 594, which proscribed specified forms of graffiti as well
as the malicious damage or destruction of property. (Stats. 1979, ch. 200, § 1, p.
445.) In addition, the newly revised
statute incorporated and expanded the probation condition provision in former
section 594.5. As enacted effective
January 1, 1980, former section 594, subdivision (b)(3), provided, “A court
shall require as a condition of probation for any person guilty of vandalism
. . . that such person wash, paint, repair or replace the defaced,
damaged or destroyed property, or otherwise make restitution to the property
owner.â€
to the Welfare and Institutions Code (Stats. 1979, ch. 200, § 4,
pp. 445-446), which provided, “If a minor is found to be a person
described in [Welfare and Institutions Code] Section 602 by reason of the
commission of vandalism, and the court does not remove the minor from the
physical custody of the parent or guardian, the court as a condition of
probation . . . shall require the minor to wash, paint, repair or replace the
defaced, damaged or destroyed property, or otherwise make restitution to the
property owner.†In 1994 this provision
was reenacted and renumbered as Welfare and Institutions Code
section 742.16, subdivision (a), without significant substantive change
other than to replace the term “vandalism†with a listing of the relevant Penal
Code provisions, sections 594, 594.3, 594.4, 640.5, 640.6 and 640.7. (1994 Stats., ch. 909, §§ 10, 11,
p. 4606.)
As the Attorney General argues, the
Legislature’s mandate to the juvenile court to order minors who have committed
any type of vandalism, not just acts of graffiti, to “wash, paint, repair or
replace†property that has been “defaced, damaged or destroyed†strongly
supports the conclusion that the offense includes malicious acts that can be
rectified simply by cleaning (mopping and wiping) the affected property. In this case, however, there was no evidence
Robert’s actions impaired the functionality of the kitchen or required anything
more than, or different from, the post-meal sweeping, wiping and mopping that
is undoubtedly part of the daily routine in a group-home kitchen. It may well have done so, but there was no
evidence to support such a finding: The
group-home manager testified only that the dirty cabinet was cleaned by wiping
and the tile floor by mopping. The
resulting evidentiary gap requires a reversal of the juvenile court’s order
sustaining the delinquency petition.
(See People v. Davis (July 25,
2013, S198434) ___ Cal.4th ___
[2013 Cal.Lexis 6016, *10] [“‘[a] reasonable inference . . . “may not be based
on suspicion alone, or on imagination, speculation, supposition, surmise,
conjecture, or guess work. [¶] . . . A finding of fact must be an
inference drawn from evidence rather than . . . a mere speculation as to
probabilities without evidenceâ€â€™â€].)
PERLUSS,
P. J.
L.’s malicious destruction of the food unquestionably constituted vandalism
within the meaning of Penal Code section 594, subdivision (a)(3); but
there was no charging allegation in the delinquency petition relating to the
food, and the People failed to seek leave to amend the petition to conform to
proof.
and “maliciously†are defined by Penal Code section 7, subdivision 4, as
“import[ing] a wish to vex, annoy, or injure another person, or an intent to do
a wrongful act . . . .â€
Statutory references are to the
Penal Code unless otherwise indicated.
