Filed 12/7/18 In re W.J. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

W.J. (the minor), then 13, intentionally damaged a mannequin while fleeing a Kohl’s store where he had been performing backflips on display beds and engaging in other acts of mischief with his companions. He appeals from the juvenile court’s finding he was aware of the wrongfulness of his actions (Pen. Code, § 26)[1] and adjudicating him to be a ward of the court (Welf. & Inst. Code, § 602) after sustaining the allegation he committed felony vandalism (§ 594, subd. (b)(1)) that the court deemed a misdemeanor (§ 17, subd. (b)(3)). The minor was granted probation and ordered to pay $648 in restitution to Kohl’s.

The minor contends the juvenile court committed a myriad of errors that may be distilled into two categories: (1) substantial evidence does not support either the vandalism or the knowledge of wrongfulness findings and (2) the juvenile court abused its discretion by admitting evidence related to the value of the mannequin and admitting testimony concerning the minor’s prior act of vandalism.

As to the first category, we conclude substantial evidence supports the juvenile court’s findings. As to the second category, we conclude the evidence related to the value of the mannequin was properly admitted. And because the juvenile court did not rule on the admission of the prior vandalism testimony, this issue has not been preserved for appeal. We affirm the judgment.

BACKGROUND

As established at the four-day contested jurisdictional hearing, loss prevention officer Kory Korp saw on closed circuit TV three juveniles leave their bikes at the front entrance of Kohl’s and enter the store. He left the loss prevention office to remove the bikes that were a hazard. Korp saw the juvenile in the purple top take an expensive electronic scanning device off a rack and move to the back wall where he tried unsuccessfully to remove its security protection. Eventually, he gave up and discarded the device. Korp also observed the other juveniles throw ladies’ scarves on the ground, throw a lip balm ball across the store, and place merchandise in an elderly woman’s cart.

Assistant manager Alice Flores saw three boys jumping on display beds and humping pillows on those beds. The boys were dressed in a purple hoody, red shirt, and white top, respectively. Flores told the boys to get off the beds, but rather than comply, they started doing backflips. Korp also observed the juveniles jumping on the beds from the loss prevention office. Flores called security on a walkie-talkie for help. In response, the boys ran past Flores into the lingerie department, deliberately knocking lingerie off the shelves and racks, cheering each other on as they went. The boy in the purple hoody knocked down a lingerie mannequin with his left hand, causing it to shatter on the floor. Flores did not see the boy in the purple hoody trip or fall, nor did she see the other boys touch the mannequin. The mannequin was secured by a solid metal rod in its leg and a screw so that it would not easily fall over.

Korp did not see the mannequin fall, but heard the crash and saw the juveniles running toward the front exit of the store. He saw the mannequin in pieces on the floor and observed a trail of clothing leading to the mannequin. Korp left the store and saw the juveniles running away without their bikes. Korp tried to get the juveniles to come back to the store under the pretense of getting their bikes, but they lingered 15 to 20 feet away and refused to return. Korp overheard the juvenile in the purple hoody asking his mother to come to the store because he could not get his bike back and “[t]hey’re trying to say that I did something.” Korp kept watch on the juveniles after they left the parking lot until they were contacted by police. Korp did not see them switch clothing. When the juveniles returned to the store, they were arrested.

Officer John Fisher testified he arrived at Kohl’s and saw three juveniles standing with loss prevention officers outside the store. The boy in the purple hoody identified himself as the minor.[2] The minor was generally uncooperative and used increasingly profane language in response to police attempts to ascertain his involvement in the incident at the store.

Further factual and procedural details concerning the minor’s claims on appeal will be discussed in the sections that follow.

DISCUSSION

I

The Substantial Evidence Challenges

The minor contends there is not substantial evidence supporting the juvenile court’s determination it was the minor who destroyed the mannequin or it was intentionally done. He further contends there was not substantial evidence he understood the wrongfulness of his actions. We conclude substantial evidence supports the juvenile court’s findings. Because an understanding of wrongfulness is a prerequisite to criminal liability (§ 26), we will address this argument first.

A.

Standard of Review

As explained in In re Cesar V. (2011) 192 Cal.App.4th 989 at pages 994-995: “ ‘The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials.’ [Citation.] Thus, ‘we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal. Under this standard, the critical inquiry is “whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.] An appellate court “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] [¶] In reviewing the evidence adduced at trial, our perspective must favor the judgment. [Citations.] “This court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court’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.] [¶] Before the judgment of the trial court can be set aside for insufficiency of the evidence . . . , it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it. [Citations.]” [Citations.]’ [Citation.]”

The substantial evidence standard also applies to determinations under section 26 that a minor appreciated the wrongfulness of his or her acts at the time to charged offense was committed. (In re Marven C. (1995) 33 Cal.App.4th 482, 486; In re Paul C. (1990) 221 Cal.App.3d 43, 52.)

B.

Knowledge of Wrongfulness

As explained by the Supreme Court in In re Manuel L. (1994) 7 Cal.4th 229 at pages 231-232: “[S]ection 26 articulates a presumption that a minor under the age of 14 is incapable of committing a crime. (. . . § 26, subd. One.) To defeat the presumption, the People must show by ‘clear proof’ that at the time the minor committed the charged act, he or she knew of its wrongfulness. This provision applies to proceedings under Welfare and Institutions Code section 602. [Citation.] Only those minors over the age of 14, who may be presumed to understand the wrongfulness of their acts, and those under 14 who--as demonstrated by their age, experience, conduct, and knowledge--clearly appreciate the wrongfulness of their conduct rightly may be made wards of the court in our juvenile justice system.” (Ibid., fns. omitted.) For purposes of this inquiry, clear proof equates to “clear and convincing evidence that the minor appreciated the wrongfulness of the charged conduct at the time it was committed.” (In re Manuel L., at p. 232, italics added.)

The minor contends substantial evidence does not support the juvenile court’s finding “there was clear proof that [the minor] knew that the charge filed against him--knew of its wrongfulness.” We disagree.

First, the minor was 13 years and one month old at the time of the offense. As we have previously stated: “ ‘[I]t is only reasonable to expect that generally the older a child gets and the closer [he or she] approaches the age of 14, the more likely it is that [he or she] appreciates the wrongfulness of [his or her] acts.’ [Citations.]” (In re Paul C., supra, 221 Cal.App.3d at p. 53.) We are unpersuaded by the minor’s attempts to draw meaning from his being several months younger than the juveniles in other cases where wrongfulness determinations were upheld. (See, e.g., In re Tony C. (1978) 21 Cal.3d 888, 900-901 [14 weeks short of 14th birthday]; In re Marven C., supra, 33 Cal.App.4th at p. 487 [four months short of 14th birthday].) Clearly, if an 11-year-old can appreciate the wrongfulness of his conduct (see In re Manuel L., supra, 7 Cal.4th at p. 233; In re Jerry M. (1997) 59 Cal.App.4th 289, 298), so may a child of 13 years and one month.

Second, the minor’s mother’s testimony supports that he knew breaking the mannequin was wrong. She testified she imposed rules on the minor that he had to follow or he would be punished. The minor tried to follow these rules and understood that failure to follow them would result in punishment. He knew damaging another person’s property was wrong and he would be punished for damaging that property. Further, he knew failure to behave could result in a police investigation.

Finally, inferences derived from the circumstances surrounding the minor’s crime support a finding of knowledge of wrongfulness. (In re Paul C., supra, 221 Cal.App.3d at p. 52.) As will be discussed further in the next section, the minor and his companions engaged in a series of mischievous acts culminating in the purposeful destruction of the mannequin. For example, the minor took an electronic scanning device to a secluded area of the store, where he unsuccessfully attempted to tamper with its security protection. The minor then performed flips on display beds and simulated sex acts with the pillows on those beds. Though initially undeterred by the protests of store management authorities, the minor and his companions fled the store when the manager called store security for help.

On their way out of the store, the minor and his companions knocked merchandise to the ground, leaving a trail of clothes in their wake. These juveniles cheered each other on as they went, with their shenanigans ultimately culminating in the minor’s forcefully making contact with a mannequin with his left hand, causing its destruction. The minor and his companions refused to return to the store, where they could be apprehended, and in so doing, left their bikes behind. They later left the parking lot and did not return until they were contacted by police. The minor was also generally uncooperative with authorities and used increasingly profane language. These facts undeniably allow an inference the minor appreciated the wrongfulness of his conduct at the time of that conduct such that substantial evidence supports the juvenile court’s section 26 determination. Thus, the minor’s due process argument premised upon the court’s erroneous section 26 determination necessarily fails.

C.

Felony Vandalism

Felony vandalism occurs when a person maliciously damages or destroys the property of another when that property is worth more than $400. (§ 594, subds. (a)(2)-(3), (b)(1); CALCRIM Nos. 2900, 2901.) “[A] person acts maliciously either when acting with ‘a wish to vex, annoy, or injure another person’ or with the ‘intent to do a wrongful act.’ (§ 7, subd. 4.) As our Supreme Court has explained, the first type of malice described in section 7, subdivision 4, is known as ‘[m]alice in fact’ and ‘consists of actual ill will or intent to injure.’ (In re V.V. (2011) 51 Cal.4th 1020, 1028.) However, the second type of malice described in section 7, subdivision 4, is known as ‘malice in law.’ (In re V.V., at p. 1028.) ‘Malice in law may be “presumed” or “implied” from the intentional doing of the act without justification or excuse or mitigating circumstances.’ (Ibid.)” (People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1282 [intentional arson of first house sufficient to show maliciousness as to second house that was collaterally damaged].)

Here, the juvenile court found true the allegation the minor committed a violation of section 594, subdivision (b)(1). We reject the minor’s substantial evidence challenge brought on the basis of lack of evidence establishing the act was done by the minor or that it was maliciously done. The minor’s arguments misapprehend the scope of our review. Rather than reweighing the evidence, we review the record as a whole in the light most favorable to the judgment to determine whether there is reasonable, solid, and credible evidence to support the juvenile court’s finding. (In re Cesar V., supra, 192 Cal.App.4th at pp. 994-995.) Thus, it does not matter that there is evidence in the record from which a contrary finding could have been made; rather, reversal is only warranted if it clearly appears that under no hypothesis is there substantial evidence supporting those findings. (Id. at p. 995.)

Here, the record contains substantial evidence demonstrating the minor, himself, intentionally exerted force on the mannequin, causing it to fall to the floor and shatter. The only testifying percipient witness to the incident, Flores, clearly and consistently identified the boy in the purple hoody as the person who deliberately knocked down a lingerie mannequin with his left hand, causing it to shatter on the floor. There is no question the minor was the boy in the purple hoody; he was identified by multiple witnesses at the hearing and was also wearing that hoody when he identified himself to the responding officer at the crime scene. Thus, substantial evidence supports that it was the minor who knocked over the mannequin.

The minor nonetheless contends insufficient evidence supports the finding that his conduct was malicious, intentional, or the result of a wrongful act. Not so. Nothing in Flores’s testimony suggests there was anything accidental about the minor’s act of extending his arm and knocking the mannequin onto the floor with his left hand. The minor makes much of the difference between a “push” and an extended hand striking the mannequin, attacking alleged inconsistencies in Flores’s description of the minor’s actions. These semantics make no difference to our analysis and conclusion.

The minor and his companions were engaging in mischief within the store, including performing flips on beds and mimicking sex acts on the bed pillows. When Flores called store security for assistance, the minor and his companions took off running, leaving a trail of clothes in their wake that they knocked off racks and shelves in the lingerie department as they made their way toward the front exit. These juveniles cheered each other on as they went, with their shenanigans ultimately culminating in the minor’s forcefully hitting a mannequin with his outstretched arm and left hand, causing it to fall to the ground despite it being secured by a metal rod and corresponding pin for safety. The minor has provided no viable argument that willfully knocking a mannequin to the ground causing its destruction is not “malicious.” Whether it was a push with two hands or an intentionally outstretched hand that knocked the mannequin to the floor, we conclude substantial evidence supports the juvenile court’s determinations the minor acted intentionally and maliciously in purposefully making contact with the mannequin, causing its destruction.

II

The Evidentiary Challenges

The minor contends the juvenile court abused its discretion in admitting evidence related to the value of the mannequin and in admitting evidence the minor committed a prior act of vandalism. As we explain, the evidence of the value of the mannequin was properly admitted. The argument regarding the prior act of vandalism has not been preserved for appeal because the juvenile court did not rule on the admissibility of the testimony.

A.

Standard of Review

“A trial court’s decision to admit or exclude evidence is a matter committed to its discretion ‘ “and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 585.)

B.

The Value of the Mannequin

The minor contends the juvenile court erred in: (1) allowing the store manager to testify concerning the value of the mannequin damaged during the vandalism and (2) admitting the receipt reflecting the purchase of the replacement mannequin as corroboration of this testimony; his argument follows that without this evidence, there was no evidence establishing the vandalism was a felony or the appropriate amount of restitution to be awarded Kohl’s. We conclude there was no error.

Prior to the contested jurisdictional hearing, the People moved in limine to admit, upon an appropriate foundation, an “estimate” of the cost of the replacement mannequin in the form of a receipt that would corroborate the cost of replacing the mannequin. The juvenile court granted this motion, subject to the laying of that foundation. Thereafter, the People presented the testimony of Valerie Donnelly, the manager of the Kohl’s store in question. Donnelly had ordered only one replacement mannequin and received a receipt from the corporate office for that mannequin. The minor’s counsel made a hearsay objection to the admission of the receipt reflecting the purchase and also objected to certain redactions of information contained thereon.

In response, the People elicited that the receipt was forwarded by Kara Korenic, the individual who does all the purchasing for Kohl’s. Donnelly contacted Korenic and directed her to obtain a replacement mannequin for the mannequin that was destroyed at the store on February 1. Donnelly also requested a receipt for the replacement and received the receipt dated, April 12, 2017, for a Warner/Vanity Fair mannequin, the same kind of mannequin that had been damaged. The receipt Donnelly forwarded to the district attorney’s office had some portions blacked out, which was how it was when Donnelly received it from Korenic.[3] The mannequin’s total replacement cost was $648, which was broken into $500 for the mannequin and $148 for shipping.

The juvenile court, having previously found the witness competent to testify concerning the Kohl’s organization and how it pertained to her job as store manager, admitted the receipt over minor’s hearsay objection, based upon the hearsay exception found in “PG&E versus W. Thomas Drayage.” On cross-examination, minor’s counsel established the $648 invoice for the replacement mannequin was paid, but the manager did not actually write the check. Defense counsel also established the mannequin was not reparable and had to be replaced.

As stated in Pacific Gas & Elec. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33 at pages 42-43 (Pacific Gas & Elec. Co.): “Since invoices, bills, and receipts for repairs are hearsay, they are inadmissible independently to prove that liability for the repairs was incurred, that payment was made, or that the charges were reasonable. [Citations.] If, however, a party testifies that he [or she] incurred or discharged a liability for repairs, any of these documents may be admitted for the limited purpose of corroborating his [or her] testimony [citations], and if the charges were paid, the testimony and documents are evidence that the charges were reasonable. [Citations.]” (Ibid.) That paid receipts may be used as corroboration of a person incurring a corresponding, reasonable damage is a longstanding exception to the hearsay prohibition that continues in use today. (See Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 137; id. at pp. 138-139 [concluding unpaid medical bill is not evidence of the reasonable value of the services provided].)

Here, the juvenile court did not abuse its discretion in either: (1) admitting the testimony of Donnelly, who personally contacted Korenic to obtain the replacement mannequin and who received a receipt reflecting that purchase; or (2) admitting the receipt corroborating Donnelly’s testimony concerning the cost forthe replacement that she testified had been paid. This falls within the exception articulated in Pacific Gas & Elec. Co, supra, 69 Cal.2d at pages 42-43.[4] Therefore, the minor’s arguments concerning the value of the mannequin damaged by the minor for purposes of establishing felony vandalism (§ 594, subd. (b)(1)) and for setting the restitution awarded to Kohl’s fail.

C.

Prior Act of Vandalism

The minor argues the juvenile court prejudicially erred in admitting testimony concerning his alleged vandalism of his mother’s apartment because insufficient evidence established he committed that act, and thus, it could not be used to support the finding concerning his intent for the Kohl’s vandalism charge. However, the record does not reflect that the juvenile court admitted this testimony for this purpose. On the contrary, the juvenile court initially ruled it would hear the testimony of the minor’s mother prior to deciding whether it could be considered. Thereafter, the court heard the minor’s mother’s testimony concerning the minor’s knowledge of wrongfulness as well as the apartment vandalism, but did not make any decision on the admission of the portions of that testimony concerning the vandalism of the mother’s apartment. Thus, the propriety of the admission of the mother’s testimony for this purpose was not preserved for appeal. (See People v. Ramos (1997) 15 Cal.4th 1133, 1171 [express ruling of trial court is required to preserve appellate issue of evidentiary objection to evidence].)

DISPOSITION

The judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

RAYE, P. J.

/s/

ROBIE, J.