Filed 5/10/22 P. v. Chao CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

MEMORANDUM OPINION

We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, Title 8, Standard 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 853–855.)

A jury convicted defendant Edward Chao of felony vandalism (Pen. Code, § 594, subd. (b)(1)) and he was placed on felony probation, after a trial where the following evidence was presented: Defendant walked into a hotel lobby one night in 2018, took a fire extinguisher from a case on a wall, entered the hotel’s adjoining bar, and sprayed the extinguisher toward some of the tables. Much of the bar (which has an occupancy of about 100 people) was “covered in a grayish powder” from the fire extinguisher. This included “bottles, [] walls, carpets, tables, chairs, everything.” As many as 10 bar patrons were sprayed with the powder, and some patrons were coughing and appeared to have trouble breathing.

The bar manager testified that pouring spouts attached to alcohol bottles “were covered in white.” The white or gray substance was also visible inside some, but not all, of the open bottles. Out of concern for patrons’ health and safety, the hotel decided to throw away all open bottles that had been potentially exposed to fire retardant. The discarded open bottles included wines that had been previously opened and recorked. For open bottles of alcohol that were to be discarded, the manager recorded in one-tenth increments the remaining volume in each open bottle so that its value could be calculated. The process was applied only to alcohol, as open mixers were discarded without valuation. Factory-sealed bottles were not discarded, nor were open bottles in a glass case behind the bar. The hotel discarded 31 open bottles of alcohol, which the food and beverage director testified represented $412 in lost alcohol inventory alone. (That figure did not include any associated lost revenue, which the trial court ruled would be a proper consideration for restitution but not for calculating the amount of damage caused; the distinction is important because causing $400 in damage is the threshold for felony vandalism under Penal Code section 594, subdivision (b)(1).) The hotel paid a total of $220.36 for three employees to clean up the bar. The hotel also had to replace the fire extinguisher, but there was no testimony as to its cost.

Defendant’s sole contention on appeal is that insufficient evidence supports the jury’s conclusion that his vandalism caused more than $400 in damage. (Pen. Code, § 594, subd. (b)(1).) To convict defendant, the jury had to find that he maliciously damaged the hotel’s property, and that the amount of the damage was more than $400. “In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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.” (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Regarding damage to bottles, defendant contends that “it was clear and undisputed, from [the bar manager’s] testimony, that he disposed of bottles which were not contaminated.” To the contrary, there was no testimony to the effect that recorked bottles were conclusively uncontaminated. Moreover, the prosecution was required to prove damage, not contamination. Both the bar manager and the food and beverage director testified that, due to health and safety concerns, any unprotected open bottle was discarded regardless of whether powder from the fire extinguisher was visible inside the bottle. Thus any unprotected open bottle became effectively worthless to the hotel—i.e., was damaged—because its contents could no longer be safely served to customers. That is substantial evidence of damage to all the bottles that were discarded, which the jury was entitled to credit. Though citing a law or regulation requiring disposal could have strengthened the prosecution’s case, that additional evidence was not necessary for a conviction. That a different jury presented with the same evidence might have interpreted it as defendant does is irrelevant to whether substantial evidence supports the verdict.

Nor are we persuaded by defendant’s argument that the “need for cleaning is not evidence of damage.” He appears to contend that his conduct cannot be said to have “damaged” any part of the bar (in contrast to the bar’s inventory) because it merely created a “mess” that staff had to clean up. He relies on a dictionary definition of damage: “To do or cause damage to; to hurt, harm, injure; now commonly to injure (a thing) so as to lessen or destroy its value.” (Oxford English Dict. Online https://perma.cc/SM7A-H9ZR [as of May 10, 2022].) Defendant’s misconduct blanketed much of the hotel bar with a grayish powder. Common sense dictates that the bar could not be used until that powder was cleaned off of “bottles, [] walls, carpets, tables, chairs, everything.” The jury was entitled to conclude that the bar was hurt or harmed, and that its value was lessened over the short term, because the bar could not serve patrons until it was cleaned. We therefore disagree with defendant’s contention that the prosecution failed as a matter of law to prove that the hotel bar was damaged by defendant’s conduct simply because the powder from the fire extinguisher could be cleaned off. The prosecution presented evidence of the cost of cleanup by hotel staff, which was an acceptable measure of that part of the damage suffered by the hotel.

The jury heard testimony that the amount of damage caused by the vandalism was at least $632. Substantial evidence therefore supports defendant’s felony conviction. Because we find substantial evidence supports the verdict, defendant’s challenge to the trial court’s denial of his motion under Penal Code section 1118.1 necessarily fails.

Disposition

The order granting probation is affirmed.

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Grover, J.

WE CONCUR:

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Greenwood, P. J.

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Lie, J.

H047267 - The People v. Chao