In re Anthony R.

Filed 10/5/07 In re Anthony R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge.

Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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After admitting to petty theft (Pen. Code, 484, subd. (a)),^[1]being convicted of resisting arrest ( 148, subd. (a)(1)) and auto vandalism of at least $400 on behalf of a street gang ( 594, subd. (a) & (b)(1), 186.22, subd. (b)(1)(B)), appellant Anthony R. was ordered into electronically monitored home confinement, subject to standard probationary terms. Appellant was 15 years old at the time of the offense.

Appellant now claims that (1) insufficient evidence supports his conviction for causing at least $400 damage to both cars, (2) two misdemeanor vandalism offenses should have been charged as opposed to a single felony, and (3) reversal of the felony vandalism conviction requires reversal of the gang enhancement. For the following reasons, we affirm.

FACTS

On April 24, 2006, Daniel Prado heard loud banging noises outside his home and rushed outside to witness three youths using metal rods to smash a 1994 Infiniti, which he co-owned with his fiance, and a 1980 BMW, registered only to his fiance. When confronted, the vandals shouted gang epithets, such as west side creeps at night and WSNG, and threatened Prado. Since Prado was only wearing his underwear when he ran outside, he briefly returned inside for more clothing, but the vandals had fled when he returned outside.

Prado began driving around the neighborhood in search of the suspects, and a neighbor pointed him in their direction. Once Prado found the suspects, he called police and warned the vandals that police were coming. Upon hearing this, the suspects charged at Prados car, still carrying their metal rods and shouting gang slogans, and Prado quickly accelerated to escape. However, Prado remained close enough to observe and track the suspects. When police arrived, Prado helped locate the youths, and after a foot chase and lengthy struggle, appellant was arrested.

Damages to both vehicles included numerous dents throughout and scratched or etched side windows, which the vandals failed to completely break. In addition, the BMWs front windshield was smashed and one of its side mirrors was broken. At the scene, police estimated the BMW windshield damage at $400, the BMW side mirror at $50, and the Infiniti paint at $100. Further damage estimates were not conducted that night. At trial, Prado said that replacing the BMWs windshield cost $200 and that he had not yet obtained estimates for the other damage.

DISCUSSION

Standard of Review

The standard of review for evaluating the sufficiency of evidence in juvenile cases is the same as in adult criminal proceedings. (In re Dennis B. (1976) 18 Cal.3d 687, 697.) The appellate court reviews the whole record in a light most favorable to the judgment to confirm that evidence of reasonable, credible, and solid value reasonably supports the trier of facts determination that the defendant was guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) When evaluating conflicts in the evidence and issues of credibility, the appellate court defers to the trier of fact. (People v. Jackson (1992) 10 Cal.App.4th 13, 20.) The appellate court need not believe that the evidence establishes guilt beyond a reasonable doubt; rather, it must merely determine that any rationale trier of fact could find the essential elements beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) Thus, reversal is not warranted simply because the circumstances might also be reconciled with a contrary finding. (People v. Redmond (1969) 71 Cal.2d 745, 755.) For a judgment to be set aside, it must clearly appear that substantial evidence does not support the judgment under any hypothesis. (Ibid.)

Analysis

Initially, appellant contends that insufficient evidence establishes that he caused at least $400 in damages, in violation of section 594.^[2] However, for several reasons, the evidence presented at trial was more than sufficient for the juvenile court to find the elements of the offense beyond a reasonable doubt.

First, regarding the BMW, appellant argues that neither Prado nor the arresting officer had proper foundation to estimate its damage since neither owned the vehicle, which is registered only to Prados fiance. (See Evid. Code, 403, 813.) However, both Prado and the officer were qualified to testify about what damages they observed, and their testimony indicates extensive damage to the body, paint, and windows of each vehicle. Moreover, nothing in section 594 requires direct evidence from the owner of the vandalized property to meet the $400 threshold. Thus, Prados fiances testimony is not required, and the officers testimony alone is sufficient.

Second, the high cost of body repair work is within the common knowledge of nearly every car owner, and repair costs for the damages described could easily total a few thousand dollars. Thus, we find that the mere description of the damages that Prado and the officer provided is sufficient evidence.

Third, neither Prado nor the officer purported to provide a complete estimate of the damages, and neither claimed to be an expert. Prado only testified to the cost of replacing the BMW windshield and the extent of other damages, and the officer only estimated damages to the BMW windshield, BMW side mirror, and Infiniti paint. Thus, their estimates were incomplete, already totaled a few hundred dollars, and did not purport to be expert testimony.

Fourth, Prado heard long banging noises and witnessed the vandalism firsthand, so it is highly unlikely that the damages were preexisting defects.

Fifth, appellant notes that Prado replaced the BMW windshield for only $200, half the statutory threshold, but what Prado paid for that repair is irrelevant if the actual damages met the $400 threshold. Moreover, the other extensive damage alone permits a reasonable finding of at least $400 in damage.

Sixth, appellant contends that $400 in damage cannot be proven because formal repair estimates were not presented at trial. However, as indicated, the witnesses testimony establishes well over $400 in damage to each vehicle, so formal repair estimates were not necessary for the juvenile court to find the threshold amount satisfied beyond a reasonable doubt.

Last, and notably, appellants trial counsel first asked the arresting officer about his damage estimate, and the foundation for that opinion went unchallenged at trial. Thus, since the officers opinion was actually solicited by the defense and that opinion went unchallenged, appellant cannot now dispute the testimony on appeal. (See People v. Williams (1988) 45 Cal.3d 1268, 1320, fn. 6, abrogated on other grounds as stated in People v. Guinan (1998) 18 Cal.4th 558, 569; Evid. Code, 353.) Further, even assuming that the officers testimony should have been excluded at trial, Prados testimony about witnessing the vandalism and describing the damages provides a sufficient basis for the juvenile court to reasonably find at least $400 in damage to either vehicle.

Therefore, for several reasons, the witnesses testimony was ample evidence that appellants vandalism caused at least $400 in damage, and the juvenile court did not err by so finding.

Next, appellant argues that the juvenile court improperly permitted the prosecution to aggregate the damages from two misdemeanor offenses to charge one felony. (See In re David D. (1997) 52 Cal.App.4th 304, 309-311.) However, we find the testimony from Prado and the police officer sufficient to find at least $400 damage to either car, so analysis of whether the Bailey doctrine^[3]prohibits aggregation in the instant case is unneeded. Nevertheless, the evidence readily indicates that the vandalism occurred in the same course of conduct, since the cars were parked next to each other, they were simultaneously vandalized, the three offenders acted in concert, and both vehicles were registered to one victim, Prados fiance.

Finally, appellant claims that reversal of the felony vandalism conviction requires reversal of the gang enhancement. (See 186.22, subd. (b)(1).) However, since we are not reversing the felony and appellant does not otherwise dispute the gang enhancement, it is also affirmed.

DISPOSITON

The judgment is affirmed.

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^* Before Ardaiz, P.J., Cornell, J. and Gomes, J.

^[1] Unless otherwise indicated, all subsequent statutory references are to the Penal Code.

^[2] In relevant part, section 594 provides that vandalism is punishable as a felony where the amount of defacement, damage, or destruction is four hundred dollars ($400) or more . ( 594, subd. (b)(3).)

^[3] The Bailey doctrine provides that several instances of misdemeanor theft motivated by one intention, one general impulse, and one plan may be aggregated to charge one felony. (People v. Bailey (1961) 55 Cal.2d 514, 519.) The test is whether the evidence discloses one general intent or separate and distinct intents. (Ibid.) In addition, the doctrine only permits aggregation of crimes involving a single victim. (In re David D., supra, 52 Cal.App.4th at p. 310.) The doctrine has not been extended to permit the aggregation of misdemeanor vandalism charges arising from one general intent and against a single victim. (Id. at p. 309.)