P. v. Regalado

Filed 2/28/06 P. v. Regalado CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart and Sidney P. Chapin, Judges.^*

Michelle E. Guardado, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant John Manuel Regalado was convicted of one count of felony vandalism resulting from graffiti being painted on two separate businesses. (Pen. Code, § 594, subd. (b)(1).)^[1] He appeals, claiming the trial court erred in denying his motion to suppress, the felony vandalism conviction is not supported by sufficient evidence, the trial court erred in instructing on aider and abettor culpability, and the trial court erred in denying his motion

for mistrial. We will reduce his conviction to two misdemeanors.

FACTS

At approximately 11:30 p.m. on June 9, 2004, Sergeant Bobby Gaines of the Kern County Sheriff's Department was on patrol in his marked patrol car. He saw defendant running from the east side of the Big-O-Burger business. Defendant ran to a car parked in the alley. The car had its lights on. Defendant got in the front passenger seat of the car. Another individual was driving the car. Gaines pulled his car into a position where he blocked the alley. Gaines called for backup officers.

Dana Albro was one of the officers responding to the scene. When she arrived she smelled an overwhelming odor of fresh spray paint. Defendant and the driver were removed from the car. The driver had tacky blue paint on his fingertips and palms. Defendant had fresh blue paint on the tips of his fingers and thumb. One of the cans of spray paint found in the car matched the paint on defendant's hands. There was also blue paint on the front passenger window, door, and handle. There was blue paint on the driver's door. An aerosol spray nozzle was in defendant's front pocket.

There were four-foot-tall painted letters spelling â€