In re Cody J.

Filed 3/5/07 In re Cody J. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Jerry Brown, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

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Following a contested jurisdiction hearing, the juvenile court found true allegations that appellant Cody J., a minor, committed one count of felony vandalism (Pen. Code, 594, subd. (b)(1)). Following the subsequent disposition hearing, the court adjudged appellant a ward of the court and placed him on probation with various terms and conditions, including that he pay direct victim restitution in an amount to be determined by the probation officer.

On appeal, appellant contends (1) the evidence was insufficient to support his adjudication of the instant offense, and (2) the courts order that appellant pay restitution was based on unsubstantiated claims of damage and therefore must be reversed.

FACTS

At approximately 11:30 p.m. on October 22, 2005, Stanislaus County Deputy Sheriff Casey Hill received a report from a dispatcher that a person who lived on Norma Way had reported hearing the sound of breaking windows coming from the subdivision that was under construction on Isabela Way, behind the reporting partys house.^[1]The deputy drove toward that location and, approximately three minutes later, saw five minors, one of whom was appellant, standing at the intersection of Norma Way and Tonya Way, approximately 500 yards from the new subdivision. Appellant and three of the other minors had white paint all over their arms, hands, shoes, pants, shirts and faces. Two of the minors had small cuts on their arms; Deputy Hill could not remember if appellant was one of them. None of the minors attempted to run away from the deputy.

While another deputy detained appellant and three of the minors, Deputy Hill drove the fifth minor to the intersection in the area of the house at 4825 Isabela Way (4825) where, that minor stated, the paint fight occurred. There, the deputy saw a large amount of glass in the street. As he approached 4825, he saw that nearly all the windows in the front of the house were broken out, and the front door was off the hinges and lying on the ground. Upon entering 4825, the deputy heard the sound of shards of glass falling inside the house, and found two thermostats ripped from the wall, multiple spots where the wall had been kicked through, kitchen cabinet doors pulled from their hinges and bathroom mirrors broken out.

Thereafter, Deputy Hill returned to the location where appellant and the other minors were being detained. The deputy asked appellant what he was doing out with his friends, and appellant responded, we were having paint war . . . . The deputy asked where the paint war had taken place, and appellant pointed in the direction of 4825 and said, Over there. The deputy also asked appellant if he was responsible for breaking any of the windows[.] Appellant responded, nope. Deputy Hill did not ask appellant if he entered 4825.

No one reported seeing appellant enter any of these houses, throw paint around any of these homes or rip doors off hinges.

The following exchange occurred on cross-examination by counsel for appellant:

Q. . . . Did anyone say they saw my client specifically break any windows?

A. Yes.

Q. Isnt it true that this person was pointing at a group of people?

A. Yes. This person that Im referring to was referring to --

Q. He was pointing to a group of people so not specifically at my client?

A. Yes, your client is named.

Q. But they are pointing at my client. That is what you say in your report.

A. Yes.

On re-direct examination, the following exchange occurred:

Q. You said somebody told you that they saw the minor in one of the houses, who was that?

A. The statement I got was from George [V.].^[[2]]

MR. YEOMAN [defense counsel]: Your Honor, this refers to inadmissible hearsay. If we want to hear what George [V.] has to say[,] he should come testify.

The court treated defense counsels statement as an objection and sustained it, and thereafter, in response to the prosecutors argument that defense counsel opened the door, stated, Even though [defense counsel] got in some hearsay on his own that doesnt allow hearsay to come in further.

Stanislaus County Reserve Deputy Sheriff April Reed testified to the following. On October 22, 2005, she was called out to Isabela Way . . . to take photographs of vandalism[.] She photographed six houses that had been damaged. She entered [t]he south residence, located on the corner, where she saw a can of paint . . . with a lid off and paint splattered.^[3]

Deputy Reed further testified that appellant asked her for copies of the photographs she was taking, so that he could post them on the internet, and that he was laughing, acting [a]s if the situation was a joke.

John Phillips, the controller for Bright Homes, testified to the following. On October 22, 2005, Bright Home properties located at six addresses on Isabela Way--4825, 4820, 4817, 4816, 4812 and 4808--were damaged in the amounts of $15,975, $16,541, $1,630, $2,110, $1,843 and $1,021, respectively. A total of 11 homes located on Isabela Way in Keys belonging to Bright Homes were vandalized.

DISCUSSION

Sufficiency of the Evidence

Appellant contends the evidence was insufficient to support his adjudication of felony vandalism. Appellant does not dispute that the evidence was sufficient to establish that acts of vandalism causing damage in excess of $400 occurred. But, he argues, the evidence was not sufficient to establish that he committed, or aided and abetted, those acts of vandalism. Specifically, he argues as follows: there was no direct evidence he committed, or aided and abetted in, any acts of vandalism or, indeed, entered 4825 or any of the other damaged houses; the circumstantial evidence presented, although it may have raised a suspicion, was not sufficient to establish guilt; and his behavior after he was detained--he did not attempt to flee from Deputy Hill, and when speaking to Deputy Reed, he treated his predicament in a light-hearted way--was consistent with innocence.

Governing Principles

To commit felony vandalism, an individual must maliciously damage or destroy any real or personal property not his or her own, and the damage must amount to $400 or more. (Pen. Code, 594, subds. (a) & (b)(1).)

In determining whether the evidence is sufficient to support a juvenile court finding that a minor has committed a criminal offense, the reviewing court is bound by the same principles as to sufficiency and the substantiality of the evidence which govern the review of criminal convictions generally. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) Those principles include the following:

In addressing a challenge to the sufficiency of the evidence supporting a conviction, the appellate court must determine whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) In making this determination, [the appellate court] must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--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.] (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

By definition, substantial evidence requires evidence and not mere speculation. In any given case, one may speculate about any number of scenarios that may have occurred . . . . A reasonable inference, however, 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 evidence. (People v. Cluff (2001) 87 Cal.App.4th 991, 1002, quoting People v. Morris (1988) 46 Cal.3d 1, 21.) Evidence which merely raises a strong suspicion of the defendants guilt is not sufficient to support a conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.)

The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft, supra, 23 Cal.4th at p. 1053.) Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.)

Analysis

Evidence adduced included the following: within three minutes of receiving the dispatch, Deputy Hill encountered appellant and his cohorts approximately five hundred yards from several houses that had been vandalized, and broken glass was still falling a short time later when the deputy entered 4825. From this evidence the juvenile court reasonably could have concluded appellant was in close proximity to the vandalized homes a short time after the acts of vandalism were committed. Moreover, the testimony that appellant was splattered with paint, considered in conjunction with the testimony of Deputy Hill as to the presence of an open paint can and spilled paint in one of the damaged houses, both strengthens this inference and supports the inference that appellant was actually inside at least one of the damaged houses. Finally, the foregoing circumstantial evidence, considered in conjunction with Deputy Hills testimony that another person on the scene, George V., indicated that appellant broke windows, was sufficient to establish that appellant committed acts of vandalism in at least one of the damaged houses.

Appellants argument focuses on the circumstantial evidence which he contends was sufficient to establish nothing more than appellants presence at the scene of the acts of vandalism. Appellants argument discounts the direct evidence of guilt, viz. the deputys testimony that George V. identified appellant as a person who broke windows. He asserts, correctly, that on redirect examination of Deputy Hill, the court excluded George V.s specific statement . . . as inadmissible hearsay; the prosecutor did not call George V. to testify; and George V. himself was cited for this incident. Nonetheless, It is settled law that incompetent testimony, such as hearsay or conclusion, if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding. [Citations.] Evidence technically incompetent admitted without objection must be given as much weight in the reviewing court in reviewing the sufficiency of the evidence as if it were competent. [Citations.] (People v. Bailey (1991) 1 Cal.App.4th 459, 463.) As demonstrated above, the evidence as a whole, consisting of both circumstantial and direct, albeit hearsay, evidence, although far from overwhelming, was sufficient to support the conclusion that appellant committed felony vandalism as alleged in the instant petition.^[4]

Restitution

Appellant argues that assuming the evidence supports the instant adjudication, the court erred in ordering appellant to pay restitution for damage to houses other than 4825 because, he asserts, although the Bright Homes controller testified as to damage amounts for six houses, with the exception of the damage to 4825 the prosecutor failed to offer any other evidence to substantiate these amounts.

Appellants claim is not ripe for review. As indicated above, the court ordered restitution in an amount to be determined by the probation officer, and as of the time of completion of briefing in the instant case, the amount of restitution apparently had not been determined. If, once the probation officer makes such a determination, appellant objects, he is entitled to a hearing. (Welf. & Inst. Code, 730.6, subd. (h)(4) [[a] minor shall have the right to a hearing before a judge to dispute the determination of the amount of restitution].) [The] statutory directive [of section 730.6, subdivision (h)] is meant to afford the minor a reasonable opportunity to challenge the accuracy or validity of the [victims] claimed losses. (In re Brittany L. (202) 99 Cal.App.4th 1381, 1391.) At such a hearing, a juvenile court should review all proffered documentary and testimonial evidence bearing on the [victims] claimed loses and appellants challenges to the amount or validity of those losses. (Ibid.) Thus, appellants claim that damage amounts are unsubstantiated is more appropriately raised after a hearing on the matter.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Kane, J.

^[1] Except as otherwise indicated, the factual statement is taken from Deputy Hills jurisdiction hearing testimony.

^[2] At the disposition hearing, the court indicated George V. was one of appellants co-responsibles.

^[3] Appellant opines, and the People do not dispute, that the house Deputy Reed entered was 4825.

^[4] Because we find the evidence sufficient to sustain the petition on the basis that appellant was a perpetrator of the instant offense, we need not address appellants contention that the evidence was insufficient to establish his guilt on an aiding-and-abetting theory.