Opinion
E044718
7-30-2008
In re KENNETH L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. KENNETH L., Defendant and Appellant.
William H. Strohmeyer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Not to be Published
STATEMENT OF THE CASE
A subsequent petition dated October 12, 2007, alleged that the minor committed the crime of vandalism (Pen. Code, § 594, subd. (b)(1)) by inscribing graffiti on the walls of the Victoria Village Apartments in San Bernardino County. It was further alleged that the amount of damage was over $400 and the petition charged the crime as a felony. The minor had previously been declared a ward of the court following his admission to a violation of § 242 (misdemeanor battery) as alleged in a petition filed on March 21, 2007.
All further references are to the Penal Code unless otherwise indicated.
The jurisdictional hearing in the subsequent petition commenced on November 6, 2007. Prior to the onset of testimony, counsel for the minor, Mr. Sterling, urged the juvenile court to continue the matter on the grounds that he was unprepared to try the case. Counsel stated that after he received the case, he sustained an injury, which caused him to miss a period of time from work. Counsel asked another attorney from his office to try the case and new counsel prepared the case for trial. However, on the date that trial was to begin, new counsel was engaged in trial on another matter and was therefore unavailable. Mr. Sterling therefore requested that the court continue the trial so that new counsel could act as trial counsel.
The district attorney objected to the continuance on the grounds that their witnesses were present and that the People were prepared to proceed.
Noting that the case was a "simple, one-count case," that the witnesses were present, and that counsel had the day before represented that his office was prepared to proceed, the court denied the counsels request to continue the case.
The jurisdictional hearing then commenced and testimony was received. During the jurisdictional hearing the district attorney sought to introduce statements made by the defendant and a graffiti card prepared pursuant to those statements. The defendant objected on the grounds that he had not been properly Mirandized and that the statements and a gang card should be excluded from evidence.
Miranda v. Arizona (1966) 384 U.S. 436.
Testimony on the circumstances surrounding the making of the statements was received, including testimony from the defendant. In his testimony, defendant stated that he was questioned by Officer Nathan Barilics and another officer for approximately thirty minutes at the San Bernardino police station before he was given the Miranda warnings by Officer Kenneth Kiecolt.
Officer Kiecolt testified that he had issued the Miranda warnings to defendant before questioning him and that it was during this questioning that defendant provided the information to complete the graffiti card. Officer Kiecolt testified that Officers Barilics and Guebara were both present "at times" during the defendants interview. Officer Kiecolt testified that it was possible that defendant was left alone with Officer Barilics but that if this occurred, it happened after Officer Kiecolt had already Mirandized and interviewed defendant. However, Officer Kiecolt was only "pretty sure" that he had not left defendant alone with Officer Barilics prior to issuing the Miranda warnings. He could not say with absolute certainly that he did not leave defendant alone with Officer Barilics.
Following testimony and argument from counsel, the juvenile court took the motion to exclude the evidence under submission. The juvenile court thereafter denied the motion, finding that the testimony of the officers was more credible than that of defendant and that the appropriate Miranda admonishments had been given in a timely manner.
Thereafter, the allegations of the petition were found true. At the conclusion of the dispositional hearing, the juvenile court ordered that the defendant be maintained in his mothers home on terms and conditions of probation as previously ordered and as supplemented for the subsequent petition. Defendant thereafter timely filed his notice of appeal.
STATEMENT OF FACTS
On October 10, 2007, Officer Kenneth Kiecolt of the San Bernardino Police Department responded to a graffiti investigation call at the Victoria Village Apartments, located at 6601 North Victoria Avenue in San Bernardino County. The offense had occurred approximately two hours prior. Defendant had already been detained as a suspect and transported to the police station. Officer Kiecolt proceeded to the police station, where, after issuing the Miranda admonishment, he questioned defendant.
Defendant told Officer Kiecolt that he had purchased spray paint from a Wal-Mart store on East Highland Avenue the previous day. Because he was unable to purchase the paint himself, he had a stranger make the purchase in exchange for money or beer. Defendant told Officer Kiecolt that using the paint he had purchased, he vandalized the Victoria Village Apartments on October 10th by "tagging" the east wall of the property near the freeway. Defendant did not tell Officer Kiecolt the colors he had used to "tag" the wall that day but did state that gold paint that was already on the wall was from a previous tagging episode in which he had been involved.
There are five types of graffiti: art, gang graffiti, tagging, communicative, and hate graffiti. "Tagging" is done for "the fame of the individual tagger."
Defendant stated that he had performed the tagging under the moniker "Force" and that his previous moniker had been "Spine." Defendant stated that he was a member of the "tagging crews: T.N.S.K., A.T.A., I.M.K., and W.B.A."
The word "Force" was painted at several locations on the east wall of the apartment complex.
Because "tagging" is done for "fame," taggers always use their own moniker and do not tag using the names of other taggers.
Officer Nathan Barilics also participated in the investigation of the incident, and contacted defendant at the police station. At that time he observed defendant to have paint on his hands and he also had the word "Force" written on the side of his tennis shoes, as well as the names of various tag crews, including T.N.S.K. According to Officer Barilics, it is common for taggers to write their monikers and crew names on their shoes.
Officer Barilics further testified that he measured the east wall of the apartment complex where the tagging had occurred, and that the affected area was 876 square feet. He also testified as to the cost scale utilized by the company that the City of San Bernardino employs to paint over graffiti damage. Using his measurements of the affected area and the cost structure used by the painting contractor, Officer Barilics estimated the cost of repainting the wall at $2,628.
The manager of the apartment complex, Mary Beth Wady, also testified and she stated that the apartments maintenance crew had painted over the graffiti. She did not provide testimony as to the cost incurred in repainting the wall.
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered the defendant an opportunity to file a personal supplemental brief, which he has not done.
We have now concluded our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur:
King, J.
Miller, J.