Opinion
B229471
09-28-2011
In re ANDRES B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANDRES B., Defendant and Appellant.
Jolene Larimore, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MJ19975)
APPEAL from an order of the Superior Court of Los Angeles County. Robin R. Kesler, Temporary Judge. (Pursuant to Cal. Const., Art. VI, § 21.) Affirmed.
Jolene Larimore, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.
Andres B., a minor, appeals from an order declaring him a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 by reason of his having committed vandalism causing damages of $400 or more (Pen. Code, § 594, subd. (a)). The juvenile court sustained the petition, declared the offense to be a felony and placed appellant home on probation. Appellant contends that there is insufficient evidence to sustain the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
On August 23, 2010, at approximately 5:30 p.m., Bert Gonzales (Gonzales), a correctional sergeant at California State Prison, was driving by the intersection of 30th Street West and Avenue I, in Lancaster. There, he caught a "glimpse" of appellant in a "water wash," facing a wall approximately 100 feet from the sergeant, holding "what appeared to be a spray [paint] can and look[ing] like he was spraying on the wall."
Gonzales made a U-turn and drove back. He stopped his car at the light at the same intersection for approximately two minutes, where he had a "fairly unobstructed" view and saw three young men, including appellant, "spraying on the wall." He did not actually see any spray paint going on the wall, but saw all three males holding spray paint cans. He did not see what they sprayed on the wall, could not identify the letters they were painting, the size of the letters or the color of the paint being used. He said one of the youths was wearing a white shirt, another a black shirt and a third a dark shirt, though he could not identify which shirt appellant was wearing. He then called the sheriff's department. When the deputies arrived, Gonzales identified appellant as one of the taggers.
Sheriff's Deputy Detective Mark Donnel arrived at the scene near 5:30 p.m. He saw three young men walking in the wash, between Lancaster Boulevard and Avenue I. When he told them to stop, they all began to run. Finally, Deputy Donnel, with assistance of other deputies, ordered them to stop and they did.
Detective Donnel read to each of the suspects individually their Miranda rights, which they agreed to waive and speak with him. One of the suspects, Michael L. (Michael), told him that he had been spray painting "GONE" in the wash area and showed the detective what he had done. There were 15 "GONE's" spray painted, and the detective touched one that was fresh and still wet. Michael admitted painting all of them and did not indicate that he had any help in doing so.
Miranda v. Arizona (1966) 384 U.S. 436(Miranda).
Another suspect, Irvin A. (Irvin) told Detective Donnel that he had spray painted "BE4R." Detective Donnel counted four "BE4R's" on the wall, which Irvin admitted painting, indicating that he did so by himself. Detective Donnel did not ask Michael or Irvin if anyone helped them spray paint.
Appellant told the detective that he was just watching his friends spray painting and did not spray paint himself.
Michael and Irvin pointed to the areas that they spray painted, and Detective Donnel took photographs. The spray painted words were approximately six feet tall. Detective Donnel understood the words "GONE" and "BE4R" to be the suspects' monikers. Appellant did not have a moniker.
There were dozens of empty spray paint cans lying about. The parties stipulated that the police report stated that Michael and Irvin had white and black spray paint on their fingers. Detective Donnel did not recall seeing any paint on appellant's clothing. In the detective's experience, some taggers will spray paint someone else's moniker or just help other taggers. The parties stipulated that $400 or more of damage had been incurred.
In closing argument, the prosecution argued that appellant was spray painting, or, alternatively, was assisting his friends paint their monikers.
Based upon the foregoing facts, the district attorney filed a section 602 petition, charging appellant, then 15 years old, with vandalism with damages of $400 or more.
The juvenile court sustained the petition, declared the offense to be a felony, and adjudicated the minor a ward of the court pursuant to section 602. It placed appellant home on probation.
DISCUSSION
Appellant's sole contention on appeal is that there is insufficient evidence to support the trial court's finding that he committed vandalism. He argues that Gonzales's testimony was not credible because Gonzales (1) only had a brief glimpse of the wall area, (2) was 100 feet from the suspects, (3) testified that appellant only appeared to be holding a spray can, (4) did not actually see any paint being sprayed, (5) could not adequately identify the clothing of all of the perpetrators, and (6) identified the suspects by their clothing, not their faces. Appellant claims that "[w]hen Mr. Gonzales's eyewitness testimony is considered in the context of the overwhelming evidence that appellant did not himself paint (his denial, no paint on him, admissions by other two youths which accounted for all of the fresh painting), this court must conclude that the fact finder did not have substantial evidence from which a reasonable fact finder could find appellant guilty beyond a reasonable doubt." This contention is without merit.
"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. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) This standard applies whether direct or circumstantial evidence is involved. (People v. Catlin (2001) 26 Cal.4th 81, 139.) The same principles apply with respect to juvenile proceedings under section 602. (In re Jesse L. (1990) 221 Cal.App.3d 161, 165.)
Ignoring these fundamental principles, appellant improperly focuses on the evidence he believes undermines Gonzales's testimony, thereby asking us to reweigh the evidence, determine the credibility of Gonzales, and decide if it is outweighed by the evidence favorable to appellant. But that evaluation is exclusively within the province of the trier of fact. We focus only on whether there is sufficient evidence to support the trier's findings. When properly considered, we find Gonzales's testimony by itself sufficient to conclude that appellant was spray painting the wall, for even when there is a substantial amount of countervailing testimony, the testimony of a single witness is sufficient to establish substantial evidence. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
Because we conclude that there was sufficient evidence that appellant was spray painting the wall, we need not consider whether there was sufficient evidence that he was only aiding and abetting the other two suspects.
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First, appellant was in the water wash surrounded by seven foot walls with two other males. He was not a passerby, who happened to be watching what was going on. It took considerable effort for him to be at the location of the vandalism, giving rise to the inference that he was there for some purpose other than as a mere onlooker.
Second, Gonzales, an eyewitness, testified that he was driving by the wash when he saw appellant, with two other males, "facing a wall in a wash . . . holding what appeared to be a spray can and look[ing] like he was spraying on the wall." Gonzales was only 100 feet away when he made his observations and had a view that was unobstructed, except for a chain linked fence. After driving through the intersection, Gonzales made a U-turn, and stopped for two minutes at the light at the same intersection and saw "[a]ll three [suspects] were doing the same thing, spraying on the wall. . . . It appears to be they were tagging on the wall, using the spray can to vandalize the wall." When the sheriff deputies arrived, Gonzales identified appellant as one of the people he saw tagging at the location.
Appellant argues that Gonzales's "imprecise testimony . . . cannot be said to have resulted in that degree of confidence required by the reasonable doubt standard," particularly when compared to the testimony favorable to appellant, including that Gonzales did not actually see any paint sprayed, said that it only "looked like" the suspects were spray painting the wall, could not tell what was being written or identify all of the suspects clothing, and made his observations a long distance from the alleged spray painters. But these are all facts that go to the credibility of Gonzales's testimony which were before the juvenile court when it reached its decision. It concluded that Gonzales's testimony was credible, that he made sufficient observations of the circumstances to justify his conclusion that he saw appellant spray painting the wall. Gonzalez saw the suspects facing the wall holding up the spray paint cans, and saw wet paint. There is nothing physically impossible or inherently improbable in Gonzales's testimony. Unless testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Additionally, when the sheriff's deputies arrived at the wash, all three suspects ran. While flight "is not sufficient in itself to establish . . . guilt, [it] is a fact which, if proved, the jury may consider in deciding his guilt or innocence." (Pen. Code, § 1127c.)
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
ASHMANN-GERST, J. We concur:
DOI TODD, Acting P. J.
CHAVEZ, J.