Opinion
G037433
6-1-2007
In re DANIEL B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DANIEL B., Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Daniel B. appeals from a judgment that declared him a ward of the court and placed him on probation, after the juvenile court found him guilty of felony gang-related vandalism. Daniel argues the evidence is insufficient to show he was the individual who spray-painted graffiti on a building. We disagree and affirm.
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Around 6:30 in the evening on January 9, 2006, Ron Thompson was standing outside an auto repair shop in Anaheim. He saw someone spray-painting the initials "B. S. T." on the side of a liquor store across the street, 40 to 50 feet away, and called the police. Thompson described the individual as a bald male, wearing a white T-shirt and baggy dark blue jeans, with a gold chain around his neck. After the call, Thompson watched the tagger and a companion walk up an alley, get in a white Honda Accord, and drive off. About 40 minutes later, the pair returned, and the tagger entered the liquor store.
Thompson called the police again to let them know the duo were back. He went over to the liquor store to alert the owner and point out the tagger. By the time Thompson got to the store, the tagger was leaving, and they passed as Thompson went in. It was the same person Thompson had seen doing the spray-painting: a bald male in a white T-shirt and dark, baggy jeans, wearing a gold chain. The tagger was "packing a cigarette" "like it was a brand new pack of cigarettes that he just bought."
Officer Manual Mendoza of the Anaheim Police Department responded to the call and arrived at the liquor store around 7:30 p.m. Driving up an alley next to the store, he saw Daniel, who matched the description of the suspect, walking out of a residence 75 yards from the store, and detained him. Mendoza examined Daniels hands and white T-shirt for paint residue, but found none.
Thompson, seated in the back of a patrol car, identified Daniel as the tagger. He picked out Daniel from among three boys, the others being Daniels younger brother and cousin, both of whom had come out of the residence when Daniel was detained. The boys, illuminated by a searchlight, were about 22 feet from the patrol car.
The Orange County District Attorney filed a petition to declare Daniel a ward of the court (Welf. & Inst. Code, § 602), alleging that he committed an act of vandalism done for the benefit of a criminal street gang known as Barrio Small Town. (Pen. Code, § 594, subds. (a), (b)(2)(A), § 186.22, subd. (d).)
The evidence at trial, in addition to that set out above, was as follows: Officer Jeff Mundy of the Anaheim City Police Department, a gang investigator, testified as an expert witness. Mundy said the graffiti — "B. S. T.," "B. S. T. R.," and "Pueblo Chico" — were the markings of a gang known as Barrio Small Town. The gangs territory includes the liquor store and telephone booths in question, and gang members commonly gather in front of the liquor store and in the adjoining alley. Barrio Small Town has about 20 members, primarily Hispanics, and shaved heads are common. Its primary activity is vandalism, specifically defacing property with graffiti. Mundy said that spray-painting was something that would gain respect within the gang and enhance an individuals reputation in the gang. Mundy opined that painting "B. S. T." on the liquor store wall was done for the benefit of the Barrio Small Town gang, and to further its purposes. He believed that the person who painted the letters had to be an active member of the gang, since anyone else would risk a beating: A non-member who painted the gangs markings would be assaulted by a Barrio Small Town member, or by a rival gang member who would assume the tagger belonged to Barrio Small Town.
Maria A., Daniels mother, testified for the defense. She said Daniel arrived home around 5:30 p.m., made something to eat, and sat down to work at his computer. For the next two hours, Maria was preparing a bottle and then feeding one of her twin babies. She was able to see Daniel the entire time, and he did not leave the house. Around 7:30 p.m., Daniel went outside after his cousin and brother told him a police officer was driving up the alley in front of the family home. A few minutes later, another son told her Daniel had been detained.
In rebuttal, Officer Mendoza testified that he had spoken to Maria shortly after he detained Daniel. Mendoza asked her if she had been able to see Daniel the entire time he was in the house, and she said no, she had been too busy with the babies.
The trial judge found that Daniel was the individual seen by Thompson, he engaged in acts of vandalism, and did so for the benefit of a criminal street gang, Barrio Small Town. The judge found the offense was a felony, with a maximum term of incarceration of three years, and sustained the petition. He explained that Thompson was a credible witness and Maria was not, and various defense attacks on the evidence (set out below) did not raise a reasonable doubt in his mind. At the dispositional hearing, Daniel was declared a ward of the court and placed on probation.
Daniel argues the evidence was insufficient because he did not fit the description Thompson gave the police — he was not wearing a gold chain, did not have any ink stains on his hands or T-shirt, and did not smell of cigarettes or have any on him. Daniel also argues Thompsons curbside identification was "questionable," Maria provided an alibi, and there was no evidence that linked him to the Barrio Small Town gang. We cannot agree.
"In resolving claims involving the sufficiency of evidence, a reviewing court must determine `whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 34.)
The evidence in this case is, without a doubt, sufficient to sustain the conviction. Thompson observed the tagger twice, once at close quarters as they passed near the entrance to the liquor store, and he identified Daniel as that individual in a curbside lineup and again in court. The case turned on Thompsons credibility, and the trial judge believed Thompson. Admittedly, Thomson had several felony convictions, but the judge did not believe they cast doubt on his testimony. To the contrary, the judge said, Thompson had no motive to lie, and "I would think that [Thompson] is somebody who would not be interested in having gratuitous unnecessary contact with the police."
Nor was it irrational to believe Thompson because of the variations between his called-in description of the tagger and Daniels appearance when arrested. A gold chain can be removed, a careful individual can spray-paint without getting any residue on his hands or clothing, cigarettes bought need not be smoked immediately, and a minor wisely may stash them somewhere when headed home. A related argument — that the tagger had to be older than 14 year old Daniel because it is illegal to sell cigarettes to a minor — unfortunately ignores reality. The taggers purchase of cigarettes did not eliminate Daniel as that individual. As the judge said, "we get kids in court day in and day out who were in possession of cigarettes. . . . It is not hard for kids to get cigarettes from retail establishments."
Daniels challenge to the curbside identification is equally misplaced. He argues the identification was untrustworthy because the other two boys were not the same age as Daniel, there was no evidence they were bald, Thompson was sitting in a moving patrol car, his view was obstructed by the wire cage in the car, and the identification was conducted quickly. These are all good points, but the accuracy of the identification was a question for the trial judge. We cannot re-evaluate the weight of the evidence at this level. The judge believed it was reliable, and we cannot say that call was unreasonable or irrational.
As for Marias alibi, suffice it to say a mother testifying for her son is not necessarily credible. Moreover, Officer Mendoza testified Maria admitted to him she was too busy to keep an eye on Daniel the entire time between 5:30 and 7:30. The trial judge was entitled to discount the alibi.
Finally, Daniel is mistaken when he asserts no evidence linked him to Barrio Small Town. Officer Mundy, testifying as a gang expert, said the tagger had to be a member of the gang because no one else would take the risk of spraying the gangs markings in its territory. That supports an inference that Daniel, the tagger, was a gang member.
Since the evidence supports the findings that Daniel was the individual who engaged in gang-related vandalism, by spray-painting the markings of the Barrio Small Town gang on the side of a building, the judgment appealed from is affirmed.
We concur:
MOORE, J.
ARONSON, J.