Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GJ 26799, Robert Leventer, Judge.
Lea Rappaport Geller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant D.M., born in 1994, was found to have committed vandalism in excess of $400; the court ruled that the offense was a felony. Appellant was ordered to serve home probation for a period not to exceed three years. The court also entered an order fixing the maximum term of confinement at three years. We affirm, with the exception of the last-named order, which we vacate.
FACTS
During a period of about three weeks during October 2008, officials at Burbank’s John Burroughs High School found and photographed 19 graffiti at various school locations. The graffiti bore the logo “S.L.U.,” which stands for “skate like us.”
Appellant was spotted with a backpack with the logo S.L.U. When questioned by school officials, he admitted that he had done the graffiti. At trial, he testified that he was the perpetrator of the graffiti, although he tried to hedge his bets by claiming that some unidentified friends did some of them. When confronted with the fact that he had admitted to doing all of them, he maintained that he said that to protect his friends.
DISCUSSION
1. There Is Substantial Evidence That the Damages Exceeded $400
Penal Code section 594, subdivision (b), which appellant was found to have violated, provides that if the damage caused by the graffiti exceeds $400, the offense is a felony. It cost $75 to remove one defacement, which brought the total damages to $1,425.
Appellant contends that “it was never made clear [at trial] how much graffiti appellant admitted to doing.”
An assistant principal, Jay Gudzin, testified at trial that appellant admitted to doing all of the graffiti. Appellant acknowledges this fact, but seeks to undermine this testimony by citing the circumstance that Gudzin “had not shown any photographs to appellant and had only been involved in an initial discussion with appellant.”
That Gudzin did not show any photographs to appellant and had one discussion with him does not detract from the fact appellant admitted to Gudzin that he had done all of the graffiti; indeed, these supposed defects are irrelevant when it comes to the admission, i.e., the confession. Under the substantial evidence test (In re George T. (2004) 33 Cal.4th 620, 630), Gudzin’s testimony is enough to support the trial court’s conclusion that the damage exceeded $400. We note that this issue was argued at trial and that the court chose to believe Gudzin. This decision was reasonable and, under the substantial evidence test, we are required to affirm it.
2. The Maximum Term of Confinement Is Vacated
Respondent contends, citing In re Ali A. (2006) 139 Cal.App.4th 569, 573-574, that it is not necessary to strike the order setting the maximum term of confinement because the court in Ali did not do so, concluding that such an order is of no force or effect.
We have a different view of the matter.
“Appellant was not removed from his mother’s physical custody. This means that the necessary predicate for specifying a term of imprisonment does not exist. The sentencing authority of a court in almost all instances is prescribed by statutory law, as it is in this case. The statute did not empower the court to specify a term of imprisonment and that should have been the end of the matter. Yet, as others courts have done, this court nonetheless specified a term, namely the maximum term. Courts utilizing this technique may have the best of reasons, such as ‘sending a message’ to the juvenile that the transgression was serious. But, if the Legislature thought that this should be done, it would have been easy to write the statute to permit this practice. We think it should cease. The criticism of this practice in prior opinions without actually ordering a correction of the disposition seems to have had little effect. Thus, our order is to strike the specification of a term of imprisonment.” (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)
For the reasons set forth by us in In re Matthew A., we disagree with respondent and vacate the order setting the maximum term of confinement.
DISPOSITION
The maximum term of confinement is vacated and stricken. In all other respects, the judgment is affirmed.
We concur: BIGELOW, P. J. RUBIN, J.