Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Gregory W. Jones, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super. Ct. No. DL020883
Patricia L. Brisbois, 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, Senior Assistant Attorney General, Melissa Mandel and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Genaro G. appeals from the finding of the juvenile court sustaining a wardship petition alleging that he committed the crime of vandalism to benefit a criminal street gang. He contends the court improperly relied on out-of-court testimonial statements to connect him to the crime and there was insufficient evidence to support the finding. We affirm.
FACTS
Genaro was already a ward of the juvenile court on probation when he was arrested for allegedly engaging in gang-related vandalism in June 2006. At the hearing on the petition subsequent, the following testimony was given:
At about 9:00 p.m. on June 13, 2006, Deputy Sheriff Lynn Ridenour responded to “a call of . . . three males[] graffiti’ing in the back of the business at Raton Way off of El Toro [Road.]” Earlier that night, there had been a report of graffiti activity about two and a half blocks away. The person who called the police said “three male juveniles, shaved heads, they said Hispanics in a blue Honda with license, last three numbers 902.”
There had also been graffiti painted the night before on nearby apartment complexes near to the Raton Way business location, and Ridenour expected to see the new graffiti in the same place because the apartment management painted over it that morning. “We figured that they might go back over to repaint the area again, re-graffiti it.” When Ridenour approached the area, he turned off his headlights “in case somebody was doing something I could sneak up on them or catch them doing stuff.” After Ridenour passed the apartment complexes, he pulled into the business parking lot and saw a parked blue Honda with a license plate matching the partial plate number they had been given earlier. He turned on his lights and saw three males facing a wall with graffiti on it. “They all turned around and looked at me in shock and – like they were going to run.” The one closest to the deputy, later identified as Cesar Gomez, put down a can of spray paint and ran; he was holding black cotton gloves. Ridenour gave chase, and when he caught Gomez, he searched and handcuffed him. The other two males, later identified as Genaro G. and Austin Ledman, ran to the blue Honda and jumped inside.
By this time, other officers had arrived at the scene. Genaro and Ledman were also searched and handcuffed. Ridenour found a “big black magic marker” in Genaro’s right front pocket. Other officers searched the Honda and found a black marker under the driver’s seat, a cap for a can of black spray paint on the rear floor behind the driver’s seat, and another black cap on the floor in front of the passenger’s seat. A can of black spray paint was found outside the car on the ground. Two officers at the scene testified the graffiti on the wall looked and smelled fresh.
Deputy Sheriff Craig Lang testified as a gang expert. He stated he was familiar with the Varrio Viejo street gang, which claimed territories in San Juan Capistrano. The location of the graffiti in this case was in an area claimed by a rival gang, the Family Mob. Lang translated the graffiti symbols and opined they were executed by the Varrio Viejo gang in Family Mob territory to show disrespect, “like they don’t care if it’s their area.”
Over the defense’s objections, Lang testified that he interviewed the three suspects at the Aliso Viejo Police Station shortly after they were arrested. Ledman admitted he was at the scene of the crime but was the lookout while Gomez or Genaro did the tagging. Gomez said he picked up Genaro and Ledman in his car, and one of them put paint in the back of the car. Genaro told Lang he had been “hanging out with Varrio Viejo for approximately four months.” While he was interviewing Genaro, who was not wearing a shirt at the time, Lang noticed “a couple black marks on his back, and these appeared to be paint.” He also noticed black marks that appeared to be paint on Genaro’s pants.
Lang opined that all three suspects were active participants of the Varrio Viejo gang and the graffiti was committed for the gang’s benefit. He based this opinion on his interviews with them and reports of this incident and others. His opinion that Geraro was an active participant in Varrio Viejo was bolstered by a report of an incident on June 12, the night before this crime, indicating Genaro had been detained by deputies in response to a report of vandalism in progress. The deputies noticed that “Old Town,” a translation of Varrio Viejo, was written on a step. “Witnesses came forward and positively I.D.’d [Genaro] as a person that did it. But then changed their minds [about assisting with the prosecution.]” The defense objected to Lang’s testimony about the witnesses’ statements.
The juvenile court acknowledged that mere presence at the scene would not be sufficient to find Genaro responsible as a principal in the vandalism offense. But the court stated, “In this case we’ve got the presence of three individuals at a late hour in the evening, with no one else around. Fresh paint on the wall. . . . The smell of paint was present in the air. The only reasonable conclusion that one could draw from those facts is that the individuals in this vehicle committed the acts of vandalism.” The court continued, “The original officer on the scene testified that he saw a paint can near one of the three individuals. All three individuals ran when the officer . . . arrived. [¶] So we’ve got presence at the scene of the crime; we’ve also got no legitimate reason for this minor to be there; he lives in San Juan Capistrano, some distance away. . . . [T]here was evasive action to some extent. [¶] We’ve also got testimony of a combination of paint cans and caps for spray cans in the area. The minor has a marker on his person. What one would be doing with a marker in their pocket 10 miles from home in an area where there is graffiti at 8:45 or so at night[?] It’s hard to imagine that there is a legitimate reason for that factual scenario.”
The court continued, “Of significance also is the fact that . . . this vehicle was seen approximately two and a half blocks away . . . . And the occupants of the vehicle were involved in vandalizing property there.” The court also mentioned the paint on Genaro’s back and on his pants, Lang’s opinion that Genaro was a gang member, and Genaro’s admission that he had been hanging out with the gang for some months. “If you add all of these factors and all of the circumstances together, the inescapable conclusion is that he is a member of this team. Whether he is batting ninth and playing right field or playing shortstop and hitting cleanup, or waiting in the bullpen as a relief pitcher, he shares their socially unacceptable agenda and he is on board for whatever they are doing. [¶] And it’s apparent to me that he got in the car with these individuals to go into a rival area to commit this offense and to do whatever was necessary to further that objective.” The juvenile court found true the allegation that Genaro committed vandalism for the benefit of a criminal street gang.
DISCUSSION
Genaro contends the juvenile court violated his right to confrontation under the Sixth Amendment by admitting and then relying on the out-of-court statements of Ledman, Gomez and the unidentified witness to find the allegation of vandalism true. He cites Crawford v. Washington (2004) 541 U.S. 36, which held that testimonial out-of-court statements to a law enforcement officer are inadmissible unless the witness is unavailable for trial and the defendant had a prior opportunity to cross-examine the witness. A testimonial statement is one made under circumstances which “objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 126 S.Ct. 2266, 2273-2274.)
The People point out that the juvenile court admitted the evidence as the basis for Lang’s expert opinion, not for the truth of the statements; the juvenile court stated it would not consider the evidence for any other purpose. Crawford does not apply when out-of-court testimonial statements are used for purposes other than to establish the truth of the matter asserted. (Crawford v. Washington, supra, 541 U.S. at p. 59, fn.9.) Therefore, “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion.” (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 [gang expert could rely on conversations with other gang members to form opinion that defendant was a gang member].)
Genaro argues the juvenile court impermissibly relied on the out-of-court statements to connect him to the vandalism. Pointing to the court’s comments on the record, he contends the court relied on Lang’s testimony about a witness’s statement identifying him as the one who committed the vandalism the night before, on June 12, and on Gomez’s statement about picking him up at Ledman’s house. Our reading of the record does not support this contention.
The juvenile court referred to the incident earlier on the same night, June 13, where the blue Honda was identified at the scene of graffiti being painted by three male juveniles two and a half blocks away from the vandalism in this case. The evidence of the earlier June 13 incident was not part of Lang’s testimony and was admitted without objection. And there was ample evidence to connect Genaro to the blue Honda other than Gomez’s statement that he picked Genaro up. The juvenile court’s conclusion that Genaro committed the vandalism was not based on the out-of-court statements.
Genaro next argues there is insufficient evidence to support the finding that he committed vandalism. He claims the evidence showed only that he was present at the scene, not his participation. We disagree.
Penal Code section 594, subdivision (a)(1) defines the crime of vandalism as maliciously defacing the real or personal property of another “with graffiti or other inscribed material.” One who aids and abets the commission of a crime shares in the guilt of the actual perpetrator. (People v. Mendoza (1998) 18 Cal.4th 1114, 1122.) “An aider and abettor . . . must ‘act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ [Citation.]” (Id. at p. 1123.)
Genaro’s presence at the scene, while not alone sufficient to show his intent to aid and abet the crime, is a factor tending to show intent to commit or encourage the crime. (People v. Hill (1998) 17 Cal.4th 800, 851.) “Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense. [Citations.] In addition, flight is one of the factors which is relevant in determining consciousness of guilt. [Citation.]” (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.) Genaro was present at the wall which contained fresh graffiti, he ran when discovered, he had paint on his clothes and body and a marker in his pocket. Furthermore, the graffiti was related to the gang with which he associated. “There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions.” (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
We review the evidence in the light most favorable to the judgment, drawing all reasonable inferences and “presum[ing] . . . the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Under this familiar standard, we find the evidence supports the juvenile court’s finding that the allegations of the petition were true.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, J., IKOLA, J.