Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SC RD JDSQ 06-2322704
Following a contested jurisdictional hearing, the juvenile court sustained a petition charging Jeremy G., a minor, with two counts of misdemeanor vandalism (Pen. Code, § 594, subds. (a), (b)(2)(A)--counts 1 and 2). He was adjudged a ward of the juvenile court, committed to juvenile hall, and placed in the custody of the Shasta County Probation Department.
Undesignated statutory references are to the Penal Code.
The minor appeals, claiming that there was insufficient evidence to sustain count 2 of the petition. We agree.
FACTUAL AND PROCEDURAL BACKGROUND
Richard W. and his family resided across the street from the residence occupied by the minor’s family in Redding. On or about July 10, 2006 (all further calendar references are to that year), Richard W., his son Dillon, and his stepson Nicholas, were watching television during the late evening when they heard “cracks” and “bangs” outside their home.
Dillon and Nicholas then peered out the screen door of their home to see what had caused the noise. Although Dillon did not see the minor throw anything, he saw a “motion with the hand.” Nicholas heard the minor say to his sister, “look what I just did.” Dillon, Nicholas, and Richard all saw the minor and his sister running back to their house.
Richard and his sons went outside to inspect the family’s home and vehicles. Freshly broken eggs were running down the back and side of Richard’s Ford Excursion truck, and there were “a couple [of] splatter marks” on his Chevrolet Avalanche truck. Broken eggs were found on the side of their house, and on the screen door. Richard also noticed golf balls on his porch and in the gutter, and found golf balls and decorative rocks in his yard that did not belong there.
On July 27, while Richard was standing in his front yard, the minor yelled from the front porch of his home, “Hey, Richard, how do you like your new pinstriping. I fixed it for you.” The minor added that he had fixed the pinstriping with “a rock or rocks.”
Richard testified that although he sprayed off his vehicles, the “paint job [on the Excursion] [wa]s ruined,” and resulted in over $3,000 in damages. When asked what caused the damage to his vehicle, Richard responded that the damage was caused by “[e]ggs, golf balls and rock. Rock that was just the one night.”
The minor denied committing any acts of vandalism and denied making the statement about “pinstriping.”
The juvenile court found that the minor committed two acts of misdemeanor vandalism (§ 594, subds. (a), (b)(2)(A)): one on or about July 10 (count 1) and another on or about July 27 (count 2).
DISCUSSION
While conceding that substantial evidence supports the first count of vandalism committed on July 10, the minor argues that there was insufficient evidence to sustain the second charge of vandalism on July 27.
Our review is governed by the same principles applicable to adult criminal appeals. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) When a defendant challenges the sufficiency of the evidence to support a criminal conviction, “‘[t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. The court must view the entire record in the light most favorable to the judgment (order) to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the minor guilty beyond a reasonable doubt. In making such a determination we must view the evidence in a light most favorable to [the People] and presume in support of the judgment (order) the existence of every fact the trier could reasonably deduce from the evidence.’” (In re Paul C. (1990) 221 Cal.App.3d 43, 52, italics added.)
Misdemeanor vandalism occurs when a person “maliciously commits [damage to] . . . any real or personal property not his or her own . . . [in an amount] less than four hundred dollars.” (§ 594, subds. (a), (b)(2)(A); CALJIC No. 16.320.)
Undisputedly, there is sufficient evidence that the minor vandalized Richard’s property on July 10. On that date, after hearing “cracks” and “bangs,” Richard and his sons witnessed the minor and his sister running back to their house. They then discovered that eggs had been thrown against their home and vehicles, and rocks and golf balls tossed onto their property.
However, the record is devoid of evidence that the minor committed a second act of vandalismon July 27 or on any other date. The prosecutor asked Richard about one incident of vandalism on July 10, and an incriminating statement made by the minor on July 27. She never asked Richard about a second act of vandalism, and presented no evidence that Richard’s vehicle was even damaged after July 10.
The Attorney General cites three statements claimed to constitute substantial evidence that the minor committed a second incident of vandalism on July 27: (1) the minor’s statement to Richard about the “pinstriping,” (2) Richard’s testimony, “Rock that was just the one night,” and (3) the minor’s father’s response to a question posed by the minor’s counsel. We are not persuaded.
The minor’s admission on July 27, “Hey, Richard, how do you like your new pinstriping. I fixed it for you,” does not refer to more than one incident and does not mention when the “pinstriping” occurred. Moreover, there is no evidence in the record showing that Richard’s vehicle was damaged on any date other than on July 10. Thus, the statement cannot give rise to a reasonable inference that the minor vandalized Richard’s vehicle on two occasions.
Nor did Richard’s fragmentary statement, “Rock that was just the one night,” support a reasonable inference that a second incident occurred on July 27.
The Attorney General suggests that “Rock that was just the one night” meant that rock damage occurred on one night and egg and golf ball damage on another. However, the testimony showed that rocks, golf balls and eggs were all thrown on the same night. Richard was never asked about a second incident.Thus, we cannot infer from Richard’s enigmatic remark that his property sustained damage on two separate dates.
At most, “Rock that was just the one night” invites speculation there might have been two incidents. However, “‘“‘“[i]t is axiomatic that ‘an inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork.’”’”’” (People v. Herrera (2006) 136 Cal.App.4th 1191, 1205, quoting People v. Stein (1979) 94 Cal.App.3d 235, 239.) The prosecutor could easily have filled in the gap by asking Richard about a second incident and receiving an affirmative response. In the absence of such evidence, we cannot conclude that Richard’s nonresponsive statement “Rock that was just the one night,” constitutes substantial evidence that there was a second act of vandalism.
The Attorney General also points to the minor’s father’s testimony in response to a question about his knowledge of the incident that allegedly occurred on July 10. The father replied, “Is that the egg throwing or the other one because the only one I remember is the one he was accused of scratching.” At most, this testimony demonstrates that the minor’s father knew that his son was accused of two acts of vandalism. This is not surprising, in light of the fact that there were two counts in the charging petition. The father’s statement does not amount to an admission that his son committed two acts of vandalism, much less constitute evidence that he did, in fact, vandalize Richard’s vehicle on July 27.
Viewing the facts in the light most favorable to the juvenile court’s decision, we find insufficient evidence that the minor committed vandalism on July 27.
DISPOSITION
The order is vacated and the cause is remanded to the juvenile court, with directions to enter a new order striking count 2 of the petition and to conduct a new disposition hearing on the remaining count. In all other respects, the judgment (order) is affirmed.
We concur: DAVIS, Acting P.J., CANTIL-SAKAUYE, J.