Opinion
F041740.
7-1-2003
In re MATTHEW L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MATTHEW L., Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stan Cross and Susan J. Orton, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court found true the allegations, in a fourth amended petition, that appellant Matthew L. had committed, among other crimes, vandalism (Pen. Code § 594, subd. (a); count IV), possession of aerosol spray paint with the intent to deface property (Pen. Code, § 594.1, subd. (e)(1); count VI), and possession of a prohibited felt tip marker with the intent to commit vandalism (Pen. Code, § 594.2, subd. (a); count VIII). At the disposition hearing, the court, adopting the recommendations of the probation department, set the maximum period of appellants confinement at 9 years 1 month. Appellant was ordered to spend 365 days in the custody of the Probation Youth Facility and also ordered to obey all the terms of a prior probation as well as several new probationary terms.
The maximum period of confinement, as set by the court, for each of these counts was as follows: count IV (Pen. Code, § 594, subd. (a)) 4 months; count VI (Pen. Code, § 594.1, subd. (e)(1)) 2 months; and count VIII (Pen. Code, § 594.2, subd. (a)) 2 months.
Appellant, along with two other juveniles, was arrested on the roof of a laundromat. All three had silver paint residue on their hands. A wall on the roof had been recently spray painted with graffiti. Just below the graffiti, a backpack containing five cans of spray paint was found.
Some months later, appellant, who was then on probation, was stopped while walking with two others on a public street. A search of appellant yielded a "red felt tip type marker."
DISCUSSION
I.
The evidence was insufficient to support the juvenile courts true finding that appellant was in possession of a felt tip marker with the intent to commit vandalism because there was no proof the marker was a prohibited item under Penal Code section 594.2, subdivision (c)(1). (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1134 [standard of review for substantial evidence in juvenile case].)
Penal Code section 594.2 forbids the possession of certain identified items, including a felt-tip marker, with the intent to commit vandalism or graffiti. A "`Felt tip marker" is "any broad-tipped marker pen with a tip exceeding three— eighths of one inch in width, or any similar implement containing an ink that is not water soluble." (Pen. Code, § 594.2, subd. (c)(1).)
The fact that the pen itself was never introduced into evidence is not in and of itself determinative. (See People v. Henderson (1949) 34 Cal.2d 340, 343, 209 P.2d 785 [accomplices testimony regarding defendants possession of gun similar to one used in robbery sufficient corroboration even though gun not introduced into evidence]; People v. Anderson (1949) 87 Cal. App. 2d 857, 861, 197 P.2d 839 [failure to introduce gun into evidence not fatal to finding defendant was armed]; People v. Munoz (1961) 198 Cal. App. 2d 649, 18 Cal. Rptr. 82; 653 [prosecution for possession of heroin, not necessary heroin itself be introduced into evidence]; People v. Cisneras (1963) 214 Cal. App. 2d 62, 67-68, 29 Cal. Rptr. 146 [same].) However, in this event, the record must contain either an adequate description of the object or evidence that the finder of fact actually viewed the object so as to be able to determine whether it was a prohibited one. (See People v. Gonzales (1936) 14 Cal. App. 2d 537, 539, 58 P.2d 741 [no testimony regarding barrel length of weapon; however weapon exhibited to jury and introduced into evidence]; People v. Cruz (1931) 113 Cal.App. 519, 520-521, 298 P. 556 [gun not introduced into evidence but exhibited to jury; sufficient to support finding weapon fell within prohibited class]; People v. Williams (1976) 56 Cal. App. 3d 253, 255, 128 Cal. Rptr. 408 [witnesses description of gun used in robberies sufficient even though gun not introduced into evidence to support jurys Penal Code section 12022.5 finding];People v. Hayden (1973) 30 Cal. App. 3d 446, 452, 106 Cal. Rptr. 348 [gun not found; testimony of witnesses sufficient to support jurys true finding as to Penal Code section 12022.5], disapproved on other grounds in People v. Rist (1976) 16 Cal.3d 211, 222, fn. 10, 127 Cal. Rptr. 457, 545 P.2d 833, superseded by constitutional amendment on other grounds as stated in People v. Castro (1985) 38 Cal.3d 301, 211 Cal. Rptr. 719, 696 P.2d 111.)
The pen was marked for identification but was never offered. According to the clerks transcript, the pen was a black marker, not a red felt tip marker.
Here, no direct record evidence establishes that the marker had a tip with a width exceeding three-eighths of an inch or contained ink that was not water-soluble. Nor is there anything in the record which shows that the trial court, as the finder of fact, actually examined the marker, let alone in a manner sufficient to determine whether it fell within the definition in Penal Code section 594, subdivision (c)(1). (See, cf., In re Khamphouy S., supra, 12 Cal.App.4th at pp. 1134-1135 & fn. 3; [trial court examined ammunition and said "It looks live to me;" also testimony that ammunition found in minors possession matched ammunition found in loaded . 38-caliber revolver seized from vehicle in which minor was passenger].)
The police officers expert testimony that the felt tip marker could "definitely" be used to tag does not prove either of the statutory conditions. A ball point pen can be used to inscribe graffiti, but it is not within the ambit of the statute.
In finding the allegation true, the juvenile court stated:
"THE COURT: All right. Were going to start with Count 8. Count 8, the court is going to find that to be true for the reasons previously stated. I believe theres evidence here that indicates the minor was in possession of this with the intent. There is evidence of the fact that hes a tagger, that he belongs to a tagging crew. Theres also evidence that hes involved in another incident involving graffiti on April the 30th. All those factors, the testimony, primarily of [] Officer Jordan, indicate to me that this minor was in possession of this felt tip marker because he had the intent to commit a vandalism. So Count 8 is true, a violation of Penal Code section 594.2 as a misdemeanor." (Italics added.)
As we see it, there is nothing in the courts reference to this which supports a conclusion the court actually examined the marker, read its label, or measured, by ruler or by eyeball, the width of its tip. The word "this" does not prove that, when the statement was made, the court actually had the marker in its possession or within a viewing distance close enough to accurately determine the solubility of its ink or the dimensions of its tip. It is entirely possible that, when the court made the statement, the marker was elsewhere in the courtroom, such as in the possession of the clerk, and was merely pointed to by the court when it made its finding. We see no reason why we should indulge in what would be an entirely speculative inference in order to save the prosecutors case when the prosecutor neglected to take even the most minimal steps to himself save the case and establish the violation, such as by offering the marker in evidence or having a witness testify to it conformance with the statutory conditions. (See In re Khamphouy S., supra, 12 Cal.App.4th at pp. 1137-1138, dis. opn. of Work, J.)
II.
A.
The condition of probation which prohibited appellants association with "any person involved in a tagging crew" during the probationary period is overbroad. We will therefore modify it to read that: "The minor is not to associate with any person known to him to be involved in a tagging crew." (See People v. Lopez (1998) 66 Cal.App.4th 615, 628-629.)
Though appellant did not object to the imposition of the condition at sentencing, there was no waiver of the issue for purposes of appeal. (See In re Justin S. (2001) 93 Cal.App.4th 811, 814-815 [waiver rule is limited "to . . . unreasonableness grounds"; no waiver where issues are "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court"]; In In re Kacy S. (1998) 68 Cal.App.4th 704, 713; In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033.)
B.
The probation condition which prohibited appellant from being "in possession of weapons" is neither over broad nor vague. (People v. Horner (1970) 9 Cal. App. 3d 23, 28, 87 Cal. Rptr. 917 ["A statute is not unconstitutionally uncertain if general terms are used therein without definition, where the term is one which is commonly used or understood, or has acquired a well defined meaning"]; Nash v. United States (1913) 229 U.S. 373, 377, 57 L. Ed. 1232, 33 S. Ct. 780 ["The law is full of instances where a mans fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree"]; United States v. Harriss (1954) 347 U.S. 612, 617, 98 L. Ed. 989, 74 S. Ct. 808 [an essential component of due process requires persons be given fair notice of acts which may lead to a loss of liberty]; Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1106, 892 P.2d 1145 [same]; In re Jason J. (1991) 233 Cal. App. 3d 710, 719, 284 Cal. Rptr. 673, disapproved on other grounds, People v. Welch (1993) 5 Cal.4th 228, 237, 851 P.2d 802 [fair notice principle applies to a probation condition].)
We assume the failure to object in the juvenile court did not operate as a waiver.
The probation officers recommendation, which was adopted by the court, proposed that appellant be prohibited from possessing:
"any (x) firearm, (x) knife, (x) club, (x) explosive, (x) self-manufactured weapon, (x) sporting equipment or tools that could be used as a weapon unless participating in the specific sport or employment where the sporting equipment or tool is utilized."
The generic term "weapon" has an accepted, plain and well-settled commonsense meaning, which reasonable persons can understand. (People v. Rodriquez (1975) 50 Cal. App. 3d 389, 398-399, 123 Cal. Rptr. 185 [deciding terms "deadly" and "weapon" were not vague as used in Pen. Code, § 4574].) Websters 10th Collegiate Dictionary (2001) at page 1334, defines "weapon" as "1: something (as a club, knife, or gun) used to injure, defeat or destroy; 2: a means of contending against another." Websters Third New International Dictionary of the English Language (1986) at page 2589 defines "weapon" as: "an instrument of offensive or defensive combat: something to fight with: something (as a club, sword, gun, or grenade) used in destroying, defeating, or physically injuring an enemy." These definitions comport with the probation condition in issue, which was included in the terms of probation signed by appellant as part of his disposition hearing. (See also In re Justin S., supra, 93 Cal.App.4th at pp. 815-816 [requiring minor not to engage in "delinquent behavior" in connection with condition of probation was not vague; term provided meaning by reference to Welf. & Inst. Code, §§ 601 & 602]; In re Jason J., supra, 233 Cal. App. 3d at p. 719 [term "dark" regarding minors curfew as condition of probation is sufficiently precise].)
III.
Penal Code section 654 did not preclude imposition of punishment for both vandalism (Pen. Code, § 594) and possession of aerosol spray paint for the purpose of defacing property (Pen. Code, § 594.1, subd. (e)(1)). (See People v. McGuire (1993) 14 Cal.App.4th 687, 697-699 [proper to impose separate punishment for being under the influence of methamphetamine and for driving a vehicle while under influence of methamphetamine]; People v. Maese (1980) 105 Cal. App. 3d 710, 727-728, 164 Cal. Rptr. 485 [punishment properly imposed for possession of heroin and being under the influence of heroin, where amount of heroin exceeded amount which could be used in "relatively short time"]; cf., People v. Holly (1976) 62 Cal. App. 3d 797, 133 Cal. Rptr. 331 [appeal by People contending court improperly found Pen. Code, § 654 applicable prohibiting dual punishment for possession of, and being under the influence of, heroin; factual question resolved in favor of respondent supported by substantial evidence].)
Penal Code section 594, subdivision (a)(1) provides:
"Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: [P] (1) Defaces with graffiti or other inscribed material."
Penal Code section 594.1, subdivision (e)(1) provides:
"It is unlawful for any person under the age of 18 years to possess etching cream or an aerosol container of paint for the purpose of defacing property while on any public highway, street, alley, or way, or other public place, regardless of whether that person is or is not in any automobile, vehicle, or other conveyance."
The trial courts decision to impose punishment for the minors separate violations of Penal Code section 594 and Penal Code section 594.1 was a question of fact, decided adversely to the minor, and supported by substantial evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313; People v. Coleman (1989) 48 Cal.3d 112, 162, 255 Cal. Rptr. 813, 768 P.2d 32 [question of fact for sentencing court to determine whether defendant had separate intent and objective for each offense].) Penal Code section 594 prohibits the act of vandalism itself, while Penal Code section 594.1 prohibits possession of the means of committing an act of vandalism. Appellant had been in possession of five aerosol spray paint cans, carried in a backpack, and had also vandalized the wall atop the laundromat. Though the spray cans were the tools used to vandalize the specific property, the trial court could rationally have concluded that the number of cans indicated an intent on appellants part to engage in additional acts of mischief, including vandalism, directed at different property and involving separate victims. (See In re David D. (1995) 52 Cal.App.4th 304, 310-311 [prosecution cannot aggregate 34 separate acts of misdemeanor vandalism so as to make acts a felony, where each act was an offense against a separate victim and a separate transaction although occurring as part of a graffiti spree]; People v. Spirlin (2000) 81 Cal.App.4th 119, 130-131 [defendant could not be punished for all three violations of felon in possession of the same firearm used in three separate armed robberies]; see People v. Douglas (1995) 39 Cal.App.4th 1385, 1393-1394 ["Multiple punishment ... may be imposed where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives"].)
DISPOSITION
The true finding as to count VIII and the term of confinement imposed for count VIII are reversed. In all other respects the disposition order is affirmed, but the term of probation relating to appellants association with persons in a "tagging crew" is modified to read as follows: "The minor is not to associate with any person known to him to be involved in a tagging crew."