Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. DL033240, Robert Hutson, Judge.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Sills, P. J., Rylaarsdam, J., and Ikola, J.
Appellant Randy S. was declared a ward of the juvenile court and placed on formal probation following a contested jurisdictional hearing after the court found true allegations of misdemeanor vandalism. (Welf. & Inst. Code, § 602.) We appointed counsel to represent him on appeal. Counsel filed a formal brief in which he set forth the procedural history and facts of the case in accordance with Anders v. California (1967) 386 U.S. 738 and People v. Wende (1979) 25 Cal.3d 436. Counsel did not argue against the client but advised us no issues were found to argue on appellant’s behalf and identified three potential claims for our consideration. Appellant was given 30 days to file written argument on his behalf. That period has passed and we have received no communication from him.
I
An investigator for the district attorney’s office was eastbound on the Garden Grove freeway in rush hour traffic one morning when he saw two minors on the other side of the freeway. One was tagging the letter “T” with brown paint. The other, appellant, was straddling a bicycle an arm’s length away from the tagger and facing eastbound. The investigator called the local police. He then turned off the freeway and traveled down a side street where he saw the minors, walking to school. The investigator stopped and waited for the police. When an officer arrived, he pointed out the minors to him.
The officer stopped the minors and the tagger admitted he had spray-painted the wall. He also fingered appellant as the lookout. He said appellant had been a member of the tagging crew for almost three years, had given him the spray paint can earlier that morning, and had told him when to start tagging. Appellant was less forthcoming. After being advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), he denied everything. He said he had no moniker, was not a gang member, and had not been a look-out.
II
Counsel identified three issues for our consideration: (1) no substantial evidence supports the judgment; (2) it was improper to admit the tagger’s prior inconsistent statements; and (3) the juvenile court erred in overruling objections to the investigator’s opinion testimony. We find no error. Our independent review of the record also fails to disclose any further issues to be addressed.
A. Substantial Evidence
Appellant suggests there is insufficient evidence he was an aider and abettor to the offense of vandalism. In determining whether sufficient evidence supports the judgment, “‘“we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact”’” could sustain the petition. “We presume in support of the judgment the existence of every fact that could reasonably be deducted from the evidence. We may reverse for lack of substantial evidence only if ‘“upon no hypothesis whatever is there insufficient substantial evidence to support”’ the sustaining of the petition for misdemeanor vandalism. [Citations omitted.]” (People v. Garcia (2007) 153 Cal.App.4th 1499, 1508.)
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.” Appellant was asserted to have been the tagger’s accomplice. “[A]n accomplice is one who aids or promotes the perpetrator’s crime with knowledge of the perpetrator’s unlawful purpose and an intent to assist in the commission of the target crime. [Italics in original.]” (People v. Williams (2008) 43 Cal.4th 584, 637; see Pen. Code, § 31.) 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.)
Here, the key witness was an investigator for the district attorney’s office who saw the crime in progress. Not only was he a percipient witness but he was a trained observer. His background and experience showed he was an expert in investigating property crimes including graffiti vandalism. He had investigated many of these crimes in the local area and had spoken with many taggers, including those who had identified their roles as lookouts for other taggers. He explained that in the context of graffiti vandalism a “lookout” was someone who “looks around and tries to [] alert the person committing the graffiti if anyone is approaching or if anyone has spotted them or has not noticed them.”
On the morning of the crime he saw the tagger marking the wall. He also saw appellant sitting on a bicycle close to the tagger looking down the pedestrian path and the freeway. Based on his training and experience it was his opinion appellant was a lookout. His testimony was consistent with the tagger’s statements to the police that appellant was a lookout. The court found the investigator’s testimony credible. “It is clear to the court [the investigator] is correct. I believe him. I accept him as a trained observer. I accept his testimony. [¶] [And] I accept the conclusion that [the investigator] came to [] about the person who was observing. And the surrounding and supporting testimony and facts support his conclusion.” It is clear from the investigator’s testimony and the surrounding facts, and as evidenced by the tagger’s statements, that sufficient evidence supports the court’s sustaining of the petition.
B. Prior Inconsistent Statements
Appellant next asks whether the tagger’s “prior inconsistent statements are admissible as substantive evidence of the offense.” By way of background, the tagger was called as a witness by the district attorney. His testimony in court was, however, vastly inconsistent with his statements to the police officer. The district attorney then called the investigator who testified as to what the tagger had told him the morning of the crime.
It is established that prior inconsistent statements may be admitted as substantive evidence of the offense. (CALCRIM No. 318; People v. Golde (2008) 163 Cal.App.4th 101, 119; People v. Felix (2008) 160 Cal.App.4th 849, 859.) Thus, even though the court relied primarily on the investigator’s testimony in sustaining the petition, it also properly admitted and relied upon the tagger’s prior inconsistent statements to the police officer the morning of the crime as substantive evidence of the offense.
C. Objections to Opinion Evidence
Finally, appellant asks “whether the juvenile court erred in overruling defense objections to [the investigator’s] opinion testimony that [appellant] was acting as [the tagger’s] lookout, which was the ultimate issue in the case.” As a general rule, opinion testimony may go to the ultimate issue in the case. (Evid. Code, § 805 [“Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact”].) Whether opinion testimony was properly admitted or excluded in a particular case rests within the sound discretion of the trial court and “is reviewed under the deferential abuse of discretion standard.” (People v. Hoyos (2007) 41 Cal.4th 872, 910;see also People v. Valdez (1997) 58 Cal.App.4th 494, 506.)
We find no abuse of discretion here. An expert may testify as to the definition of a “lookout.” (See People v. Brown (1981) 116 Cal.App.3d 820, 829 [expert properly allowed to testify as to what a “runner” is in drug trafficking].) Whether the investigator could also testify that appellant was a lookout could be questioned (ibid. [error to allow expert to testify that defendant was a runner]), but given he was a percipient witness, this was a court trial, and there was other evidence that appellant had acted as a lookout, any possible error was harmless.
III
The judgment is affirmed.