Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. DL025887, Ronald P. Kreber, Judge.
Denise M. Rudasill, 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, Assistant Attorney General, Jeffrey J. Koch, Scott C. Taylor and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Sebastian M. challenges the juvenile court’s adjudication he possessed graffiti tools with the intent to commit vandalism or graffiti. (Pen. Code, § 594.2, subd. (a).) He contends: 1) The court erred in allowing the prosecution to impeach him with statements taken in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); and 2) there is insufficient evidence he intended to commit vandalism or graffiti. We reject his contentions and affirm the judgment.
FACTS AND BACKGROUND
On July 26, 2006, at about 10:45 p.m., Sebastian was walking on the street near an apartment complex in Laguna Hills. He was 16 years old and lived four or five miles away at the time. Accompanying him was an unidentified male on a bicycle. As they were making their way, Deputy Sheriff Sammy Perales approached them. The cyclist abruptly peddled away, but Sebastian made no attempt to flee. When Perales told him to stop, he complied and spoke with the officer.
Perales asked him if he had any stolen property in his backpack. Sebastian said no and gave the officer permission to search the pack. Inside, Perales found 20 marking pens and a sketchpad that had the word “Seek” written throughout its pages. Perales asked Sebastian to explain the items. He said he belonged to a “tagging crew” and his moniker was Seek. Because Perales did not read Sebastian his Miranda rights, the court excluded these statements.
Perales was allowed to testify about his experience with graffiti, though. He said people who draw graffiti are known as “taggers.” They like to sign their work with a unique moniker so everyone will know it is theirs. Indeed, a tagger’s moniker is like a signature, Perales said. He explained it is common for taggers to practice writing their moniker over and over in a notebook. Then, when they go out to draw graffiti, they will bring the notebook with them and sketch their moniker “right off . . . the book onto a wall.”
Based on the number of times “Seek” appeared in Sebastian’s sketchpad, and the way the word was colored, Perales believed it was consistent with the moniker of a tagger. He said the colors show “a particular style of the person, of the artist. Certain artists will use certain colors and only certain colors. It would be found in their repertoire of graffiti, in many cases.” Perales also believed the markers in Sebastian’s backpack were consistent with those used for tagging. On cross-examination, Perales admitted, however, that such markers are available for purchase at art stores, and not everyone who buys them is a tagger.
At the close of the prosecution’s case-in-chief, Sebastian moved to dismiss the allegation he possessed graffiti tools with the intent to commit vandalism or graffiti. Defense counsel argued there was insufficient evidence of Sebastian’s intent in this regard. However, saying it was convinced beyond a reasonable doubt Sebastian had the markers to write graffiti, the court denied the motion.
At that point, Sebastian took the stand in this own defense. He said he was walking home from his girlfriend’s house when Perales stopped him. When defense counsel asked him why he had the markers and the sketchpad, he said “because I like to draw in my sketchbook.” Asked if he was going to use the markers to draw on anyone else’s property, he said no.
During cross-examination, the prosecutor asked Sebastian if he told Officer Perales he was part of a tagging crew. Defense counsel objected and reminded the court that per Miranda, it had previously excluded Sebastian’s statement in this regard. The court recognized this, but it allowed the prosecution to pursue this line of questioning for purposes of impeachment. Sebastian then admitted he told Perales he was in a tagging crew called Killer Graffiti Squad and his moniker was Seek.
The trial court sustained the allegation Sebastian possessed graffiti tools with the intent to commit vandalism or graffiti. In so doing, the court relied on the circumstances of the encounter, the nature of the items Sebastian had in his possession, and Perales’ opinions. The court also observed “taggers always put a moniker with their drawings, and certainly from the statements taken on cross-examination of minor, he did have a moniker and that [] moniker was also in the sketchbook.”
I
Sebastian claims the court erred in allowing the prosecution to elicit his statements to Officer Perales for purposes of impeachment. The claim is not well taken.
“It is firmly established that the prosecution may use a prior inconsistent statement to impeach the testimony of a voluntarily testifying defendant, even though the statement was obtained in violation of the prophylactic rules of Miranda.” (People v. Collins (1996) 45 Cal.App.4th 849, 873.) Indeed, the United States Supreme Court has made clear that a Miranda violation does not amount to “a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” (Harris v. New York (1971) 401 U.S. 222, 226.) “It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.” (Walder v. United States (1954) 347 U.S. 62, 65.)
Sebastian acknowledges as much. However, he argues “his testimony on direct did not conflict with the statements he made to police and consequently, the illegally obtained statements were not admissible for impeachment purposes . . . .” We disagree. “[W]here a defendant takes the stand and testifies to a fact relevant to his guilt or innocence in a manner substantially at variance with a prior out-of-court statement he may be impeached by the prior statement even though obtained in violation of Miranda.” (People v. Castaneda (1975) 52 Cal.App.3d 334, 341.)
Here, Sebastian testified the markers in his backpack were for drawing in his sketchbook, not to write graffiti. However, he told Officer Perales he was in a tagging crew, which is a group devoted to writing graffiti. He also admitted his moniker was Seek, a name which appeared over and over in the sketchbook. The clear inference from Sebastian’s statements and the circumstances surrounding them is that he had the markers to draw graffiti. As this was precisely what Sebastian denied on the stand, the statements were sufficiently at variance with his testimony as to be admissible for purposes of impeachment.
Relying on People v. Taylor (1972) 8 Cal.3d 174 (Taylor), Sebastian also contends he had the right to deny the allegations without fear of impeachment by the use of his prior statements. In Taylor, the court ruled a defendant’s illegally obtained statements are not admissible to impeach his testimony where he “merely denies committing the crime charged and it is the prosecutor who, on cross-examination, elicits an expected denial” to a broad question in order to set the stage for impeachment. (Id. at p. 182.) The prosecution cannot, in other words, “‘build a straw man’” on cross-examination for purposes of impeachment. (Id. at p. 183.)
In this case, however, it was defense counsel, not the prosecutor, who elicited Sebastian’s explanation as to why he had the markers. That is a key distinction from Taylor. (Also compare Agnello v. United States (1925) 269 U.S. 20 [a prosecutor cannot elicit broad denials from the defendant on cross-examination in order to “smuggle in” otherwise inadmissible evidence under the guise of impeachment].) And although Sebastian certainly had the right to deny the charges, he did not have a license to commit perjury free from “the risk of confrontation with prior inconsistent utterances.” (Harris v. New York, supra, 401 U.S. at p. 226.)
As Taylor recognized, there is no Fourth Amendment protection against being impeached with statements that directly conflict with the testimony given at trial. We are not dealing here with a defendant who denies possessing drugs and is impeached with his illegal arrest for drug possession on another occasion. We are dealing with a defendant who says markers in his possession on this occasion were for use in his sketchpad and is impeached with his earlier statement he had the markers because he belonged to a tagging crew.
Sebastian fails to recognize “impeachment by otherwise inadmissible evidence is not limited to collateral matters” unrelated to the commission of the crime in question. (United States v. Havens (1980) 446 U.S. 620, 625.) When, as here, the defendant offers exculpatory evidence relating to the charged offense, the prosecution may use his prior tainted statements for purposes of attacking his credibility. (See ibid. [illegally obtained evidence admissible to impeach defendant’s denial of involvement in drug smuggling scheme]; Oregon v. Hass (1975) 420 U.S. 714 [illegally obtained evidence admissible to impeach defendant’s claim he did not know where stolen bicycles were hidden]; Harris v. New York, supra, 401 U.S. at p. 226 [illegally obtained evidence admissible to impeach defendant’s claim he lacked the requisite intent to sell drugs].) The admission of Sebastian’s prior statements for impeachment purposes was not improper.
Nevertheless, as Sebastian points out, it appears the trial court did not rely on Sebastian’s prior statements solely for the purpose of assessing his credibility. In rendering its decision, the court said “taggers always put a moniker with their drawings, and certainly from the statements taken on cross-examination of the minor, he did have a moniker and that moniker was also in the sketchbook.” This indicates the court used Sebastian’s prior statements as substantive evidence of his guilt, in violation of Miranda. (See Miranda, supra, 384 U.S. 436.)
Still, any error was harmless beyond a reasonable doubt. By the time Sebastian took the stand, Officer Perales had already testified that based on his experience, the word Seek in Sebastian’s notebook was his tagging moniker. Thus, in terms of substantive evidence, Sebastian’s testimony to that effect was merely cumulative. It is also significant that in denying Sebastian’s motion to dismiss at the close of the prosecution’s case-in-chief, the trial court was convinced beyond a reasonable doubt of the truth of the charged offense. Since Sebastian’s statements to Perales were not introduced into evidence until after the court made this determination, we can be certain the statements did not play a material role in the court’s final decision. Although the trial court should not have alluded to Sebastian’s statements as substantive evidence, we are convinced Sebastian would not have obtained a more favorable verdict in the absence of this error. It does not justify a reversal of the judgment.
II
Sebastian also challenges the sufficiency of the evidence to support both the trial court’s denial of his motion to dismiss and its ultimate determination he committed the crime of possessing graffiti tools with the intent to commit vandalism or graffiti. He contends there is insufficient evidence he had such intent, but we disagree.
In reviewing the denial of a motion to dismiss in a juvenile proceeding (Welf. & Inst. Code, § 701.1), we apply the same rules and standards applicable in adult cases. (In re Anthony J. (2004) 117 Cal.App.4th 718, 727.) That is, we must limit our review to the evidence that was introduced at the time the motion was made. (Id. at p. 730.) However, “our perspective must favor the judgment. [Citations.] ‘[We] must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court’s findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.] [¶] Before the judgment of the trial court can be set aside for insufficiency of the evidence . . ., it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it. [Citation.]’ [Citations.]” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1372.)
The hypothesis of the prosecution in this case was rather simple. Sebastian was walking around late on a Wednesday night, miles from his home, in possession of implements that could be used for graffiti. Furthermore, the markers and the writing in his sketchbook suggested to an expert witness that Sebastian was part of a tagging crew. In particular, the word “Seek” was written over and over in the sketchbook indicating Sebastian was perfecting his moniker so when doing graffiti he could, in the words of Perales, sketch his moniker “right off . . . the book onto a wall.”
Granted, there was no evidence that Sebastian had ever written graffiti in the past or that any graffiti had been written in the area where Perales stopped him. However, a reasonable inference from the evidence is that Sebastian had the markers and sketchbook for the purpose of drawing graffiti. “Every person who possesses [graffiti tools] with the intent to commit vandalism or graffiti is guilty of a misdemeanor.” (Pen. Code, § 594.2, subd. (a).) The statute does not put any time limit on the intent requirement vis-à-vis the act. In other words, a person who possesses graffiti tools need not have the intent to presently commit graffiti or do to do so within any particular time frame. So long as the elements of possession and intent coexist, the crime is complete.
Sebastian fears enforcement of the statute will lead to the indiscriminate prosecution of juveniles like himself, who just happen to be carrying markers or other things that can be used to write graffiti. However, Sebastian was not some art student who was stopped on his way to the studio with markers in one hand and an easel in the other. And there is nothing in the record nor in the reported decisions indicating the specter of persecuted artists he conjures up is anything other than a phantasm.
Sebastian draws our attention to Cook v. Superior Court (1970) 4 Cal.App.3d 822, but that case is distinguishable. In Cook, the defendants successfully challenged their indictments for possessing burglary tools with the intent to commit burglary. Although they were each found with a small piece of metal, these so-called “shims” could not be used to pick locks without a “follower,” and neither defendant had that crucial instrument in his possession. (Id. at p. 827.) Moreover, there was no admissible evidence indicating the defendants had the intent to commit burglary. (Id. at p. 829.) Here, in contrast, Sebastian had everything he needed—numerous markers and a sketchpad with his much-practiced moniker inside—to commit the act of graffiti. And, Officer Perales’ testimony strongly suggested Sebastian was part of a tagging crew. Although not overwhelming, the evidence at the close of the prosecution’s case-in-chief was sufficient to support the trial court’s decision to deny Sebastian’s motion to dismiss.
When we add in the impeachment testimony introduced during the defense case, the evidence against Sebastian becomes even stronger. Not only did he have the tools necessary to commit graffiti, the prosecution effectively impeached his exculpatory testimony by introducing his prior inconsistent statements to Officer Perales. Considering all the evidence that was adduced at the hearing, there is sufficient evidence to support the trial court’s adjudication.
The judgment is affirmed.
WE CONCUR: O’LEARY, J., ARONSON, J.