Opinion
A100446.
7-10-2003
In re SHAWN G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. SHAWN G., Defendant and Appellant.
Shawn G. appeals from a disposition entered after the juvenile court found true allegations that he had committed vandalism (Pen. Code, § 594, subd. (b)(2)), and disturbing the peace ( § 415). He challenges the vandalism finding contending (1) the offense was improperly elevated to a felony pursuant to a street gang allegation, and (2) the finding was not supported by substantial evidence. We reject these arguments and affirm the disposition.
All further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant attended Vintage High School in American Canyon. He commonly associated with a group of students who identify with the color red. The color red has been adopted by the Norteno street gang.
Jose F., who went by the name "Ricky", attended an after-school program at Vintage High School. Ricky and appellant did not get along. Ricky had "pushed" appellant "around" in the past. Appellant frequently called Ricky "scrap"; a derogatory term for a member of the rival Sureno street gang.
On February 14, 2002, Daniel L. challenged Ricky to fight. He suggested that they meet at the community center after school. Some time later that day, Ricky told appellant he also should go to the community center because Ricky wanted to fight him too.
After school, Ricky rode on a school bus to the community center. When the bus arrived, a large group of people came from behind the center and approached it. Appellant and Daniel L. were among those who were "leading the charge." Ricky started arguing with appellant through an open window. Some persons in appellants group called Ricky "scrap" and challenged him to get off the bus because they wanted to "beat [his] ass."
Ricky closed the window of the bus. At that point, appellant came up to the window and "punched it hard." It broke, showering glass into Rickys eye and causing multiple lacerations on his face and arms.
The window shattering caused a "frenzy" on the bus. People started pleading with the driver to leave because they were afraid the crowd outside might "attack" and "destroy the bus." The bus driver was able to start the bus and leave without further incident.
Based on these facts, a petition was filed alleging appellant came within the jurisdiction of the juvenile court because he had committed three offenses: battery on a transit passenger (§ 243.3), vandalism under $ 400 ( § 594, subd. (b)(2)), and disturbing the peace ( § 415). The petition further alleged that the first count was committed for the benefit of a street gang within the meaning of section 186.22, subdivision (b)(1) and that the second and third counts were felonies because they were committed for the benefit of a street gang within the meaning of section 186.22, subdivision (d).
In fact, the petition charged appellant with violating "section 594(a)(4)." There is no such subdivision. The crime described: vandalism causing damage of less than $ 400; is set forth in section 594, subdivision (b)(2). We assume the petition contains a typographical error and that latter section number is correct.
A contested jurisdictional hearing was held. Ricky testified and he recanted his earlier statement that appellant had broken the bus window. Instead, Ricky said he did not know who broke it. Another passenger on the bus, Eric M., had a similar change of memory. While shortly after the incident Eric had told the authorities that appellant was responsible, at the jurisdictional hearing, Eric said he did not know who had done it. But Eric did admit that he had been scared to testify because "they might do something to me or something."
The prosecution also presented evidence from an expert in gangs who testified that appellant was an "active associate" of the Norteno street gang. According to the expert, appellant furthered the gangs activities by "challenging" Ricky and using derogatory terms toward him. In addition, by breaking the window, appellant further escalated the rivalry between the Nortenos and the Surenos.
The juvenile court hearing this evidence sustained the second and third counts and found the associated enhancements under section 186.22, subdivision (d) to be true. The count found the allegation in the first count to be not true.
At disposition, the court declared appellant to be a ward of the court and placed him on probation. This appeal followed.
II. DISCUSSION
A. Whether the Vandalism Count was Properly Elevated to a Felony
The petition alleged appellant had committed vandalism causing damage of less than $ 400; an offense that is normally a misdemeanor. (& sect; 594, subd. (b)(2)(A).) However, the petition alleged the offense was elevated to a felony because appellant had committed the crime for the benefit of a street gang within the meaning of section 186.22, subdivision (d). That section states, in part: "Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of
. . . any criminal street gang . . . shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years . . . ."
Appellant now contends his vandalism offense could not validly be elevated to a felony under section 186.22, subdivision (d), because the statutory language makes clear that the subdivision applies only to offenses that are punishable "as a felony or a misdemeanor" i.e., wobblers. Since the offense appellant committed, vandalism causing damage under $ 400, is a misdemeanor not a wobbler, he contends the enhancement could not be validly applied to him.
Our Supreme Court recently rejected this precise argument in Robert L. v. Superior Court (2003) 30 Cal.4th 894. The court there framed the issue ". . . whether section 186.22(d) applies to all misdemeanors and all felonies or only to wobblers . . . ." (Id. at p. 897.) After analyzing the language of the statute, related statutory language, and the intent of the voters who adopted the section, the court ruled the statute applied to all misdemeanors and felonies. (Id. at pp. 900-909.)
The ruling in Robert L. is unequivocal and it is binding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.) We conclude appellants vandalism offense could validly be elevated to a felony pursuant to section 186.22, subdivision (d).
II. Sufficiency of the Evidence
Appellant contends the vandalism finding must be reversed because it is not supported by substantial evidence.
The standard of review we use to evaluate this argument is familiar. We must view the record in the light most favorable to the ruling being challenged to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the allegation of the petition true beyond a reasonable doubt. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) When making that determination, we must presume in support of the judgment the existence of every fact the juvenile court could reasonably have deduced from the evidence, defer to its evaluation of the credibility of the witnesses, and resolve any conflicts in support of its decision. (Id. at p. 1373.)
Here, appellant was charged with vandalism under section 594 which makes it a crime to "maliciously" deface, damage, or destroy the property of another. The term "maliciously" is defined to mean "a wish to vex, annoy or injure another person, or an intent to do a wrongful act . . . ." ( § 7, see also People v. Campbell (1994) 23 Cal.App.4th 1488, 1493, & CALJIC Nos. 1.22, 16.320.)
Appellant contends the evidence in this case was insufficient to support the malice element because there was no indication that he or anyone else hit the bus window with anything other than their bare hands; bus windows must meet safety standards that make them difficult to break; the bus window was elevated and thus would have been difficult to strike squarely; and although there was evidence that more than one window was struck, only one broke. According to appellant, these facts proved that the actual breaking of the window was an accident.
The factors appellant cites might have supported a decision to reject the vandalism allegation. However, other factors support the courts decision. Specifically, the evidence suggested that Ricky and appellant were associated with rival street gangs, that Ricky challenged appellant to fight, and that when Ricky arrived at the community center on the school bus, appellant led a group who intended to confront him. Appellant and Ricky then argued through the open bus window while members of appellants group challenged Ricky to get off the bus and fight. Ricky refused and shut the window. At that point, appellant punched the window hard. The trial court considering this evidence could reasonably conclude that appellant, enraged by Rickys refusal to fight, struck the window intentionally, hoping it would break and thus either injure Ricky (as occurred), or allow appellant access to Ricky so he continue the fight.
We conclude there was ample evidence to support the conclusion that appellant broke the window maliciously.
III. DISPOSITION
The disposition is affirmed.
We concur: Stevens, J., and Simons, J.