Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura, Manuel J. Covarrubias, Judge, Ct. No. 2007013899
Mark Brown, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
S.P. appeals a juvenile court judgment sustaining a Welfare and Institutions Code section 602 petition with findings that he committed two counts of felony vandalism (Pen. Code, § 594, subds. (a)(1) & (b)(1)), resisted arrest (§ 148, subd. (a)(1)) and committed battery (§ 242). The court ordered S.P. to pay $906.39 in restitution to the Chaparral Middle School and $1,167 in restitution to the City of Moorpark for damage he committed at Poindexter Park. We conclude that substantial evidence supports the finding that S.P. committed two acts of felony vandalism and the court did not abuse its discretion by declining to reduce one of those from a felony to a misdemeanor. We affirm.
All statutory references are to the Penal Code.
FACTS
Deputy Sheriff Amy Ward was on "foot patrol" at the city of Moorpark's Poindexter Park. She noticed that someone had painted MPLS gang graffiti on four walls of a bathroom in the park using black paint. The paint was wet and "sticky to the touch." She determined that it was "fresh graffiti." She smelled the odor of spray paint.
Ward walked 500 yards to the Chaparral Middle School and she noticed that it had also been vandalized with the same type of MPLS black graffiti. She said, "The whole area smelled like fresh spray paint." When Ward approached the school, several people who were hiding in the nearby bushes fled. In searching that area, she found a spray can of black paint. Sheriff's deputies pursued the fleeing suspects. S.P. was one of them. When he was apprehended, he had "dark or black-colored paint" on one of his hands.
At the May 7, 2007 hearing, Ward identified photographs which were taken of the vandalism to the school and the bathroom in the park. She said that the damage to each structure was at least $400.
Deputy Sheriff Keith Mineau testified that all the walls in the bathroom in the park had been vandalized. One wall was 20 to 25 feet wide. The graffiti spanned five and a half to six feet in height. He testified that the graffiti at the Chaparral school was "between ten and 15 feet in width, about six or seven feet in [height.]" Mineau had experience in investigating vandalism. It is his responsibility to recommend whether to charge the offenses as a felony or misdemeanor. The "determining factor" is "what it would cost someone to clean up or to repair the damage." He said the damage to the Chaparral school was "in excess of $400," and the damage to the bathroom in the park was "in excess of $400."
DISCUSSION
I. Felony Vandalism
S.P. contends there is no substantial evidence to support the finding that he committed felony vandalism. He claims the court erred by allowing the law enforcement officers to render opinions that the damage for each act of vandalism exceeded $400. We disagree.
In reviewing the sufficiency of the evidence, we draw all reasonable inferences in support of the judgment. We do not weigh the evidence or decide the credibility of witnesses. (People v. Rodriguez (1999) 20 Cal.4th 1, 10-12.) Vandalism is a felony if "the amount of defacement, damage, or destruction is four hundred dollars ($400) or more . . . ." (§ 594, subd. (b)(1).) "The determination of an expert's qualification is primarily the function of the trial court, and its ruling will not be disturbed in the absence of an abuse of discretion." (People v. Cruz (1968) 260 Cal.App.2d 55, 59.) Police officers may render expert opinions in areas where they have the requisite knowledge, experience or training. (Ibid.; People v. Carter (1997) 55 Cal.App.4th 1376, 1378.) Their experience may give them specialized knowledge to render opinions on issues directly related to their criminal investigations. (People v. Prince (2007) 40 Cal.4th 1179, 1225; State v. Brooks (Tenn.Crim.App. 1995) 909 S.W.2d 854, 858-859 [conviction for vandalism exceeding $1,000 upheld based on photographs and police officers' testimony about amount of damage].)
Mineau said that he had experience in investigating vandalism and his job requires him to recommend whether the offense should be charged as a misdemeanor or a felony. That involves determining the amount of money it would cost to "clean up or . . . repair the damage." He had conferred with cleanup personnel about the time it takes to remove the graffiti and the chemicals they use to restore the building to its original color.
Ward had extensive experience in this area. She testified that she had investigated over 100 vandalism cases in 11 years. She is required to calculate the amount of damage to categorize the degree of crime, which means that part of her job is to determine whether "the damage is less than or greater than [$]400." She had substantial experience in investigating gang graffiti. She said she "commonly" had "assignments to investigate vandalism committed by MPLS." The trial court could reasonably infer that Mineau's and Ward's experience in determining the cost of vandalism as part of their jobs qualified them to testify about the amount of damage in this case.
In addition, the photos and the graffiti support the trial court's findings. (People v. Pshemensky (1966) 244 Cal.App.2d 154, 157; see also Nixon v. State (Tex.Ct.App. 1996) 937 S.W.2d 610, 612-613; State v. Brooks, supra, 909 S.W.2d at pp. 858-859.) Here the court viewed the photographs of the damage. It found that S.P. had placed "large graffiti" on these structures. S.P. has not shown that the damage he did fell within the category of being minor, or that the court's findings on the size of the graffiti were inaccurate. The court said that "even just plain size and common sense would indicate that the amount of damage, to have all that removed, would certainly be in excess of $400." S.P. has not shown an abuse of discretion. All the bathroom walls were vandalized and one of those walls was at least 20 feet wide. The height and width of the graffiti at both sites covered a substantial area. The evidence is sufficient.
II. Declining to Reduce a Felony to a Misdemeanor
S.P. contends the court erred by not reducing one of the felonies to a misdemeanor. He claims "the prosecutor presented evidence to the court that the actual cost for cleaning up the graffiti at the park was less than $400." We disagree. Section 594, subdivision (b)(2)(A) states that "[i]f the amount of defacement, damage, or destruction is less than four hundred dollars ($400), vandalism is punishable" as a misdemeanor.
But here there was no evidence that the damage from either incident was less than $400. Mineau and Ward testified that it was at least $400.
S.P. is apparently referring to the prosecutor's conflicting remarks about the damage to the city's park at the subsequent May 21, 2007 disposition hearing. There she said, "Your Honor, I was wanting to check and see the amount of damage. I know for the City of Moorpark it did not exceed $400. . . . [T]here was an agreement between counsel that if . . . it was less than $400 there would be a 17(b) motion." But later she said, "Or perhaps we could keep that 17(b) motion in abeyance . . . until . . . we can get restitution determined . . . ." The court ruled, "We'll reserve at this point the request of the minor to have the offense reduced to a misdemeanor under 17(b) pending any further information concerning the damage . . . ."
At a restitution hearing on July 30th, the prosecutor said the damage to the City of Moorpark was $1,167. S.P.'s trial counsel said, "I do have the paperwork from Poindexter Park indicating it did come out to $1,167. I did discuss the matter with [S.P.'s] mother, and I am submitting on that issue." The court found the amount of restitution for damage at Poindexter Park was $1,167.
Trial courts have broad discretion in deciding whether to reduce a felony to a misdemeanor. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1457.) S.P. has not shown an abuse of discretion.
The judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.