Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. BA340029, Michael E. Pastor, Judge
Mark S. Givens, 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, Victoria B. Wilson, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Noah A. Ayala appeals from the judgment following his conviction by jury of felony vandalism (Pen. Code, § 594, subd. (a)). It also found true allegations that he committed the crime for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist the gang (§ 186.22, subd. (b)(1)(A)). Appellant admitted, and the court found true, allegations that he suffered three prior prison term convictions (§ 667.5, subd. (b)), and a prior serious or violent felony strike (§§ 667, subds. (b)- (i), 1170.12, subds. (a)-(d)). The court sentenced him to state prison for nine years, including a six-year upper term for felony vandalism and a three-year gang enhancement. Appellant argues that there is no sufficient evidence that the vandalism caused at least $400 of damage, and that the court committed prejudicial evidentiary and instructional errors. We affirm.
All statutory references are to the Penal Code.
BACKGROUND
Metro 13 and Southside Montebello are rival gangs that claim distinct territories in Montebello. Metro 13's primary activities include narcotic sales, vandalism, assaults, grand theft, and carrying concealed weapons. Appellant, his codefendant, Nelson Pojoy, and Alejandro Perez are members of Metro 13. Appellant, Perez, and Pojoy use the monikers Buzzard, L Gee, and Listo, respectively. Appellant has several Metro 13 tattoos, including his moniker, on his fingers, eyebrow, forehead and torso. Pojoy and Perez also have Metro 13 tattoos.
Pojoy was named as appellant's codefendant in the information but he was not tried with him.
On April 22, 2008, at about 8:20 p.m., Montebello Police Department Officer Andy Vuncanon drove a marked police car past the apartment complex at 1405 South Greenwood Avenue in Montebello. The complex is one block from Metro 13's territory and within a half block of Southside Montebello's territory. Vuncanon pulled over when he saw appellant facing a wall of the complex. From a distance of about 15 feet, Vuncanon watched appellant spray "L A M E T R" on the wall, in six-foot high black letters. Vuncanon asked what he was doing. Appellant turned, saw Vuncanon, and said, "Oh, shit."
Appellant dropped the spray can and ran past Vuncanon. Vuncanon called for other officers and walked south on Greenwood. Within seconds, he noticed two more suspects near another wall of the complex, running to join appellant. They were later identified as Pojoy and Perez. Appellant, Pojoy and Perez ran up some stairs leading to another segment of Greenwood Avenue. A few seconds later, appellant and Pojoy ran back in Vuncanon's direction. Montebello Police Officers Omar Rodriguez and Enrique pursued the suspects from another direction. The officers arrested appellant and Pojoy immediately. They arrested Perez later that night.
The 1405 South Greenwood apartment complex had graffiti associated with the Metro 13 gang on two walls in the area from which Pojoy and Perez had run, near the complex parking entrance. The two walls were about 30 feet from the wall where appellant had sprayed graffiti. The graffiti on one wall near the parking entrance read: METRO X3, ES, METRO TRECE, LISTO, BUZZ, and L GEE. Because Pojoy's gang moniker, Listo, was written before the other monikers, the gang expert opined that Pojoy had painted that graffiti. The graffiti on the other wall, apparently written by Perez, read: M13, LS, MR XIII, L GEE, LISTO and BUZZ. A group of monikers like those on the two walls is called a "roll call." A roll call typically reflects who was at the location when it was tagged. Buzz is a variation of appellant's moniker, Buzzard. The gang expert opined that the gang sprayed graffiti on the complex walls to challenge other gangs and convey that the gang is active and intends to take over additional territory.
Neither appellant nor Perez nor Pojoy lived in the complex at 1405 South Greenwood Avenue in 2008. Appellant had lived there about 10 years earlier.
Denise Ross, the resident property manager at 1405 South Greenwood Avenue, found graffiti on three of the complex walls in the morning on April 23, 2008. Ross reported it to her supervisor, Jewel Anderson, of Alpha Property Management. Anderson hired 21st Century Maintenance to repair the damage.
On April 23, 2008, Joel Santos, principal of 21st Century Maintenance, and "another guy" went to 1405 South Greenwood to remove the graffiti from its vandalized walls. Because the walls have an uneven surface, with "stucco like popcorn," Santos had to "power wash" them to remove the graffiti. He then applied primer, and painted the walls at least once. The bill for the removal work was $550.82. Santos charged three hours at "$45 an hour... plus labor, plus materials." While testifying, Santos could not recall the cost of certain materials, but he described the cost of other materials which add up to approximately $189. Alpha Property Management paid 21st Century Maintenance $550.82 for removing graffiti from, and repainting, the vandalized walls at 14500 South Greenwood.
DISCUSSION
Sufficiency of the Evidence
Appellant challenges the sufficiency of the evidence to support the felony vandalism conviction because there is not evidence that the amount of damage was $400 or more. 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 damage is $400 or more. (§ 594, subd. (b)(1).)
Anderson paid 21st Century Management $550.82 to remove the graffiti from and repaint the vandalized walls at 14500 South Greenwood. Appellant and his accomplices vandalized those walls. Santos, the principal of 21st Century, testified that he and "another guy" went to 14500 South Greenwood to repair the walls. Santos explained that he charged for three hours at "$45 an hour... plus labor, plus materials." The reasonable inference from Santos' testimony is that he charged $45 an hour for his own time, plus the labor of "another guy" who apparently helped him, plus the cost of materials. Santos could not recall the cost of certain items (rags, masking tape, a five-gallon bucket, a stucco paint roller cover, and a dust mask) but he did recall the cost of other items that collectively total approximately $188 or $189.
By combining $188 or $189 with $135 (three hours at $45), appellant argues that the evidence only shows that the damage from the vandalism was $323 to $324. He also challenges including cost of reusable materials in the amount of damages. Further, he argues that the $550.82 statement for repairing the damage provided 21st Century with "an additional $227 in profit on top of the actual cost of the repairs." His arguments are not persuasive.
Substantial evidence establishes that the vandalism of appellant and his accomplices caused at least $400 of damage. Appellant recognizes that three hours for Santos' time and $188 of costs for materials total at least $323. Felony vandalism involves damages of at least $400, which is $77 more than $323. A reasonable juror could infer that in addition to the $323 of items that Santos described in his testimony, his $550.82 bill included at least $77 to cover wages for the "other guy" who accompanied Santos to the complex, as well as the collective costs of the masking tape, five-gallon bucket, stucco paint roller cover, and the dust mask. There is sufficient evidence to support appellant's felony vandalism conviction.
Mistrial Motion
Appellant argues that the trial court abused its discretion by denying his motion for a mistrial based upon Officer Rodriguez's reference during his testimony to appellant's numerous prior arrests. He asserts that the error denied him a fair trial and due process of law because the improper evidence was of such character that its effect could not be removed by the trial court's admonitions. He relies on People v. Allen (1978) 77 Cal.App.3d 924, 934-935, where the court concluded that a witness's unexpected statement that defendant "'... was on parole and... could[] n[o]t stand another beef'" was improper and incurable by admonition. In this case, Rodriguez divulged the improper evidence during the following portion of his direct examination:
"Q [A]re you familiar with [appellant]?
"A Yes, sir.
"Q And how do you know him?
"A Numerous contacts.
"Q How many times have you spoken with him?
"A 30, 40 times.
"Q Do you have an opinion as to whether or not he is a gang member, Metro 13 gang member?
"A Yes.
"Q What is that opinion?
"A He has been arrested numerous times where he has been documented as a Metro 13 Gang Member."
The court sustained counsel's immediate objection to Rodriguez' last response, above, and granted the motion to strike it. It also admonished the jury to disregard the response. The court denied appellant's request at sidebar for a mistrial. It then informed the jury, again, that the answer was stricken and instructed it to disregard it. At the close of trial, it instructed the jury that if the court "ordered testimony stricken from the record, [it] must disregard it and must not consider that testimony for any purpose." (CALCRIM No. 222.)
A trial court must grant a motion for mistrial when a party's chances of receiving a fair trial have been irreparably damaged. (People v. Avila (2006) 38 Cal.4th 491, 573.) The trial court possesses broad discretion, however, in ruling upon a motion for mistrial. (Ibid.) "'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.]" (Ibid.) Although most motions for mistrial involve prosecutorial or juror misconduct, a witness's volunteered statement may also provide the basis for a finding of prejudice. (People v. Wharton (1991) 53 Cal.3d 522, 565-566 [no incurable prejudice where witness "blurted out" that defendant "'got the word out'" that witness was a "'snitch'"].) It is "only in the exceptional case" however, that the trial court's admonition will not cure the effect of improper prejudicial evidence. (People v. Allen, supra, 77 Cal.App.3d 924, 935.)
In arguing that the reference to his numerous arrests was incurably prejudicial, appellant relies on People v. Allen, supra, 77 Cal.App.3d 924, and other inapposite cases. The admission of improper evidence in People v. Allen was prejudicial for two reasons--it was a very close case in which the defendant's credibility was critical; and the court committed another error by excluding evidence relevant to the credibility of the prosecution's primary witness. (Id. at p. 935.) This case does not involve another error and it is not close. Vuncanon observed appellant spray the graffiti on the victim's property.
The trial court did not abuse its discretion and did not deny appellant a fair trial by denying his mistrial motion. Rodriguez also had testified about his consensual, cooperative contacts with gang members, when "[t]hey are not in trouble." Thus, no reasonable juror would infer that Rodriguez had arrested appellant on each of their 30 or 40 contacts. Further, Rodriguez's reference to appellant's numerous arrests was brief and did not necessarily imply that appellant had been convicted of any crime. (People v. Bolden (2002) 29 Cal.4th 515, 554-555 [where police officer volunteered that he located defendant through a parole office, no error in denying mistrial where reference was brief and no reasonable juror would infer that defendant had served a prior prison term]; People v. Valdez (2004) 32 Cal.4th 73, 124-125 [where witness volunteered that defendant had been at Chino prison, no error in denying mistrial because reference was isolated and prejudice curable by instruction].) To the extent that Rodriguez's reference to appellant's numerous arrests connected him to the Metro 13 gang, it was merely cumulative of other evidence. For example, appellant and his accomplices bore Metro 13 tattoos, and appellant ran from the crime scene with two other Metro 13 members, who had painted their gang monikers, and appellant's, with variations of the gang's name and symbols, on walls at the crime scene. Moreover, the court immediately sustained the objection to the improper evidence, ordered it stricken, and repeatedly instructed the jury to disregard it. In this case, the jury's brief exposure to improper evidence was curable by the court's admonition and instructions.
Jury Instructions
Appellant contends that the court erred prejudicially by failing to properly instruct the jury on how to measure the amount of damage appellant caused by his vandalism. He claims that the term "amount of damage" in the court's instructions is ambiguous and that the court's instructions did not provide the jurors with sufficient "guidance on how they were to calculate" the amount of damage. We disagree.
Appellant did not request that the trial court instruct the jury on the term "amount of damage" or object to the vandalism instructions given by the court below. A trial court has no sua sponte duty to define words in common usage, absent a request. (People v. Adams (2009) 170 Cal.App.4th 893, 900.) In the context of a vandalism case, the term "amount of damage" is not a technical term; persons of common intelligence know what "amount of damage" means. (See People v. Dimitrov (1995) 33 Cal.App.4th 18, 25 [the term "bomb" needs no definition].)
In arguing that the instructions were inadequate, appellant relies on inapplicable cases. For example, People v. Farrell (2002) 28 Cal.4th 381, 389, 391 discusses the meaning of value in theft cases. He also cites People v. Yanez (1995) 38 Cal.App.4th 1622, 1626, a receiving stolen property case in which a stolen vehicle was damaged. The court considered how to calculate restitution for damaged but reparable property for purposes of section 1203.04, subdivision (d). (People v. Yanez, supra, at p. 1626.)
Here, the court instructed the jury regarding the elements of vandalism. (See CALCRIM 2900.) It also gave the following instruction regarding the amount of damage: "If you find the defendant guilty of vandalism..., then you must decide whether the People have proved the allegation that the amount of damage caused by the vandalism in... was $400 or more, within the meaning of Penal Code section 594[,] [subdivision] (b)(1)." (See CALCRIM 2901.) It further instructed the jury that before it decided whether the damage was $400 or more, it "first must be convinced beyond a reasonable doubt that the defendant is responsible for the alleged vandalism of the 3 walls at the Greenwood Gardens Apartments as a direct perpetrator and/or as an aider and abettor based upon previous Instructions [concerning aiding and abetting]." (Ibid.) It also instructed the jury that it could aggregate the amounts of damage caused by appellant and the other perpetrators if it found that they aided and abetted each other. A trial court cannot be expected to improve or revise standard instructions absent a request. (People v. Kelly (1992) 1 Cal.4th 495, 535.) Appellant cannot claim error here for the failure of the trial court to define a term in common usage absent an objection to the instruction or a request for a clarifying instruction. (Id. at pp. 535-536.)
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.