Opinion
D069612
01-18-2017
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW RONALD BOSELLY, Defendant and Appellant.
Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Christine Friedman, Andrew Mestman and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF35317) APPEAL from a judgment of the Superior Court of Imperial County, William D. Lehman, Judge. Affirmed. Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Christine Friedman, Andrew Mestman and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Matthew Ronald Boselly of vandalism (Pen. Code, § 594, subd. (a)) and found the amount of damages caused by the vandalism was $400 or more (§ 594, subd. (b)(1)). The jury also found true a special allegation Boselly suffered a prior conviction of a serious or violent felony (§§ 667, subd. (d), 1170.12, subd. (b)). The court sentenced Boselly to the upper term of three years, which was doubled to six years for a strike prior.
Further statutory references are to the Penal Code unless otherwise indicated.
On appeal, Boselly contends (1) there was insufficient evidence to convict him for felony vandalism because there was lack of proof the damages caused by the vandalism exceeded $400, and (2) the court erred in failing to instruct the jury with a definition of "amount of damage" as used in section 594, subdivision (b)(1). We disagree with these contentions and affirm the judgment.
BACKGROUND
On the morning of August 24, 2015, an employee of the Salton City Community Services District (District) arrived at the Salton City Park and noticed a trashcan knocked over near the restrooms, trash on the ground, and the water fountain drain broken off. The water filter was off the wall, the power cord was not in place, and the fountain had a dent. Previously, the water fountain was in good operating condition with the plumbing and filter attached.
The employee reviewed security camera footage of the area from the evening of Sunday, August 23, 2015. The security videos showed Boselly at the park and leaving the park on his bicycle. When Boselly returned, he came around behind the men's restroom, leaned his bicycle against a fence post, and walked toward the pool. He turned and kicked the trash can. He then walked to the water fountain, forcefully pulled the power cord out of the outlet, grabbed the water fountain and slammed it to the ground. Thereafter, Boselly picked up the water fountain and set it upright.
The employee was familiar with Boselly, having seen him around town on an almost daily basis for about a year and a half to two years.
Security videos from different camera angles were shown to the jury.
Another District employee reported he had found a cell phone on a picnic table the night before and believed it belonged to Boselly. The employee put it in the lost-and-found area in the park office. The attendant, who normally would see Boselly, planned to give Boselly the phone back. The phone was returned to Boselly at a local restaurant where a deputy sheriff detained and questioned him about the water fountain.
Boselly told the deputy sheriff he had been looking for his phone. When asked what happened to the water fountain, Boselly admitted throwing the water fountain to the ground saying he thought the phone could be behind the fountain.
The drain pipe for the water fountain was broken off. The supply line was twisted, but was still attached. The compressor was not cooling the water. A District employee attempted to fix the water fountain to function properly, but he was not able to reattach the drain to the drain hole. It kept leaking and was an electrical hazard because the water could leak onto the compressor.
The District ordered a new water fountain because the old fountain could not be repaired to operate safely. They purchased the new water fountain from an online auction service for $649.08. The District employee spent time attempting to repair the old water fountain and then installing the new water fountain, which could have been time spent doing other things for the District. He was paid by the District on an hourly basis no matter what he was doing.
Boselly's mother paid approximately $900 to the District for the cost of the new water fountain, the shipping cost, and the labor cost for installation. She understood employees for the District installed the fountain and said she thought it was "double-dipping" to pay for their labor. Boselly's mother stated the water fountain, which was an exhibit at trial, appeared to be 30 years old.
Boselly represented himself at trial. He testified he believed the video evidence was manipulated and he did not maliciously damage the water fountain.
DISCUSSION
"Section 594 provides in pertinent part that '[e]very person who maliciously commits any of the following acts with respect to any real or personal property not his or her own ... is guilty of vandalism: [¶] (1) Defaces with graffiti or other inscribed material. [¶] (2) Damages. [¶] (3) Destroys.' " (People v. Carrasco (2012) 209 Cal.App.4th 715, 719 (Carrasco).) The statute differentiates the punishment for vandalism based on whether "the amount of defacement, damage, or destruction is [$400] or more." (§ 594, subds. (b)(1) & (2).)
Boselly contends there was insufficient evidence to convict him of felony vandalism because the "amount of damage" should have been defined as the fair market value of the water fountain as opposed to the cost of replacement or repair. Boselly further contends the court should have instructed the jury the definition of "amount of damage" is fair market value, similar to theft cases. (See CALCRIM No. 1801.) We do not agree.
"We review de novo questions of statutory construction. [Citation.] In doing so, ' "our fundamental task is 'to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.' ... We begin by examining the statutory language because it generally is the most reliable indicator of legislative intent. We give the language its usual and ordinary meaning, and '[i]f there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.' ... Ultimately we choose the construction that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute.' " (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232-1233.)
The theft statute, section 484, subdivision (a), states "the reasonable and fair market value" is the test for "determining the value of the property obtained." In contrast, section 594 does not expressly define "amount of damages" for vandalism. However, a usual and ordinary construction is to use the cost of replacement or repair as a measure of damage. The case of In re Arthur V. (2008) 166 Cal.App.4th 61, 65, involved $150 worth of damage to a car windshield and destruction of a phone which "cost $350." Similarly, in Carrasco, supra, 209 Cal.App.4th at page 718, the damage caused by vandalism involved the cost to repair broken car windows and a broken house window. These damage amounts do not consider the fair market value of the items in the condition they were at the time of the vandalism, but rather the cost to repair or replace the items. This is consistent with restitution statutes which allow courts to award restitution to victims of vandalism for the " 'replacement cost of like property, or the actual cost of repairing the property when repair is possible.' " (People v. Stanley (2012) 54 Cal.4th 734, 737.)
In this case, the prosecution presented evidence the cost of replacing the water fountain was over $600, without consideration of labor. There was also evidence Boselly's mother paid the District about $900 in restitution for the cost of replacing the water fountain, including shipping and labor. Both of these amounts exceeded $400 and, therefore, substantial evidence supported the jury's finding of felony vandalism. (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)
The court properly instructed the jury with CALCRIM No. 2901, which tracks the statutory language. (People v. Smithey (1999) 20 Cal.4th 936, 980-981 [" ' "[T]he language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification" ' "].) The jury was instructed on the substantive elements of the crime of vandalism with CALCRIM No. 2900. It was also instructed with CALCRIM No. 2901 to make a finding of whether or not the amount of damage resulting from the vandalism was $400 or more. "Instructing the jury in this manner has been approved by the Judicial Council of California." (Carrasco, supra, 209 Cal.App.4th at p. 723.) Based upon an ordinary understanding of damage, the jury found the amount of damage exceeded $400. We conclude there was no instructional error.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: BENKE, J. IRION, J.