Opinion
F061960 Super. Ct. No. 10CEJ600348-4
02-16-2012
In re PATRICK P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. PATRICK P., Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Dawson, Acting P.J., Kane, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Fresno County. Alvin Harrell, III, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Patrick P. went on a "tagging" spree and was charged with 44 counts of misdemeanor vandalism. (Pen. Code, § 594, subd. (b)(2)(A).) Pursuant to a plea agreement, he admitted 14 of the counts and the People dismissed the others. The juvenile court declared Patrick a ward of the court pursuant to Welfare and Institutions Code section 602, placed him under the supervision of the probation department subject to specific terms and conditions, including a 60-day commitment to the Juvenile Justice Center, and ordered him to pay $4,400 in victim restitution to the City of Fresno. The court set his maximum period of confinement at five years four months, less 45 days of custody credit. On appeal, Patrick contends the court violated section 654 by calculating a maximum term of confinement based on 14 consecutive sentences. We will affirm.
All further statutory references are to the Penal Code unless noted otherwise.
FACTS
The probation report indicated that on February 18, 2010, at 12:55 a.m., a police officer detained Patrick and another youth for being out after curfew. Patrick admitted he had spray paint in his backpack and had been "tagging." He also said he had just smoked marijuana, was "high" and could not stay awake. The other youth led the officer to numerous locations to identify the tagging. Patrick "chimed in every once in a while" and reported he tagged, "OBAMA" because of his mixed race.
As pertinent to the counts admitted, the tagging included:
Count (1) 3674 E. Santa Ana, a brick fence: "DEEBR" and "OBAMA"
Count (9) 3639 E. Dakota, IPOD storage container
Count (10) sidewalk on Millbrook/Fedora: "OBAMA"
Count (13) 3393 N. Millbrook, Fresno Bee newspaper dispenser: "OBAMA"
Count (18) Cedar and Kenmore, sidewalk: "OBAMA"
Count (19) 1476 N. Cedar, tan dumpster: "OBAMA"
Count (23) 1310 N. Cedar, car wash: "DEEBR," circle M, "OBAMA"
Count (25) Southeast corner sidewalk at Cedar and Hedges: "OBAMA"
Count (27) Northwest corner of Olive and Cedar, (closed) Walgreens sign: "OBAMA"
Count (28) Southbound Cedar and 180 freeway overpass: "DEEBR" and
"OBAMA"
Count (29) Northwest corner of Cedar parking lot, parking concrete block: "OBAMA"
Count (34) Southwest corner of Cedar and Washington sidewalk ramp: "OBAMA"
Count (35) Southwest corner of Cedar and Nevada parking lot, parking concrete block: "OBAMA"
Count (38) Southwest corner of Cedar and Illinois sidewall entry: "OBAMA"
The City of Fresno was listed as the victim for counts 10, 18, 19, 23, 25, 28, 29, 34 and 38. The City reported a cost of $100 to clean each area tagged and a total of $4,400 to clean the 44 areas. The store owners and residents whose property was vandalized did not wish to pursue restitution.
Nothing in the record expressly indicated Patrick's objectives while he committed the offenses. The juvenile court found the offenses were committed at different times and different places and their objectives were predominately independent of each other. It imposed a maximum term of confinement of five years four months (a one-year principal term and 13, four-month subordinate terms).
DISCUSSION
Section 654Patrick contends Penal Code section 654 and Welfare and Institutions Code section 726 prohibited the court from computing his maximum term of confinement based on 14 consecutive sentences. He views his offenses as a sequence of "tags" that primarily defaced City property. "Essentially, this is the same offense repeated again and again in rapid sequence against the same victim." And, he had a single objective "to disseminate his identifying mark as widely as possible." The People respond that the court properly imposed separate punishment for each count because Patrick harbored a separate criminal objective each time he defaced a different piece of property.
Section 654 provides that an act that is punishable in different ways by different provisions of law must be punished under the provision that provides for the longest potential term of imprisonment, and may not be punished under more than one provision. The Supreme Court has extended the protections of section 654 to cases in which several offenses are committed during a course of conduct deemed to be indivisible in time. (People v. Harrison (1989) 48 Cal.3d 321, 335.) The purpose of section 654 is to insure that the defendant's punishment is commensurate with his culpability. (People v. Perez (1979) 23 Cal.3d 545, 552.)
Whether section 654 applies is a question of fact for the trial court that will not be reversed on appeal if there is any substantial evidence to support it. (People v. Vang (2010) 184 Cal.App.4th 912, 915-916.)
Whether a course of conduct is indivisible depends on the intent and objective of the actor. (People v. Harrison, supra, 48 Cal.3d at p. 335.) If all of the offenses were the means of accomplishing one objective, the defendant may be found to have harbored a single intent and may be punished only once. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Alternatively, if the defendant harbored multiple criminal objectives, which were independent of each other, he may be punished for each statutory violation, even though the violations were parts of an indivisible course of conduct. (People v. Harrison, supra, 48 Cal.3d at p. 335.)
Patrick argues his multiple vandalism offenses are analogous to multiple thefts pursuant to a single objective. He submits the Bailey rule applies in his case. In People v. Bailey (1961) 55 Cal.2d 514, the defendant committed welfare fraud and received a number of payments, none of which alone sufficed to constitute grand theft, but collectively they did. The court considered whether the defendant was properly convicted of grand theft rather than a series of petty thefts and affirmed her conviction of felony grand theft. The court held that where as part of a single plan of theft by false pretenses a defendant unlawfully receives various sums from the victim, the offenses may be cumulated to constitute one offense of grand theft. (Id. at p. 518.)
The court in In re Arthur V. (2008) 166 Cal.App.4th 61 (Arthur V.)considered whether the Bailey rule could apply to aggregate two misdemeanor acts of vandalism to a single felony offense. Arthur was found to have committed felony vandalism resulting from two acts: he broke the victim's car windshield and kicked the escaping victim causing him to drop his cell phone, which broke on impact. Arthur contended the evidence supported two counts of misdemeanor vandalism, rather than one count of felony vandalism. (Arthur V., supra, at pp. 64-65.) The court noted that case law had limited the Bailey rule to theft offenses. (People v. Neder (1971) 16 Cal.App.3d 846, 852 [doctrine not extended to forgery]; People v. Drake (1996) 42 Cal.App.4th 592, 597 [doctrine not applied to Medi-Cal fraud based on five acts of false billing]; People v. Washington (1996) 50 Cal.App.4th 568, 575, 577 [doctrine not applied to burglary]; People v. Johnson (2007) 150 Cal.App.4th 1467, 1477 [doctrine not applied to battery of a cohabitant].) The court found these cases distinguishable, however, and held that the Bailey rule applied to the offense of vandalism. (Arthur V., supra, at p. 67.)
The Arthur V. court reasoned that not all acts of misdemeanor vandalism can be aggregated to form a felony offense. Aggregation would be improper where a defendant tagged a school bus and then, four months later, tagged an unrelated fire hydrant, each time causing $200 worth of damage. In contrast, aggregation would be appropriate where a defendant smashed the window of a car and then slashed its tires. (Arthur V., supra, 166 Cal.App.4th at pp. 68-69.) Further, the Bailey rule provided the appropriate dividing line: "multiple instances of misdemeanor vandalism can be aggregated to form a single felony, unless 'the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan.'" (Id. at p. 69.)
Patrick submits Arthur V. is significant because it states that "the question of aggravation arises precisely because the application of graffiti to various properties all belonging to a single entity, when it occurs at roughly the same time as a result of a single 'spree,' is an indivisible course of conduct. Penal Code section 654 applies when the Bailey doctrine does not." The gist of Patrick's argument seems to be that a graffiti spree, such as his, consisting of multiple acts of misdemeanor vandalism, falls within section 654's multiple punishment bar as a matter of law.
We disagree. First, we find the facts of Arthur V. distinguishable. Arthur's criminal acts occurred at the same time, in the same place and during a single continuous confrontation. Patrick's situation would be analogous if he had limited his numerous tags to a single structure. He did not; he tagged multiple structures, curbs, sidewalks, fences, parking lots and a freeway overpass. His tagging was deposited on separate and distinct objects and structures spread out over at least a dozen blocks of the City of Fresno. Patrick had to travel considerable distance in tagging the many structures he did, which negates any inference that the offenses were committed pursuant to "one general impulse." We find In re David D. (1997) 52 Cal.App.4th 304 (David D.)more analogous.
We find the other cases Patrick cites, including People v. Gardner (1979) 90 Cal.App.3d 42, distinguishable on their facts as well.
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There, David tagged 34 Madera businesses and residences. The Welfare and Institutions Code section 602 petition aggregated the 34 instances of graffiti into one felony vandalism count, which the juvenile court found true. David D. challenged the legality under Bailey of aggregating the misdemeanor offenses to create one felony. (David D., supra, 52 Cal.App.4th at pp. 306-307.) This court held that even if the Bailey doctrine applied to vandalism offenses, it did not apply in David's case. Bailey presupposed a single victim, and while David's tagging occurred in a single crime spree, each tagging incident represented a separate offense affecting a different victim. (Id. at pp. 309, 311.)
Patrick contends his situation is distinguishable from that in David D. because his offenses had only one victim, the City of Fresno. We read the record differently. Patrick admitted 14 counts of vandalism of 14 separate pieces of property. While the petition alleges every act against the City of Fresno, the probation report indicates that some of the damaged structures were private property. Moreover, even if the city was the only named victim, the offenses defaced multiple neighborhoods thereby indirectly "victimizing" numerous residents in the tagged areas.
Second, punishing Patrick only once for his numerous taggings is not commensurate with his culpability. In People v. Harrison, supra, 48 Cal.3d 321, the defendant committed three brief digital penetrations during a seven- to 10-minute sexual assault. (Id. at pp. 325-326.) The court rejected the claim that the sexual offenses should be punished only once because they furthered the defendant's single objective of obtaining sexual gratification. Such a broad view of single intent or objective rewarded the more criminally ambitious defendant with a lesser punishment. The proper view recognized that a defendant who attempted to achieve sexual gratification by committing a number of base criminal acts was substantially more culpable than a defendant who committed only one act. (Id. at pp. 335-336.) Thus, if none of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental to any other, section 654 did not apply. (Id. at pp. 336, 338.)
Here, none of the various acts of vandalism was committed as a means of committing any other, none facilitated the commission of any other and none was incidental to any other. We agree with the juvenile court's factual findings that the offenses were committed at different times and in different places and their objectives were predominately independent of each other. Therefore, the court did not err in calculating the maximum period of confinement based on 14 consecutive sentences. Due Process Violation
In a related argument, Patrick contends that if consecutive sentences for an adult offender were barred by section 654, then the maximum period of confinement imposed violated due process. Because under section 654, the same maximum term of imprisonment could be imposed on an adult offender, there was no due process violation in this case. (In re Prentiss C. (1993) 14 Cal.App.4th 1484, 1488.)
DISPOSITION
The judgment is affirmed.