Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, Super. Ct. No. LA056885, Richard Kirschner, Judge
Benjamin Owens, 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, Susan D. Martynec, Linda C. Johnson, Supervising Deputy Attorneys General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant was convicted by jury of felony vandalism exceeding $400 in damage (Pen. Code § 594, subd. (a)) and the jury found true the special allegation that the offense was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(A).) The trial court denied probation and imposed the middle term of two years in state prison and a consecutive two-year gang enhancement. Appellant argues that he was denied the effective assistance of counsel and claims the trial court erred by admitting opinion testimony. We affirm.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS
Officer David Acee, with the Los Angeles Police Department, watched through binoculars as appellant and a companion spray-painted a railroad bridge. They spray-painted the walls and pillars of the bridge, as well as the ground. Three juveniles acted as lookouts.
Acee and another officer approached the bridge and saw that appellant had wet khaki-colored spray paint on his hands and clothing. Painted on the bridge were the words 13." "Fat Boy" is appellant's gang moniker and "Bst 13" is the Blythe Street Gang, to which he belonged.
The officers took all five suspects into custody. Three weeks earlier, police had found appellant on Blythe Street, standing approximately 10 feet away from gang graffiti that read, "Fat Boy" and "Bst." Appellant was also a member of the Pacoima Crazy Boys street gang, and had the moniker "Triste."
DISCUSSION
Ineffective Assistance of Counsel
Appellant claims that he was denied his right to the effective assistance of counsel because his attorney failed to object to the admission of evidence regarding vandalism to the bridge. Vandalism is defined as the malicious damage or destruction of the real or personal property of another. (§ 594, subd. (a).) If the amount of the damage exceeds $400, the crime is a felony; if it is less than $400, the offense is a misdemeanor. (Id., subd. (b)(1) & (2)(A).)
At trial, Acee testified that he had been involved in 50-60 vandalism investigations. His responsibilities included calculating the cost of removing graffiti. Acee based his estimates on a single-page document generated by the City of Los Angeles, entitled "Office of Community Beautification, Cost of Graffiti Removal" (cost document). It listed the cost of removing graffiti from a bridge as $475. The document was marked as an exhibit and the prosecutor immediately published it to the jury via an overhead projector. The dollar amount had been highlighted. Defense counsel made a hearsay objection, which the court sustained.
The prosecutor then asked Acee how he had calculated the cost of removing graffiti in other vandalism cases. Acee testified that he used the same cost document, but stated that the cost is usually higher than $475, because removal includes the added expenses of sandblasting, repainting, and blocking pedestrian and vehicular traffic. Defense counsel objected to Acee's testimony on the ground that it lacked foundation and was hearsay. The court overruled the objection, reasoning that the testimony was based on Acee's personal experience. Defense counsel made no further objection, and Acee was permitted to testify that he estimated that the total cost of graffiti removal would be $1,425. He based this on the City's cost estimate of $475, which he multiplied by three to account for three sections of the bridge that were vandalized.
After the defense rested, defense counsel objected to moving the cost document into evidence. The trial court excluded the document. During closing argument, the prosecutor made reference to the cost document. Defense counsel objected on the ground that the document had not been moved into evidence. The court sustained the objection. The prosecutor then summarized Acee's testimony concerning his cost estimates. Defense counsel did not object.
It is undisputed that the cost document was hearsay because it was offered to prove the truth of the matter asserted--the cost of cleaning up the graffiti--and to establish damage of $400 or more. (Evid. Code, § 1200, subd. (a).) However, there is no merit to appellant's argument that defense counsel failed to object to admission of this document. The record reflects that defense counsel objected repeatedly to its admission and all his objections were sustained.
Appellant next contends that he was prejudiced because his counsel made an objection during the prosecutor's closing argument concerning reference to the cost document, but did not object to her summary of Acee's testimony.
Defense counsel's failure to object to the prosecutor's reference to Acee's testimony was not prejudicial. Counsel had objected to Acee's testimony at trial, and his objection was overruled. There was nothing to be gained by making this objection again. (People v. Price (1991) 1 Cal.4th 324, 386-387 [counsel is not ineffective for failing to raise futile objections].) Appellant has not proved that defense counsel's performance was deficient or that he was prejudiced by counsel's failure to object during closing argument. He cannot prevail on his ineffective assistance of counsel claim. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)
Opinion Testimony
Appellant argues that, absent the admission of Acee's testimony, there is no evidence that he vandalized property exceeding $400 in value, and his conviction for felony vandalism must therefore be reversed. He contends that would have received a lesser sentence had Acee's testimony been excluded, because misdemeanors are not subject to a gang enhancement.
The trial court admitted Acee's testimony concerning the cost of graffiti removal as within Acee's personal knowledge. "[T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter." (Evid. Code, § 702, subd. (a).) A lay witness may testify to his opinion when it is rationally based on his perception and helpful to a clear understanding of his testimony. (Evid. Code, § 800, subds. (a) & (b). Admission of a lay person's opinion testimony is subject to the sound discretion of the trial court. (People v. Mixon (1982) 129 Cal.App.3d 118, 127.)
Acee testified that he had investigated 50-60 vandalism cases and knew that the city's cost estimates were usually too low. He relied upon his experience that graffiti removal also includes the expenses of sandblasting, repainting and blocking pedestrian and vehicular traffic. However, the dollar amount that formed the basis of his estimate was drawn from inadmissible evidence--the cost document--thus Acee's testimony was likewise inadmissible. (Evid. Code, § 803.) Had defense counsel objected to this ruling, the trial court would have been required to exclude this evidence. (Ibid.) Defense counsel's failure to object waived appellant's argument on appeal. (People v. Farnam (2002) 28 Cal.4th 107, 153.)
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.