Opinion
B228148
08-16-2011
In re O.F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. O.F., Defendant and Appellant.
Gina McCoy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and David C. Cook, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MJ18932)
APPEAL from a judgment of the Superior Court of Los Angeles County, Robin Kesler, Referee. Affirmed as Modified.
Gina McCoy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant, O.F., appeals from the order of the juvenile court sustaining the petition under Welfare and Institutions Code section 602, alleging that he committed one count of felony vandalism in an amount over $400, in violation of Penal Code section 594. He contends there is not sufficient evidence to support the finding that he committed vandalism, or that any such vandalism caused damage of more than $400. We conclude that there is sufficient evidence to find appellant committed vandalism, but there is not sufficient evidence to support the felony vandalism finding.
FACTUAL AND PROCEDURAL HISTORY
Prosecution's Case
On February 24, 2010, at approximately 1:40 p.m., Michelle Gomez was picking her children up from Challenger Middle School. She was parked in front of a Mazda. As she was looking through her rearview mirror to see her daughter leave the school, she saw appellant approach the Mazda. Appellant rubbed his left hand against the Mazda's passenger side in a three-to-four-inch up and down motion, from the front bumper to the back bumper. He then walked away from the vehicle and returned to rub the car with his right hand in the same up and down motion.
Mary Kelly is the owner of the Mazda. She works at Challenger Middle School and was working on the day of the incident. She arrived at the school around 7:30 a.m., and at that time the car had only "minor" scratches "from [her] children using the car," but nothing on the passenger side. Upon returning to her car at approximately 1:40 p.m., Kelly noticed scratches on the car, described as "whirls all up and down the passenger side of the vehicle," purposefully made with a sharp object.
When Kelly approached the Mazda, Gomez got out of her car to tell Kelly what she had just seen. Gomez testified this was the first time she saw the marks on the car, which were in a continuous line up and down. Upon Kelly asking Gomez who was responsible, Gomez pointed out appellant. Gomez's son, who also attends Challenger Middle School, provided the name of appellant to the two women, but Kelly knew who appellant was because he had been in a previous altercation with Kelly's son. Appellant was walking home, but when he heard his name he returned to the car where the two women were.
Later that afternoon, appellant was interviewed by Detective Brian Dow and Detective Dillard of the Los Angeles County Sheriff's Department. Appellant initially denied being responsible for the damage, but later admitted that he "did it after school."
With respect to the damage to the Mazda, Kelly testified she received an estimate that it would be "approximately $1000 [to repair] a panel and there were four panels that were scratched." Defense counsel objected that this testimony was inadmissible hearsay, but the court overruled the objection and allowed the testimony to stand. Kelly also testified that she had not yet had the car repaired.
Defense Case
Patricia McGuire is a teacher at Challenger Middle School. On February 24, 2010, during her daily walk around 11:00 a.m., she noticed the Mazda and saw scratches on the side. The scratches were "back and forth" with "loop-de-loops all down the passenger side." McGuire said she noticed the scratches because she thought to herself it was "a shame" the "fairly new car" had "this much damage."
McGuire was on duty at approximately 1:40 p.m. when the students were being let out of school. Though she had a clear view of the Mazda, she did not see anyone scratch it. McGuire saw Kelly discover the scratches on the Mazda and observed her become very upset when appellant returned to the scene. McGuire then told Kelly that she had seen the scratches on the car at 11:00 a.m. However, McGuire also testified that upon looking at the car in the afternoon, there were a "few more" scratches on the car than were there in the morning.
Appellant testified that he walked by the Mazda at about 1:50 p.m., after school ended. He was walking home, but then returned to wait for his cousin. Appellant testified that he raised his hand at one point to make a beckoning motion, indicating for his cousin to come over to him. He denied ever touching the Mazda. Appellant claimed that Kelly "has it in for him" because appellant had gotten into a fight with Kelly's son, and, according to appellant, Kelly was spreading rumors about appellant and another student. Appellant claimed he only admitted to the detectives that he committed the vandalism because he felt pressured by them.
At the conclusion of the hearing, the court found beyond a reasonable doubt that appellant committed one count of felony vandalism, stating "the charges appear to be well in excess, [as] they said [it would cost] $1000 per panel," and over $400 is all that is needed for felony vandalism. The court placed appellant on probation in the home of his parents.
DISCUSSION
Sufficiency of the Evidence
Appellant contends that there is not sufficient evidence to support the juvenile court's finding that he committed vandalism, or sufficient evidence that the vandalism resulted in damage over $400, a necessary element for felony vandalism. We conclude that the evidence is sufficient to find appellant committed vandalism, but insufficient to find the damage exceeded $400.
A challenge to the sufficiency of the evidence in a juvenile proceeding is reviewed under the same substantial evidence standard of review that applies in an adult proceeding. (In re Roderick P. (1972) 7 Cal.3d 801, 808.) Under this standard, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Evidence that raises only a strong suspicion of guilt is not sufficient. (People v. Redmond (1969) 71 Cal.2d 745, 755.) But if the circumstances reasonably justify the juvenile court's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)
There is sufficient evidence to conclude appellant committed vandalism. Gomez, a person with no prior relationship to appellant, saw appellant rub both his hands in an up and down motion against the passenger side of the Mazda. A few minutes later, when Gomez got out of her car to tell Kelly what she just observed, Gomez testified that there were marks up and down the side of the car. Kelly testified that when she left her car on the morning of the incident there had been only "minor" scratches on the car and nothing on the passenger side. Additionally, there is a prior history between appellant and Kelly, in that appellant had fought with Kelly's son, and thus had a motive to damage the Mazda. Although McGuire testified that she saw marks on the car in the morning, she also stated that there appeared to be a "few more" marks on the car in the afternoon, adding to the evidence that marks appeared after appellant was seen near the car. Given all this evidence, it is reasonable to infer that appellant was responsible for the car's vandalism.
Any person who damages property other than his own is guilty of vandalism. (Pen. Code, § 594, subd. (a).) If the amount of damage is proven to be above $400, then the violation is a felony. (Pen. Code, § 594, subd. (b)(1).) Otherwise, the violation is a misdemeanor. (Pen. Code, § 594, subd. (b)(2)(A).)
In this case, the finding of felony vandalism was based solely on testimony by the owner of the damaged car, Kelly, who testified that she was told it would cost an estimated "$1000 a panel [to repair] and there were four panels that were scratched." Appellant objected to this evidence as hearsay, but the juvenile court overruled the objection. Respondent does not attempt to argue that the testimony was admissible. It was not. (See Evid. Code, § 1200, subd. (a) [hearsay evidence is a statement made by a person other than the testifying witness that is offered to prove truth to the matter stated]; Evid. Code, § 1200, subd. (b) [hearsay evidence is not admissible, unless an exception to the hearsay rule applies].)
Thus, we disregard this testimony. Consequently, because the statement cannot be considered, there is no proof that the damage done to the car is in excess of $400, and the felony vandalism finding cannot be sustained.
Respondent argues that even if Kelly's statement was inadmissible hearsay, any error made by the trial court was harmless. Respondent contends that the juvenile court judge could rely on the "common knowledge" of the cost of automobile repairs to determine the reasonable value of the damage. (Ferrari v. Mambretti (1943) 58 Cal.App.2d 318, 327.) We disagree. In Ferrari, while the court acknowledged past cases have asserted a rule that a trier of fact may use common knowledge to determine the reasonable value of services, it held that the value of services could not be fixed in that case without evidence because the trier of fact did not possess the common knowledge of such services' value. (Ibid.) Here, there is no basis on which to apply the common knowledge principle because the cost of repairing four car panels is not a matter of common knowledge. Evidence from a qualified source as to the value of the damage is necessary to determine whether the amount rises to a level where felony vandalism is appropriate.
Accordingly, the finding of felony vandalism must be reduced to misdemeanor vandalism, as there is not sufficient evidence to prove the amount of damage exceeded $400.
DISPOSITION
The finding of felony vandalism is reduced to misdemeanor vandalism under section 594, subdivision (b)(2)(A) of the Penal Code. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.