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In re Miguel H.

January 12, 2010

IN RE MIGUEL H., A PERSON COMING UNDER THE JUVENIL COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MIGUEL H., DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court of Los Angeles County, Robert Leventer, Juvenile Court Referee. Affirmed with directions. (Los Angeles County Super. Ct. No. FJ43077).

The opinion of the court was delivered by: Jackson, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

INTRODUCTION

Miguel H. appeals from an order sustaining a petition under Welfare and Institutions Code section 602 after the juvenile court found he possessed tools to commit vandalism or graffiti (Pen. Code, § 594.2, subd. (a), count 2*fn2 ) and possessed etching cream/aerosol paint container with intent to deface (§ 594.1, subd. (e)(1), count 3). The court placed appellant in the care, custody, and control of the probation department subject to a previous order for Community Camp Placement.

On appeal, appellant challenges the court's finding that he violated section 594.1 by possessing items in a public place with the intent to deface. He also contends the juvenile court failed to calculate his maximum period of confinement or to determine that section 654 barred multiple punishment on the two counts. We agree that the case must be remanded for calculation of appellant's maximum period of confinement and to determine the effect of section 654. In all other respects, we affirm the order.

FACTS

On September 29, 2008, Anthony France (France), a campus supervisor at Mark Keppel High School, was instructed to go to a specific classroom and find appellant, who had been accused of drawing graffiti on school property. France saw graffiti on a restroom door and similar graffiti inside the restroom. He believed the graffiti was fresh and made with black shoe polish. France found additional graffiti on glass casing located outside the classroom where he went to find appellant.

France asked the teacher if she let anyone use the restroom. The teacher indicated that she had let appellant, who was not in the class when France arrived, use the restroom. The teacher showed France where appellant sat, and there was similar graffiti on the table. There was also similar graffiti on the classroom chalkboard.*fn3

The assistant principal at the school, Chris Takashita (Takashita), asked France to retrieve appellant's backpack. Appellant was brought to Takashita's office. Appellant acknowledged that the backpack belonged to him. He also stated that there was nothing in the backpack that he was not supposed to have. Inside the backpack were black shoe polish, white shoe polish, yellow spray paint, and an etching tool (small blade). Takashita asked appellant if the polish was his, and appellant said yes. Appellant told Takashita he used the polish on his shoes. Takashita found a folder in the backpack with graffiti similar to that found in the school, and appellant acknowledged that the folder belonged to him. No shoe polish was found on appellant's hands or under his nails.

DISCUSSION

A. Sufficiency of the Evidence that Appellant Violated Section 594.1, Subdivision (e)(1)

Section 594.1, subdivision (e)(1), provides that it is unlawful for any person under the age of 18 years to possess etching cream or an aerosol container of paint for the purpose of defacing property "while on any public highway, street, alley, or way, or other public place, regardless of whether that person is or is not in any automobile, vehicle, or other conveyance." Appellant contends that the finding he violated this statute cannot stand because a school is not a "public place" within the meaning of the statute. We disagree.

Both parties rely on the case of In re Danny H. (2002) 104 Cal.App.4th 92 in support of their respective positions. In Danny H., decided by Division Three of this court, the minor was found with an aerosol paint can in an area immediately adjacent to a railroad trestle. The trestle belonged to the railroad, but there was no evidence as to the ownership of the land on which the minor was found. (Id. at pp. 94, 96.)

The question before the court was whether the offense occurred in a public place within the meaning of section 594.1, subdivision (e)(1). The court found the meaning of the phrase "public place" in section 594.1, subdivision (e)(1), was ambiguous, noting that the statute did not define the phrase, "and the phrase, as a matter of common parlance, bears multiple meanings." (In re Danny H., supra, 104 Cal.App.4th at p. 97.) ...


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