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In re Kyle T.

California Court of Appeals, Second District, Seventh Division

March 13, 2017

In re KYLE T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,
v.
KYLE T., Defendant and Appellant.

         APPEAL from an order of the Superior Court of Los Angeles County Ct. No. YJ37350, Wayne C. Denton, Commissioner. Affirmed in part, reversed in part and remanded with directions.

          Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

          SMALL, J.[*]

         INTRODUCTION

         Kyle T. appeals from juvenile court adjudication and disposition orders. The adjudication order declared Kyle a ward of the court and sustained a petition that the People filed under Welfare and Institutions Code section 602 alleging that Kyle had committed one count of felony vandalism (Pen. Code, § 594, subds. (a), (b)(1)) and one count each of misdemeanor vandalism (id., subd. (b)(2)) and misdemeanor possession of an aerosol container with intent to vandalize (id., § 594.1, subd. (e)(1)). The disposition order directed that Kyle be placed in a suitable juvenile detention facility for a maximum of three years.

         Kyle argues on appeal that there is insufficient evidence to support the juvenile court's finding on the felony vandalism count that Kyle caused $400 or more in property damage, which is the amount of damage necessary to punish vandalism as a felony rather than as a misdemeanor. (Pen. Code, § 594, subd. (b)(1) & (2)). We agree. In our view, the People failed to present sufficient evidence, specific to Kyle's acts of vandalism, demonstrating that the actual amount of damage he caused reached the felony vandalism threshold of $400. Therefore, we reverse the adjudication order in part and instruct the juvenile court to reduce the felony vandalism count to a misdemeanor vandalism count. We also reverse the disposition order and remand for a new disposition consistent with the reduction of the felony count to a misdemeanor.

         FACTUAL AND PROCEDURAL BACKGROUND

         On the night of May 28, 2015, Los Angeles Police Department Officer Jonathan Chavez noticed what appeared to be fresh blue graffiti, also known as “tagging, ” on an abandoned building at 2231 South Barrington Avenue in Los Angeles that was owned by the City of Los Angeles (City). Officer Chavez read the tagging to contain the word “Frost” or “Frosty, ” as well as the initials “JRH, ” and he estimated that the size of the tagging was two feet by three feet. A passerby whom Officer Chavez encountered near that building pointed down the street and stated, “He's over there tagging now.” Based on the passerby's tip, Officer Chavez alerted other officers who were working in the area. One of those officers, Gina Roh, found fresh blue tagging with the initials “JRH” on the south side wall of 2250 South Barrington Avenue, which also was City-owned. Additionally, Officer Roh saw fresh blue spray paint with the word “Frost” at Hai's Liquor, a nearby store. Officer Roh was uncertain of the size of the tagging at 2250 South Barrington Avenue and Hai's Liquor.

         Later that same night, Officer Samuel Leon spotted Kyle walking along South Barrington Avenue and stopped him. Kyle confessed to Officer Leon, “I did it. I was painting the wall because I was bored.” Kyle showed Officer Leon his waistband, where he had a can of blue spray paint and a paint marker; Kyle had blue paint on his fingers as well.

         On July 20, 2015, pursuant to Welfare and Institutions Code section 602, the People filed a three-count petition alleging Kyle, who was then 17 years old, had committed (1) felony vandalism by defacing with graffiti walls of properties owned by the City, causing damage to that property in an amount over $400 (Pen. Code, § 594, subd. (a); count 1); (2) misdemeanor vandalism by defacing with graffiti the wall at Hai's Liquor, causing damage to that property in an amount under $400 (id., subd. (a); count 2); and (3) misdemeanor possession of an aerosol paint container with the intent to deface (id., § 594.1, subd. (e)(1); count 3).

         The adjudication hearing on the petition was tried in front of the juvenile court on September 22, 2015. Officer Miguel Barragan was the lone prosecution witness to testify whether, for purposes of the petition's felony vandalism count, the amount of damage that Kyle caused to the two City-owned properties on South Barrington Avenue was $400 or more.[1] Officer Barragan testified that he previously had handled vandalism cases and that part of his assignment is to determine the cost of repairing walls and other structures damaged by vandalism. The prosecutor asked him, “[H]ow is it that you go about determining the dollar amount of City property that needs to be repaired due to vandalism or tagging?” Officer Barragan answered, “[F]or City properties, we have a graffiti removal cost list. [¶]... [¶] It is issued by the [City] for my investigations on how to come up with estimates of removal of graffiti.”

         With implicit reference to the dimensions of the tagging at 2231 South Barrington Avenue, the prosecutor asked Officer Barragan, “Does [the graffiti removal cost list] have a dollar amount for how much it costs to approximate [sic] a two- by three-foot tag on a wall?” “Yes, ” Officer Barragan answered. “What is that dollar amount?” the prosecutor asked. Kyle's counsel objected to that question on the grounds of hearsay and lack of foundation. The court overruled the objections, and Officer Barragan responded, “According to the graffiti removal cost list, it is $400 for each incident of removing graffiti.” Applying that per-incident rate, Officer Barragan stated that it would cost a total of $1, 200 to remove the three tags on the two City-owned properties (two tags on one wall at 2231 South Barrington Avenue and one tag at 2250 South Barrington Avenue).

         On cross-examination, Officer Barragan stated that the graffiti removal cost list was one page long. He conceded that he did not prepare the list-someone else, whom he did not identify, prepared it. Nor was Officer Barragan able to explain how the list's cost removal determinations were made. Officer Barragan also conceded that he was unaware whether any repairs had been made to the two City-owned properties in question. Additionally, he conceded that he was unaware of the cost of materials to make the repairs. And he conceded that he did not know how long it would take to make the repairs and how many people would be needed to make them. Officer Barragan did say that he had visited the two properties as part of his investigation. But he acknowledged that his repair cost figures were based entirely on the graffiti cost removal list.

         At the close of their case, the People did not offer into evidence the graffiti removal cost list, photographs of the tagging, or any other document.

         After the People rested, Kyle's counsel made an oral motion to reduce the petition's felony vandalism count to a misdemeanor, “based on the testimony of the evaluation ...


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