California Court of Appeals, Second District, Seventh Division
In re KYLE T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,
KYLE T., Defendant and Appellant.
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.
Peters, under appointment by the Court of Appeal, for
Defendant and Appellant.
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.
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.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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).
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. 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
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).
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.
close of their case, the People did not offer into evidence
the graffiti removal cost list, photographs of the tagging,
or any other document.
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