Filed 8/31/15 In re Brandon W. CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                     COURT OF APPAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re BRANDON W., a Person Coming
Under the Juvenile Court Law.
                                                                 D067375
THE PEOPLE,

         Plaintiff and Respondent,                               (Super. Ct. No. J235699)

         v.

BRANDON W.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Honorable

Roderick W. Shelton, Judge. Affirmed.

         Steven J. Carroll, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,

Assistant Attorneys General, Charles C. Ragland and Christopher P. Beesley, Deputy

Attorneys General, for Plaintiff and Respondent.
       Brandon W. (Appellant) contends there was insufficient evidence to sustain the

juvenile court's true finding that he was the person who tagged1 the concrete at a San

Diego high school, therefore committing misdemeanor vandalism. (Pen. Code, § 594,

subd. (a).) We disagree and affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND


       In March 2014, high school personnel discovered graffiti on a concrete surface

near the science building. The graffiti contained the letters "SDJ" and "EGO" written in

blue ink. The incident was reported to the school resource officer, Deputy Butcher and

the assistant principal, Lance Yocum. Butcher and Yocum spoke with a student about the

source of the graffiti. The student did not know who did the tagging, however he

reported that he saw Appellant and another student, Reggie M., together earlier that day

and he heard them say they were high.


       After hearing this information, Butcher and Yocum called in Appellant and Reggie

for questioning and to search their belongings. During the search, which Appellant does

not contest, Butcher found two pieces of paper in Appellant's backpack. One paper had

the letters "SDJ" written in two different styles of writing, along with what appeared to be

the letters "EGO" at the bottom. The other paper contained the alphabet in "practice




1     Tagging is the term for marking walls and surfaces with graffiti. (In re Angel R.
(2008) 163 Cal.App.4th 905, 912, fn. 6 (Angel).)

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writing."2 When Butcher asked Appellant whether the paper said "EGG" or "EGO,"

Appellant first replied that he did not know. However when asked again, he stated it said

"EGO." Butcher believed "SDJ" stood for the tagging crew, San Diego Juveniles, and

that "EGO" was likely the tagger's moniker.3 Appellant admitted to being a member of

the San Diego Juveniles tagging crew, but he denied going by the moniker "EGO."

        Butcher's search of Reggie's backpack revealed a blue dry erase marker wrapped

in a bandana and stuffed in a glove. The color of the marker and the width of the tip

appeared to match the graffiti found on the concrete earlier that morning. Reggie stated

he was holding the marker for a friend, whom he refused to identify. After the search

concluded, Appellant was taken into police custody by Butcher and later released to his

mother.

        A delinquency petition was filed against Appellant in July 2014. Appellant was

arraigned on one count of misdemeanor vandalism of property of a value less than $400.

(Pen. Code, § 594, subds. (a), (b)(2)(A).) Appellant filed a motion to suppress evidence,

which was subsequently denied. Presentation of evidence commenced in September

2014.




2       According to the People's expert, "practice writing" refers to when taggers practice
the lettering for their monikers or tags on scratch paper before tagging them in public.

3       A tagging crew is a group of taggers formed for the specific purpose of marking
surfaces with identifying letters, names or logos. (Angel, supra, 163 Cal.App.4th at
p. 912, fn. 6.) The People's expert testified a tagger's moniker is often his or her initials,
or a nickname given by the crew.
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       Detective Bryan Roberts (Roberts) testified as the People's expert witness on

tagging and graffiti. He explained that taggers will commonly write their moniker next to

the name of their crew as a way of getting recognition for their work. He testified that

after viewing the graffiti in question he believed "SDJ" to be the name of the tagging

crew and "EGO" to be the moniker of the tagger. Roberts opined that the student who

possessed the papers containing the letters written on the concrete was the same student

responsible for the graffiti because one tagger would not "walk around with somebody

else's paperwork in his backpack." He also explained it would be a sign of disrespect for

a tagger to use another tagger's moniker.

       David Oleksow testified as an expert in forensic document examination on behalf

of Appellant. After examining a photo of the graffiti in question and the papers found in

Appellant's backpack, Oleksow stated the results were "inconclusive" as to whether or

not the same person was responsible for both writings. Oleksow opined the writings on

the papers could have been written by two or three different people and therefore, he

could not eliminate Appellant as a possible writer of the graffiti in question.

       After the conclusion of the evidence, the court found Appellant committed

misdemeanor vandalism of property of a value less than $400. (Pen. Code, § 594, subds.

(a), (b)(2)(A).) The court further found Appellant to be a ward of the court and placed

him on probation. Appellant filed a timely notice of appeal.

                                       DISCUSSION

       When determining whether sufficient evidence exists to support the trial court's

conviction, we ask whether " 'there is any substantial evidence, including all reasonable

                                              4
inferences to be drawn from the evidence, of the existence of each element of the offense

charged.' " (People v. Watkins (2012) 55 Cal.4th 999, 1019 (Watkins).) We review the

record " 'in the light most favorable to the judgment . . . [for] evidence which is

reasonable, [and] credible, . . . such that a reasonable trier of fact could find the defendant

guilty beyond a reasonable doubt.' " (Ibid.) The standard of review is the same in

juvenile criminal proceedings as in adult criminal trials. (In re Cheri T. (1999)

70 Cal.App.4th 1400, 1403 (Cheri).)

       Appellant contends the court's inference of guilt based on Roberts's expert

testimony was unreasonable. He insists the expert opinion amounted to nothing more

than mere speculation and "an expression of [Roberts's] general belief," and therefore,

cannot serve as the basis for an inference of fact by the court. We disagree.


       " 'To warrant rejection of a witness' testimony that has been believed by the trier of

fact, there must exist either a physical impossibility that it is true, or its falsity must be

apparent without resorting to inferences or deductions.' " (Cheri, supra, 70 Cal.App.4th

at p. 1404.) As the reviewing court, we do not determine whether we believe the

evidence at trial establishes guilt, but whether, after reviewing the evidence in light of the

judgment, any rational trier of fact could have established guilt beyond a reasonable

doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

       The trier of fact was presented with the testimony of two experts, both of which

required a logical inference in light of the facts to establish appellant's guilt or innocence.

The record shows Appellant was at school the day the graffiti was found, was in


                                                5
possession of papers containing the same letters as the graffiti, and admitted to being a

member of the San Diego Juveniles tagging crew. In addition, another student reported

seeing Appellant with Reggie, the student who was later found in possession of a blue

marker the same width as the graffiti—which he claimed to be holding for a friend.

Armed with these facts, the court then heard from Roberts, who testified that based on his

experience and expertise in the field of tagging and graffiti, a tagger would neither tag

another person's moniker nor would a tagger carry around practice writings of another

person's moniker. In light of this evidence and the inferences to be drawn from such

evidence, we conclude the court's true finding Appellant committed misdemeanor

vandalism is supported by ample evidence in the record. (See People v. Bean (1988)

46 Cal.3d 919, 934 [noting a reviewing court must presume the "existence of any facts

that the . . . [trier of fact] might reasonably infer from the evidence"].)

       Moreover, even if the admission of Roberts's expert testimony was error, we

conclude it was harmless. "[T]he erroneous admission of expert testimony only warrants

reversal if 'it is reasonably probable that a result more favorable to the appealing party

would have been reached in the absence of the error.' (People v. Watson (1956)

46 Cal.2d 818, 836 (Watson); see also People v. Venegas (1998) 18 Cal.4th 47, 93

[applying Watson standard to the erroneous admission of expert testimony].)" (People v.

Prieto (2003) 30 Cal.4th 226, 247 (Prieto).)

       Here, we conclude there is ample evidence to support the court's true finding even

without Roberts's testimony. Appellant was an admitted member of the San Diego

Juveniles tagging crew and tacitly admitted to writing "EGO." Furthermore, he was on

                                               6
school grounds the morning the graffiti was discovered and had access to a tool similar to

the tool used to write the graffiti. In addition, Appellant was in possession of papers

containing the same two, three-letter initials as the graffiti in question. As such, there is

no reasonable probability a result more favorable to Appellant would have been reached

absent the error. (Prieto, supra, 30 Cal.4th at p. 247.)

       Appellant next contends the judgment should be reversed because the evidence

used to support the true finding was purely circumstantial. However, it is well

established that the standard of review is the same in cases where the prosecuting party

relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792;

Watkins, supra, 55 Cal.4th at p. 1020.) Although a trier of fact has a duty to acquit if it

finds the circumstantial evidence susceptible to several interpretations, "it is the . . . [trier

of fact], not the appellate court[,] which must be convinced of the defendant's guilt

beyond a reasonable doubt." (Watkins, supra, at p. 1020.) A reviewing court's

conclusion that the circumstances of the case can also support a contrary finding does not

warrant a reversal of judgment. (Ibid.)

       Based on the record in this case and after reviewing the evidence in light of the

judgment, we conclude substantial evidence exists to support the judgment.




                                                7
                                     DISPOSITION

      The judgment is affirmed.




                                                                            PRAGER, J.*

WE CONCUR:



McDONALD, Acting P. J.



O'ROURKE, J.




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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