Filed 8/6/13 In re Robert L. CA2/7

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re ROBERT L., a Person Coming Under                               B244586
the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. KJ36392)
THE PEOPLE,

         Plaintiff and Respondent,

         v.

ROBERT L.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County.
Phyllis Shibata, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 2.) Reversed.
         Elana Goldstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Analee J.
Brodie, Deputy Attorneys General, for Plaintiff and Respondent.


                                             ____________________
       Robert L. appeals from an order placing him on probation without wardship after
the juvenile court sustained a petition alleging he had committed misdemeanor
vandalism. He contends the evidence is insufficient to support the finding. We reverse.

                 FACTUAL AND PROCEDURAL BACKGROUND

       In March 2011, Robert L., then 13 years old, lived in the B and I Group Home in
the City of Pomona. Robert caused a disturbance in the communal kitchen, and police
were summoned. Thereafter, a delinquency petition was filed charging Robert with
misdemeanor vandalism. The petition specifically alleged Robert “did unlawfully and
maliciously damage and destroy real and personal property, to wit, CARPET, FLOORS
AND WALLS not his/her own, belonging to B & I Group Home” in violation of Penal
Code section 594, subdivision (a).
       At the jurisdiction hearing, Renee Hudson, the group home facilities manager,
testified that Robert had thrown food around in the kitchen and made verbal threats on
March 16, 2011. The prosecutor asked Hudson, “What did you have that was damaged?”
Hudson answered, “The kitchen counter, the floor, the floors [sic], and a lot of - - most of
the food was destroyed.” The prosecutor then inquired, “Okay. And did it cost money
to fix what [Robert] had done?” Hudson answered, “Yes.” The prosecutor asked
whether the cost was less than $400, and Hudson replied that it was.
       On cross examination, Hudson testified the kitchen cabinet “had some destruction
on it[;]” “[the cabinet] was destroyed by some food items that was [sic] thrown around,”
but then stated that all food items on the cabinet were removed by wiping the cabinet.
Hudson described the food items as “seasoning stuff” and other food from the cabinets
and the refrigerator. According to Hudson, the food items thrown on the kitchen cabinet
and floor were subsequently cleaned up.
       At the close of the People‟s evidence, the juvenile court denied a defense motion
to dismiss the allegation for insufficient evidence pursuant to Welfare and Institutions
Code section 701.1. Robert neither testified nor presented other evidence in his defense.



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        After argument by counsel, the juvenile court sustained the petition and found
Robert to be a person described by Welfare and Institutions Code section 602. At the
disposition hearing, without declaring Robert a ward of the court, the juvenile court
placed him on probation for six months pursuant to Welfare and Institutions Code section
725, subdivision (a). Robert appealed. (In re Do Kyung K. (2001) 88 Cal.App.4th 583,
587-590.)

                                       DISCUSSION

        1. Standard of Review
        The same standard governs review of the sufficiency of evidence in juvenile cases
as in adult criminal cases: “[W]e review the whole record to determine whether any
rational trier of fact could have found the essential elements of the crime or special
circumstances beyond a reasonable doubt. [Citation.] The record must disclose
substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and
of solid value—such that a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence. [Citation.]
„Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]‟ [Citation.] A reversal for
insufficient evidence „is unwarranted unless it appears “that upon no hypothesis whatever
is there sufficient substantial evidence to support”‟ the jury‟s verdict.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357; see In re Matthew A. (2008) 165 Cal.App.4th 537,
540.)




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       2. The Evidence Was Insufficient to Support a Finding of Vandalism
       To commit vandalism within the meaning of Penal Code section 594, an
individual must maliciously deface with graffiti or other inscribed material, damage or
destroy any real or personal property not his or her own. (Pen. Code, § 594, subd. (a).)
Here, the juvenile court found true the allegation that Robert committed vandalism, and
further found that the destruction or damage amounted to less than $ 400 in violation of
Penal Code section 594, subdivision (b)(2)(A).
       The petition alleged that Robert had damaged and destroyed the carpet, floors and
walls of the group home. However, no evidence was presented demonstrating that
Robert damaged or destroyed either the carpet or the walls. As for the floors, the
facilities manager testified that the only issue as to the floor was that Robert had tossed
food, which was then mopped off the tile floor. Robert argues on appeal, as he did before
the juvenile court, that because the food-covered floor was easily restored to its original
condition by cleaning, the prosecution failed to prove Robert‟s conduct resulted in
damage. Robert acknowledges the statute does not contemplate permanent adverse
effects to the particular property. Nonetheless, he maintains there still must be some
actual physical harm to the property, which did not occur here, to support a finding of
vandalism.
       There is no statutory definition of the word “damage” in the context of vandalism.
Giving the words their ordinary meaning, and in the absence of ambiguity, we assume the
plain meaning of those words govern. (Day v. City of Fontana (2001) 25 Cal.4th 268,
272; see also Smith v. Superior Court (2006) 39 Cal.4th 77, 83.) According to the Oxford
English Dictionary (2013 U.S. version) the primary meaning of the word damage, as a
transitive verb, is “to inflict physical harm on (something) so as to impair its value,
usefulness, or normal function.” (Oxford English Dict., http://oxforddictionaries.com.)
Not only does the definition lack an element of permanence, it also extends to the loss of
any normal use or function resulting from the physical harm. There is, however, no
evidence the food-covered floor resulted in any loss of use or function. While there was
testimony that food was destroyed, the record failed to show whether the less than $400

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spent to “fix what Robert had done” related solely to the cost of that food. The
allegations were specific but there were no charging allegations related to that food, as
would be required to sustain the petition on these factual findings. See In re Robert G.
(1982) 31 Cal.3d 437, 445 [basis for petition must be specifically alleged, or necessarily
included within alleged offense].
       Because the People submitted no evidence probative of the vandalism alleged, the
jurisdictional finding cannot stand.

                                       DISPOSITION

       The jurisdiction order is reversed.



                                                 ZELON, J.


I concur:




              WOODS, J.




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       PERLUSS, P. J., Concurring.
       I agree the People failed to prove Robert L. committed the offense alleged in the
delinquency petition.1 I write briefly to make clear my view that vandalism within the
meaning of Penal Code section 594, subdivision (a), can be committed by one who
maliciously befouls a room—that is, with the unlawful intent to annoy or injure another2
—even if the resulting mess can be mopped or wiped up.
       Section 594, subdivision (a), provides in part, “Every person who maliciously
commits any of the following acts with respect to any real or personal property not his or
her own, in cases other than those specified by state law, is guilty of vandalism:
[¶] (1) Defaces with graffiti or other inscribed material. [¶] (2) Damages.
[¶] (3) Destroys.” An act of vandalism does not require proof of permanent damage or
injury. (Cf. In re Nicholas Y. (2000) 85 Cal.App.4th 941, 944 [to “deface” as an element
of vandalism does not incorporate an element of permanence; “a marring of the surface
[of a glass window] is no less a defacement because it is more easily removed”].) As
Justice Zelon explains, using the ordinary meaning of the undefined verb “damages”
within the context of section 594, to constitute damage there need be only a temporary
impairment of the normal use or function of the property involved. (See, e.g., Oxford
English Dict. <http://oxforddictionaries.com/ us/definition/american
_english/damage?q=damage> [as of August 6, 2013]; Dictionary.com
http://dictionary.reference.com /browse/damage [August 6, 2013].)




1       Robert L.‟s malicious destruction of the food unquestionably constituted
vandalism within the meaning of Penal Code section 594, subdivision (a)(3); but there
was no charging allegation in the delinquency petition relating to the food, and the People
failed to seek leave to amend the petition to conform to proof.

2        “Malice” and “maliciously” are defined by Penal Code section 7, subdivision 4, as
“import[ing] a wish to vex, annoy, or injure another person, or an intent to do a wrongful
act . . . .”
         Statutory references are to the Penal Code unless otherwise indicated.
       If there was evidence the house manager had spent several hours cleaning and
tidying the kitchen or if she had hired an outside crew to do the work, there would be no
question that vandalism had been proved. Or if Robert had smeared feces on the kitchen
cabinets and floor rather than throwing food from the refrigerator and scattering
seasonings, requiring the use of disinfectant in addition to whatever the group home‟s
normal cleaning routine might be, vandalism would surely be evident. While the cost of
clean-up is relevant to whether the offense was a felony or a misdemeanor (compare
§ 594, subd. (b)(1) [felony if amount of defacement, damage or destruction is $400 or
more] with § 594, subd. (b)(2) [misdemeanor if amount is less than $400]), and the
unpleasantness of the clean-up effort may be important to our sense of fairness in
pursuing criminal charges,3 either malicious action that creates a cleanable mess is
vandalism or it is not. Accordingly, if the evidence had established that Robert‟s outburst
disrupted or interfered with the normal use of the kitchen in any way, until that room was
restored to its original condition, its functionality was necessarily impaired; and
vandalism proved.
       This commonsense interpretation of the statutory language is reinforced by the
evolution of Welfare and Institutions Code section 742.16, a provision closely related to
section 594. In 1979 former section 594, subdivision (a), provided simply, “Every person
who maliciously injures or destroys any real or personal property not his own, in cases
otherwise than those specified in this code, is guilty of vandalism.” (Stats. 1977, ch. 165,
§ 8, p. 642.) A separate statute, former section 594.5, subdivision (a), provided, “Any
person who, without the consent of the owner, willfully defaces, by paint or any other
liquid, the property of another is guilty of a misdemeanor . . . .” (Stats. 1974, ch. 340,
§ 2, p. 671.) Former section 594.5, subdivision (b), authorized the court as a condition of
probation for any person found guilty of defacing property to require the defendant to

3       Although something seems amiss in calling the police and then filing a
delinquency petition based on an obviously troubled 13-year-old boy having made a mess
in the kitchen of the group home in which he was living, the back story has not been
disclosed and, in any event, is not for us to evaluate.

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“wash, paint, or repair the defaced property, or otherwise make restitution to the property
owner.” (Ibid.)
       In 1979 the two provisions were combined in section 594, which proscribed
specified forms of graffiti as well as the malicious damage or destruction of property.
(Stats. 1979, ch. 200, § 1, p. 445.) In addition, the newly revised statute incorporated and
expanded the probation condition provision in former section 594.5. As enacted effective
January 1, 1980, former section 594, subdivision (b)(3), provided, “A court shall require
as a condition of probation for any person guilty of vandalism . . . that such person wash,
paint, repair or replace the defaced, damaged or destroyed property, or otherwise make
restitution to the property owner.”4 The new legislation also added former section 728 to
the Welfare and Institutions Code (Stats. 1979, ch. 200, § 4, pp. 445-446), which
provided, “If a minor is found to be a person described in [Welfare and Institutions Code]
Section 602 by reason of the commission of vandalism, and the court does not remove the
minor from the physical custody of the parent or guardian, the court as a condition of
probation . . . shall require the minor to wash, paint, repair or replace the defaced,
damaged or destroyed property, or otherwise make restitution to the property owner.” In
1994 this provision was reenacted and renumbered as Welfare and Institutions Code
section 742.16, subdivision (a), without significant substantive change other than to
replace the term “vandalism” with a listing of the relevant Penal Code provisions,
sections 594, 594.3, 594.4, 640.5, 640.6 and 640.7. (1994 Stats., ch. 909, §§ 10, 11,
p. 4606.)
       As the Attorney General argues, the Legislature‟s mandate to the juvenile court to
order minors who have committed any type of vandalism, not just acts of graffiti, to
“wash, paint, repair or replace” property that has been “defaced, damaged or destroyed”
strongly supports the conclusion that the offense includes malicious acts that can be
rectified simply by cleaning (mopping and wiping) the affected property. In this case,


4      Former subdivision (b)(3) was deleted from section 594 in 1982. (See Stats. 1982,
ch. 1413, § 3, pp. 5402-5403.)

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however, there was no evidence Robert‟s actions impaired the functionality of the kitchen
or required anything more than, or different from, the post-meal sweeping, wiping and
mopping that is undoubtedly part of the daily routine in a group-home kitchen. It may
well have done so, but there was no evidence to support such a finding: The group-home
manager testified only that the dirty cabinet was cleaned by wiping and the tile floor by
mopping. The resulting evidentiary gap requires a reversal of the juvenile court‟s order
sustaining the delinquency petition. (See People v. Davis (July 25, 2013, S198434)
___ Cal.4th ___ [2013 Cal.Lexis 6016, *10] [“„[a] reasonable inference . . . “may not be
based on suspicion alone, or on imagination, speculation, supposition, surmise,
conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from
evidence rather than . . . a mere speculation as to probabilities without evidence”‟”].)




                                                  PERLUSS, P. J.




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