IN RE: Irvin S. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In making its ruling, the court considered that appellant had not been removed from the school area to a more confined setting.   He was told that he was free to leave, that he was not under arrest, and that Kujawa wanted to speak with him.   The record reflected appellant's concern that he might be taken to juvenile hall.   Kujawa told appellant several times and she did not intend to take him there, but only to cite him.   It was appellant who raised the issue of whether he would be taken into custody.   Kujawa only asked that appellant be honest with her.   She told appellant that the ultimate decision rested with the court, but she did offer to speak to his probation officer.   The court found nothing coercive.   It noted that appellant never asked if he could leave or requested a break.   The non-custodial nature of the interview was further demonstrated by appellant's discussion of his prior offense and Kujawa's taking a call on her cell phone.

DISCUSSION

Appellant argues that the court erred in denying his motion to exclude his statements made to Detective Kujawa.   He asserts they were obtained in violation of Miranda because the interview constituted a custodial interrogation.

When reviewing a claim that a statement was obtained in violation of Miranda, we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence.  (People v. Bradford (1997) 14 Cal.4th 1005, 1033.)  Miranda advisements are only required, however, when a person is subject to custodial interrogation.  (People v. Mickey (1991) 54 Cal.3d 612, 648.)   In determining whether an interrogation is custodial, we consider “whether a reasonable person in defendant's position would have felt he or she was in custody.”  (People v. Stansbury (1995) 9 Cal.4th 824, 830.)   The totality of the circumstances must be considered as a whole.  (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.)   We apply a deferential substantial evidence standard to the trial court's factual findings, but independently determine whether the interrogation was custodial.  (People v. Ochoa (1998) 19 Cal.4th 353, 402.)

Appellant met with Kujawa in a conference room on school grounds.   No other officers were present and Kujawa informed appellant that he was not under arrest.   The bulk of the interview concerned appellant's juvenile history and the consequences if he were to admit to the tagging.   The tone of the questioning was informal.   Appellant reported difficulty contacting his probation officer, and Kujawa attempted to call him on her cell phone.   Appellant discussed the reasons why he tagged, and told Kujawa that he wished to become a tattoo artist.   The entire interview lasted only 45 minutes.   The juvenile court found that Kujawa made no threats, did not use coercion or pressure.   Her references to juvenile hall were made in response to appellant's questions.   He was familiar with the legal system and was on probation.   We conclude that the interview was not custodial in nature, thus Miranda warnings were not required.

The court also correctly denied appellant's motion to exclude evidence, in which he argued that he was illegally detained by Kujawa.   Substantial evidence supports the trial court's findings that appellant's encounter with Kujawa was lawful and the interview was therefore consensual.  (People v. Hughes (2002) 27 Cal.4th 287, 327.)

Cost of Graffiti Removal

Vandalism is defined as the malicious damage or destruction of the real or personal property of another.  (Pen.Code, § 594, subd. (a).)  If the amount of the damage exceeds $400, the crime is a felony;  if it is less than $400, the offense is a misdemeanor.  (Id., subd. (b)(1) & (2)(A).)   Kujawa testified that the cost of removing the graffiti exceeded $400.   Appellant argues that Kujawa's testimony was inadmissible hearsay.

Four photographs were admitted into evidence depicting areas that Irvin S. indicated he had tagged.   The locations were the Community Center Park East, Southwinds Park, South F Street and Doris Avenue.   The damaged property consisted of a lamppost, the back of a street sign, a structure in Southwinds Park and a trash can.   Kujawa calculated the square footage and attributed a value for the cost of graffiti removal.   She valued the clean-up cost in the four locations at $198 each, for a total of $792.   Kujawa testified that, in her job as a detective, she routinely estimated the cost of cleaning up graffiti for the Graffiti Abatement Program.   Appellant's counsel objected on the basis that the testimony called for an expert opinion and lacked foundation.   Both objections were overruled.

On cross-examination, Kujawa stated that she did not personally see the graffiti, take the photographs, have personal knowledge as to when the photographs were taken, or know whether the graffiti had been removed.   The court found beyond a reasonable doubt that from March 2007 through May of 2008, appellant vandalized property in the four areas specified above.   The court determined that the damage exceeded $400, sustained the petition and continued appellant as a ward of the court.   It found the offense to be a felony and ordered appellant to pay restitution to the City of Oxnard in the amount of $792.

Appellant argues that Kujawa offered no evidentiary basis for her calculation of damages and was not qualified to testify as an expert.   The People counter that Kujawa's testimony was not admitted as expert testimony.   They contend that, by overruling appellant's objection on that basis, the trial court was “implying” that the testimony was admitted as lay person testimony.  “[T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.   Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.”  (Evid.Code, § 702, subd. (a).)

Kujawa admitted that she did not know whether the graffiti had been removed, and did not specify how she arrived at the $198 dollar figure for graffiti removal for each piece of property.   There is no evidence the damage exceeded $400 or more-a necessary element of felony vandalism.   We must reduce the finding of felony vandalism to a finding of misdemeanor vandalism.   Given the nature of the items vandalized, and their locations, we reject appellant's argument that the People failed to prove that the vandalized property belonged to the City of Oxnard.

Aggregating Misdemeanors to Support Felony

Appellant argues that the trial court erred by aggregating the four counts of misdemeanor vandalism to support one count of felony vandalism.   We agree.   “ ‘[M]ultiple instances of misdemeanor vandalism can be aggregated to form a single felony, unless ‘the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan.’ ”  (In re Arthur V. (2008) 166 Cal.App.4th 61, 69, citing People v. Bailey (1961) 55 Cal.2d 514, 519.)   The Arthur V. court noted, however, that “aggregation would be improper where discrete criminal acts are separated by long stretches of time, such as where a defendant tagged a school bus and then, four months later, tagged an unrelated fire hydrant, each time causing $200 worth of damage.”  (In re Arthur V., at p. 68.)

In Arthur V., the defendant and a group of juveniles accosted two individuals as they were driving their car from a mall.   The defendant smashed the windshield of the car with a skateboard, causing $150 worth of damage.   When one of the victims got out of the car, the defendant hit him in the face with the skateboard.   The victim began running and tried to call 9-1-1 on his cell phone.   The defendant kicked the victim, causing him to drop and damage the cell phone, valued at $350.

The acts before us are separated by a much longer time span than that demonstrated in Arthur V. According to the petition, appellant's acts of vandalism were committed from March 2007 through May 2008.   The trial court made findings that one offense was committed on February 13, 2008 (vandalism of a lamppost) and another was committed on May 22 (vandalism of structure at Southwinds Park).   It made no findings as to the date the other two acts of vandalism were committed.   All four offenses occurred over a 14-month period, with the last two acts separated by a full three months.   Aggregation is improper under these circumstances because the acts of vandalism were discrete criminal acts committed on four separate occasions.   The trial court erred by aggregating the four misdemeanors to support the count of felony vandalism.

DISPOSITION

The finding that appellant vandalized property exceeding $400 in value (felony vandalism) is vacated.   The judgment aggregating the four instances of misdemeanor vandalism to a single instance of felony vandalism is reversed.   The matter is remanded for resentencing.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Manuel J. Covarrubias, Judge

Superior Court County of Ventura

Lyn A. Woodward, under appointment by the Court of Appeal, for

Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M Roardarmel, Jr., Supervising Deputy Attorney General, Dana M. Ali, Deputy Attorney General, for Plaintiff and Respondent.