California Court of Appeal Aug 31, 2015 No. D067375Unpublished
Filed 8/31/15 In re Brandon W. CA4/1
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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,
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. 3
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
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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
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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
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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.
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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. 8
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Holding. The court held that there was sufficient evidence to support the juvenile court's finding that the appellant committed misdemeanor vandalism, as the record contained substantial evidence linking him to the graffiti.
Issues
Whether there was sufficient evidence to sustain the juvenile court's finding that the appellant committed misdemeanor vandalism.
Whether the trial court's reliance on expert testimony regarding tagging culture was based on impermissible speculation.
Disposition. affirmed
Quotations verified verbatim against the opinion
“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.”
“we conclude there is ample evidence to support the court's true finding even without Roberts's testimony.”