People v. Anastasiou CA2/6

Filed 12/29/15 P. v. Anastasiou CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B261266 (Super. Ct. No. 2014007178) Plaintiff and Respondent, (Ventura County)

v.

MATTHEW ANASTASIOU,

Defendant and Appellant.

Matthew Anastasiou appeals an order of probation granted following conviction of five counts of felony graffiti vandalism and three counts of misdemeanor graffiti vandalism, with criminal street gang enhancement findings. (Pen. Code, §§ 594, subds. (b)(1), (b)(2)(A), 186.22, subds. (b)(1) & (d).)1 We conclude that the "converse Bailey" doctrine does not entitle Anastasiou to dismissal of all but one conviction. (People v. Bailey (1961) 55 Cal.2d 514, 519.) We affirm. FACTUAL AND PROCEDURAL HISTORY During the evening of January 29, 2014, Ventura County Sheriff's Deputy David Schwieder patrolled Cortez Street in the El Rio area. Schwieder noticed graffiti that had been recently spray-painted on nearby walls. The graffiti referenced the "Colonia Chiques" criminal street gang and "Spanky," a "relatively rare moniker." A rival gang, "El Rio Troublestreet," claimed the El Rio neighborhood.

1 All statutory references are to the Penal Code.

Investigation revealed this additional graffiti, among others, spray-painted on walls, a garage door, and vehicles in the neighborhood: "Spanky," on a garage door on Corsicana Drive; "Colonia" and "Spanky," on a wall near Simon Way; "Spanky," "Colonia," and "Eastside," on a wall on Corsicana Drive; "Spanky," "Colonia," and "RIP Noah," on a wall on Helsam Avenue; "Spanky," and "Colonia," on a wall on Walnut Drive, a motor home parked on Citrus Street, and a trailer parked in a driveway fronting Walnut Drive. At trial, the court received photographic evidence of the graffiti. Ventura County Sheriff's Deputy Francisco Jauregui testified at trial as a criminal street gang expert. He opined that Anastasiou was the "Spanky" referenced in the graffiti and that he had committed the graffiti vandalism on January 29, 2014, and in an earlier incident on Emerald Street in Oxnard in October 2013. Jauregui rested his opinion, in part, upon Facebook postings identifying Anastasiou as "Spanky" as well as photographs, documents, and items found during execution of a search warrant for Anastasiou's residence, vehicle, and cellular telephone. Jauregui opined that criminal street gang members commit acts of graffiti vandalism to earn the respect of their own gang members and to intimidate and challenge rival gang members. Jauregui also stated that graffiti "terrorizes members of the . . . community that have no gang affiliation." He confirmed that graffiti "essentially makes the normal, average citizen afraid to go out at night." Cynthia Hookstra, the graffiti task force coordinator for the City of Oxnard, testified regarding the detailed and specific costs of removing the charged counts of graffiti vandalism. Hookstra stated that her employees photographed the graffiti prior to removing it and, later, after the surfaces were cleaned. Oxnard Police Officer Jaime Miranda testified regarding the Colonia Chiques criminal street gang. He stated that Colonia Chiques gang members commit graffiti vandalism in rival territories to increase the status and reputation of the individual tagger and the Chiques gang. Miranda reviewed the evidence in this prosecution as well as police records and concluded that Anastasiou was "Spanky," an active member of the Colonia Chiques gang.