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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
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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.
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Following a court trial, the trial court convicted Anastasiou of five counts
of felony graffiti vandalism and three counts of misdemeanor graffiti vandalism. (§ 594,
subds. (b)(1), (b)(2)(A).) The court also found that he committed the crimes to benefit a
criminal street gang within the meaning of section 186.22, subdivisions (b)(1) (counts 1,
5-8) and (d) (counts 2-4). The court suspended imposition of sentence and placed
Anastasiou on 36 months formal probation, with terms and conditions including 365 days
confinement in county jail. The court imposed various fines, fees, and assessments,
ordered victim restitution, and awarded Anastasiou 365 days of presentence custody
credit.
Anastasiou appeals and contends that the trial court erred by not
consolidating his multiple convictions for graffiti vandalism. (People v. Bailey, supra, 55
Cal. 2d 514, 519 [whether there is one theft offense or separate theft offenses depends
upon whether the evidence discloses one general intent or separate and distinct intents].)
DISCUSSION
Anastasiou argues that pursuant to People v. Bailey, supra, 55 Cal. 2d 514,
519, and In re Arthur V. (2008) 166 Cal. App. 4th 61, 65-69, his multiple convictions for
vandalism constitute but a single criminal offense. He points out that counts 1 through 7
were committed during the same evening in the same area and that all counts were
committed with the intent of benefiting the Colonia Chiques criminal street gang.
Anastasiou adds that the graffiti task force incurred the costs of removing the graffiti
painted on public and private property alike.
Generally, a criminal defendant can suffer multiple convictions for a single
criminal act or a series of related criminal acts. (§ 954; People v. Kirvin (2014) 231
Cal. App. 4th 1507, 1517.) In People v. Bailey, supra, 55 Cal. 2d 514, our Supreme Court
created an exception to the general rule allowing multiple convictions. Bailey held that
the prosecutor could charge a defendant's ongoing receipt of welfare benefits arising from
a single fraudulent application as a single count of grand theft rather than as discrete,
separate petty thefts because the thefts were all committed "pursuant to one intention, one
general impulse, and one plan." (Id. at p. 519.) "Subsequent decisions have construed
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Bailey as being a two-sided coin, granting criminal defendants the right to insist upon the
dismissal of all but one conviction when multiple crimes are unified by a single intent,
impulse or plan." (Kirvin, at p. 1517.)
This "converse Bailey" doctrine has been applied to crimes that treat harm
or damage as an element and permit the prosecutor to aggregate that harm or damage --
crimes such as theft and vandalism. (People v. Kirvin, supra, 231 Cal. App. 4th 1507,
1517-1518; People v. Tabb (2009) 170 Cal. App. 4th 1142, 1149 [multiple acts of theft
consolidated to a single felony offense]; People v. Carrasco (2012) 209 Cal. App. 4th 715,
717 [multiple acts of vandalism against different property owners consolidated to a single
felony offense].) "Until recently, the converse Bailey doctrine applied with full force to
this category of offenses, and entitled a defendant to dismissal of all but one conviction
for multiple crimes, even if each involved a complete criminal act, as long as the crimes
were committed 'pursuant to a single general impulse, intention or plan.'" (Kirvin, at
p. 1518.) In People v. Whitmer (2014) 59 Cal. 4th 733, 741, our Supreme Court
disapproved this earlier precedent and held that a defendant could suffer multiple
convictions "based on separate and distinct acts of theft, even if committed pursuant to a
single overarching scheme." "[A] serial thief should not receive a '"felony discount"' if
the thefts are separate and distinct even if they are similar." (Id. at pp. 740-741.)
Whitmer recognized, however, that its decision marked an abrupt departure from current
law and thus would only apply prospectively. (Id. at pp. 741-742.)
Whether a series of wrongful acts constitutes a single offense or multiple
offenses is a question of fact for the trier of fact to determine. (People v. Bailey, supra,
55 Cal. 2d 514, 519; In re Arthur V., supra, 166 Cal. App. 4th 61, 69.) Bailey permits
conviction of multiple offenses if the evidence establishes "separate and distinct" offenses
that "were not committed pursuant to one intention, one general impulse, and one plan."
(Bailey, at p. 519.)
Sufficient evidence supports the trial court's implied finding that the eight
charged counts of graffiti vandalism were separate and distinct offenses that were not
committed pursuant to one intention, general impulse, and plan. Anastasiou's tagging
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was not limited to a single structure; he tagged walls, a recreational vehicle, a trailer, and
a garage door over several blocks in El Rio as well as a wall in Oxnard on an earlier
occasion. The spray-paintings were between two and five feet high and as long as 30
feet. Anastasiou traveled a distance to tag as many structures as he did, outside the view
of witnesses. Some properties that Anastasiou defaced were private properties and some
were public walls. Anastasiou's intentions were several; he increased his reputation with
his criminal street gang by the tagging, he also increased his gang's reputation within
rival territory, and the tagging intimidated the many residents whose property and
surroundings were defaced by the brash oversized graffiti. Pursuant to the jurisprudence
prior to People v. Whitmer, supra, 59 Cal. 4th 733, Anastasiou was properly charged and
convicted of eight counts of graffiti-vandalism.
The order of probation is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Gilbert A. Romero, Judge
Superior Court County of Ventura
______________________________
Mark R. Feeser, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee,
Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
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