People v. Dupree CA6

I. BACKGROUND

Early on the morning of November 22, 2011, a San Jose police officer on routine patrol observed a vehicle parked in the driveway of a dental center that was closed for business at that hour. The officer saw a female individual sitting in the driver’s seat and a male individual, identified at trial as Dupree, standing outside the vehicle on the passenger’s side. The officer saw spray paint cans sticking out of the front pockets of 1 All further statutory references are to the Penal Code, unless otherwise indicated. Dupree’s sweatshirt. Upon speaking with Dupree, the officer observed wet spray paint on Dupree’s hand and smelled spray paint. The officer searched Dupree and found latex gloves in his pants pocket. Two spray painted words were found on a dumpster and shed across the street from the dental center. According to the officer, that graffiti appeared to be fresh and matched the colors of the spray paint found in Dupree’s possession. Other applications of similar graffiti were found in the vicinity. Dupree denied having applied the graffiti, claiming that he found the spray paint cans in the parking lot and some of the paint got on him. On March 28, 2012,…