People v. Toro CA2/4

BACKGROUND

The District Attorney of the County of Los Angeles filed an information alleging that on or about January 28, 2020, defendant committed felony vandalism under $400 for the benefit of a criminal street gang, to wit, the Varrio Nuevo Estrada (VNE) gang.2 (§§ 594, subd. (a), 186.22, subd. (d), 186.30, subd. (a).) On February 11, 2020, defendant filed a motion under section 1538.5 to suppress the following pieces of evidence: (1) statements he had made to investigating officers; (2) evidence regarding the officer’s “observations relating to graffiti”; and (3) evidence of a spray paint can and top that had been recovered at the scene. Defendant asserted the evidence resulted from an unlawful detention and patdown search. The

Subsequent references to statutes are to the Penal Code.

Vandalism causing less than $400 in damages is a misdemeanor. (§ 594, subds. (a), (b)(2)(A).) However, the gang allegation transforms it into a felony wobbler, punishable by one year in county jail or by imprisonment in state prison for one, two or three years. (§ 186.22, subd. (d), count 1.) The prosecution elected to file the vandalism charge as a felony.

2 prosecution opposed the…