NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ROTHSCHILD, J.

A jury convicted Andrew J. Chavez and Jose A. Aguayo of six counts of felony vandalism (spray painting graffiti) and also convicted Aguayo of one count of felony possession of an unregistered firearm. The jury found that the defendants committed the vandalism for the benefit of a criminal street gang. The court sentenced Chavez to a total of five years in prison and Aguayo to nine years, four months in prison. We affirm both convictions but vacate the sentences and remand for resentencing.

FACTS AND PROCEEDINGS BELOW

In September 2009 at approximately 1:00 a.m. Liliana Munoz parked her car near the corner of Cesar Chavez Avenue and Mott Street in East Los Angeles. She saw three male Hispanics walk across the street together but couldn't see their faces. As she watched, two of the men started spray painting graffiti on nearby walls while the third man stood apart from them turning his head from side to side as though a look-out. She saw no other people in the area. After the men left, Munoz saw the words "East L.A. 13," the name of a local gang, painted on the walls. When Munoz got home, she called the Hollenbeck Division police station and reported the incident. The time of her call is not in the record.

Officer Rafael Hernandez received a radio call at approximately 1:50 a.m. reporting tagging in the vicinity of Cesar Chavez and Mott. Hernandez and his partner immediately drove to the area. Hernandez estimated that between two and five minutes elapsed from the time he received the call and the time he encountered three suspects near the corner of Mott and New Jersey Street, approximately one block south of where Munoz had seen the taggers. Two of the men were defendants Chavez and Aguayo, the third was Moises Casillas.1 When Hernandez and his partner turned their car's spotlights on the men, Aguayo and Casillas tossed cans of spray paint on the sidewalk and Aguayo threw a handgun on the steps of a house. All three men then fled on foot but were soon apprehended. Hernandez admitted at trial that he never saw Chavez with a spray paint can or a gun and never saw paint on his hands.

When Hernandez returned to the scene of the tagging he observed fresh paint on a garage, apartment walls, city signs and sidewalks and an RV in the area. The graffiti included "East L.A. 13" and the monikers "C-Boy" and "Huero." Over Aguayo's objection the court admitted evidence that Aguayo was a member of the L.A. 13 gang and that his moniker was "C-Boy."

Following his arrest, Chavez told Hernandez that he wasn't a member of the L.A. 13 gang but only hung around with them. Officer Felipe Pardo, however, testified that in September 2008 Chavez told him he was a member of that gang.

At trial, Hernandez testified that when he first approached the area of Cesar Chavez and Mott he saw graffiti on several buildings. He knew the graffiti was fresh because he could smell the paint and because he had passed through that area only 20 or 30 minutes earlier and it was graffiti-free.

Two police officers made reference to Aguayo's prior arrests in their testimony in violation of the court's pretrial order. The court admonished the jury to disregard that testimony.

The jury convicted Chavez and Aguayo of six counts of vandalism and found as to each count that the damage was $400 or more making the crimes felonies under Penal Code section 594, subdivision (a), and found that the crimes were committed for the benefit of a criminal street gang. The jury also convicted Aguayo of possession of an unregistered firearm. The court sentenced Chavez to a total of five years in prison and sentenced Aguayo to nine years, four months in prison. Each defendant filed a timely appeal.

DISCUSSION

I. SUFFICIENT EVIDENCE SUPPORTS CHAVEZ'S CONVICTIONS

In determining the legal sufficiency of the evidence, "appellate courts must review `the whole record in the light most favorable to the judgment' and decide `whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Hatch (2000) 22 Cal.4th 260, 272.) Although no direct evidence places Chavez at the scene of the tagging, the People maintain, and we agree, circumstantial evidence supports the jury's conclusion that Chavez was the third tagger. The witness saw three persons involved in the vandalism at 1:00 in the morning and no other people in the area; the graffiti consisted of L.A.13 gang signs, Chavez just like Aguayo and Casillas belonged to the L.A. 13 gang; less than an hour after the tagging, at 1:50 in the morning, Aguayo, Casillas and Chavez were together near the site of the tagging. When they saw the police arrive Casillas and Aguayo threw spray cans on the street and all three fled from the police. This constitutes substantial evidence.

II. AGUAYO WAS NOT PREJUDICED BY EVIDENCE HE ADMITTED HIS GANG MEMBERSHIP DURING BOOKING

Aguayo argues the court committed prejudicial error in admitting evidence that during the booking procedure, before he was given Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436), he admitted membership in the L.A. 13 gang.

We need not decide whether statements made by a defendant during booking procedures and before he is given Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436) should be excluded from evidence. Any error in this case was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Other properly admitted evidence showed that Aguayo had admitted his gang membership to the police on numerous occasions and at the time of his arrest Aguayo bore tattoos identifying him as an L.A. 13 member. Furthermore, it is not reasonably probable that Aguayo's conviction resulted from prejudice against him as a gang member. There was strong evidence of Aguayo's guilt. He was found near the scene of the taggings less than an hour after the crimes. His gang moniker, C-Boy was painted on a wall. When the police approached, he and Casillas tossed spray paint cans on the sidewalk and fled. The colors of paint in the cans matched the colors of graffiti in the tagging.

III. BRIEF MENTIONS OF AGUAYO'S PREVIOUS ARRESTS WERE NOT PREJUDICIAL

Aguayo maintains the court erred in denying his motion for a mistrial after two police officers made reference to his previous arrests in their testimony in violation of the court's pretrial order. We disagree.

Upon being asked how he knew Aguayo, officer Ricardo Verdugo answered: "I arrested him before." The court admonished the jury to disregard this answer and explained that the arrest had to do with possession of fireworks which "has no bearing on any issue." Later, officer Sergio Leyva testified that he knew that Aguayo was a member of the L.A. 13 gang because "[h]e has gang tattoos and he has been arrested for crimes related to his gang, East L.A. Trece." The court again admonished the jury that the comment about arrests "is to be disregarded." The court reminded the jury that what it said about arrests earlier "applies here as well."

The court did not abuse its discretion by denying Aguayo's motion for a mistrial. The references to his prior arrests were brief, the court adequately admonished the jury and the evidence of Aguayo's guilt of the present crimes was so strong that any error would be harmless beyond a reasonable doubt. (See discussion in Part III, ante.)

IV. THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT THE DAMAGE FROM EACH INCIDENT OF VANDALISM WAS $400 OR MORE

Felonious vandalism requires that "the amount of defacement, damage or destruction" to each property must be "four hundred dollars ($400) or more." (Pen. Code, § 594, subd. (b)(1)2; In re David D. (1997) 52 Cal.App.4th 304, 310-311 [damage to separate properties cannot be aggregated to comprise the $400 minimum.) If the amount of damage is less than $400, the vandalism is usually a misdemeanor (§ 594, subd. (b)(2)(A).), but if the vandalism is for the benefit of a street gang it may, in the court's discretion, be punished in state prison regardless of the dollar amount of damage. (§ 186.22, subd. (d).)

In this case, the only proof of the amount of damage caused by the vandalism consisted of the stipulation entered into by the prosecutor and counsel for the defendants. The stipulation provided in relevant part that "graffiti[] was tagged on the following properties[:] the property of Maria Socorro, Jackie Monterrosa, of Manuel Cons, the RV of Savas Blanco, the residence of Kazuo Teramura and two city locations . . . [and] that the damage caused was over $400."3 Chavez and Aguayo maintain that the stipulation, fairly read, can mean only one thing: "that the damage caused was over $400;" not that the damage caused to each property was over $400. We agree. The prosecutor further supported this interpretation by telling the jury: "[The] stipulation basically said that in the early morning hours of September 19, 2009, that there was blue East L.A. Trece tagging . . . on the personal properties of the victims that are named in Count 1 and Count 3 through 7, and that that vandalism caused damage over $400." (Italics added.)

The prosecution had the burden of proving the amount of damage as to each count was $400 or more and it failed to do so. Its burden was not relieved by the defendants' acceptance of the stipulation. (People v. Jones (2011) 51 Cal.4th 346, 372 [prosecution's burden of proving every element of the crime is not relieved by the defendant's tactical decision not to contest one of those elements].)

We disagree with the Attorney General's argument that by entering into the stipulation the defendants forfeited their right to challenge the sufficiency of the evidence of damage. The Attorney General analogizes to cases holding that a defendant's guilty plea admits all elements of the offense and the defendant thereafter cannot challenge the sufficiency of the evidence as to one of those elements. (E.g. People v. Hunter (2002) 100 Cal.App.4th 37, 42.) The defendants in this case did not plead guilty nor did they stipulate to an element of the crime. They stipulated to a series of facts including that "graffiti was tagged on the . . . properties" of certain individuals and the city and "that the damage caused was over $400." The court did not instruct the jury that the amount of damage had been proven by stipulation. Instead, it instructed the jury: "If you find a defendant guilty of vandalism in Counts 1 and 3 through 7, you must then decide whether the People have proved that the amount of damage caused by the vandalism in each count was $400 or more within the meaning of Penal Code 594 (b) (1)."

DISPOSITION

The sentences on the vandalism counts are vacated and the cause is remanded to the trial court for resentencing those counts to the county jail or, in the court's discretion, to state prison under section 186.22, subdivision (d). In all other respects the judgments are affirmed.

MALLANO, P. J. and CHANEY, J., concurs.