In re Thomas C. CA4/1 ( 2015 )

Filed 4/20/15 In re Thomas C. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re THOMAS C., a Person Coming
Under the Juvenile Court Law.
D065549
THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. J230661)
v.
THOMAS C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Browder A.
Willis, Judge. Affirmed.
Charles R. Khoury, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P.
Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Minor Defendant Thomas C. (Thomas) admitted to five counts of graffiti
vandalism. The juvenile court ordered him to pay $10,339.26 in restitution, to reimburse
the City of San Marcos for all resultant damage. On appeal, Thomas contends the
juvenile court abused its discretion by ordering an amount of restitution that does not
reflect the actual costs incurred to remove the graffiti. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Between September 2011 and January 2012, an unknown person wrote the word
"Maniak" on public property throughout the City of San Marcos (City). On January 10,
2012, a detective went to the residence of Lucia C. (Lucia), to discuss Thomas, her then-
13-year-old runaway son, and obtain information for a missing person's report. While
there, the detective asked Lucia whether Thomas was involved in tagging. Lucia showed
the detective a mirror tagged with the word "Maniak." The detective took photographs of
the mirror.
At the police station, the detective searched through City's "Graffiti Tracker"
computer program and discovered 39 different incidents of vandalism featuring the word
"Maniak." Two days later, the detective and an assisting deputy returned to Lucia's
residence and Lucia consented to a search of Thomas's room. There, they found various
items, including a trash can, folder, and crayon bank, tagged with the word "Maniak,"
and immediately recognized their similarity to the photographs from the Graffiti Tracker
database.
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On January 15, 2012, the detective arrested Thomas for vandalism. On
January 18, 2012, the San Diego County District Attorney filed a petition under Welfare
and Institutions Code1 section 602 alleging Thomas committed 30 counts of
misdemeanor vandalism in violation of Penal Code section 594, subdivisions (a) and
(b)(2)(A). Thomas admitted to five of the vandalism allegations. The juvenile court
dismissed the remaining allegations with a Harvey2 waiver, allowing the court to
consider the dismissed charges when setting the restitution amount.
City submitted a victim report requesting $10,339.26 for damage to walls,
benches, doors, electrical boxes, sidewalks, and fences resulting from Thomas's actions.
At the restitution hearing on January 8, 2014, in support of the request for $10,339.26, the
People submitted City's victim report, which included the Graffiti Tracker photographs.
Next to each photograph, City had listed: (1) moniker; (2) incident number; (3) square
footage; (4) surface type; (5) removal date; (6) removal method; and (7) type of camera
used to document the graffiti. The People also submitted City's cost matrix, which
categorized and assessed the expenses generally incurred, per square foot, to clean up
graffiti.
By this matrix, City estimated it would spend approximately $267.40 to remove
graffiti from an area spanning less than 10 square feet. The calculation included: $4.45
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise specified.
2 People v. Harvey (1979) 25 Cal. 3d 754.
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for abatement supplies, such as removal chemicals; $15.00 for miscellaneous supplies,
such as scrub pads, wire brushes, towels, scrapers, buckets, spray bottles, paint brushes,
rollers, trays, and tints; $35.00 for truck expenses; $37.95 for field personnel; and
$175.00 for an administrative fee, which accounted for the cost of supervision,
administrative support, cell phones, radio charges, computer equipment, and office
supplies. The cost matrix also estimated increased costs for increased square footage.
The court found the calculations to be fair and rational and ordered Thomas to pay
$10,339.26 in restitution to City. On March 5, 2014, Thomas timely filed a notice of
appeal. Thomas contends the trial court abused its discretion by ordering a restitution
amount that does not reflect the actual costs incurred by City to remove the graffiti.
DISCUSSION
I
Standard of Review
A juvenile court's restitution order is reviewed for abuse of discretion. (In re
Johnny M. (2002) 100 Cal. App. 4th 1128, 1132.) "No abuse of discretion will be found
where there is a rational and factual basis for the amount of restitution ordered. ' "[T]he
standard of proof at a restitution hearing is by a preponderance of the evidence, not proof
beyond a reasonable doubt." ' " (People v. Gemelli (2008) 161 Cal. App. 4th 1539, 1542,
quoting People v. Keichler (2005) 129 Cal. App. 4th 1039, 1045.)
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II
The Restitution Amount
Section 730.6 authorizes the juvenile court to order a minor to pay restitution to
any victims suffering economic loss as a result of the minor's conduct. (§ 730.6, subd.
(a)(2)(B).) It further provides the restitution must be "of a dollar amount sufficient to
fully reimburse the victim or victims for all determined economic losses incurred as the
result of the minor's conduct . . . ." (§ 730.6, subd. (h)(l).) For property damage, that
amount is "the replacement cost of like property, or the actual cost of repairing the
property when repair is possible." (§ 730.6, subd. (h)(1)(A).)
"Judges have broad discretion in fixing the amount of restitution, and 'the court
may use any rational method of fixing the amount of restitution, provided it is reasonably
calculated to make the victim whole, and provided it is consistent with the purpose of
rehabilitation.' " (In re Dina V. (2007) 151 Cal. App. 4th 486, 489, quoting In re Brittany
L. (2002) 99 Cal. App. 4th 1381, 1391-1392.) This means that although "the amount of
restitution cannot be arbitrary or capricious, '[t]here is no requirement the restitution
order be limited to the exact amount of the loss [for] which the defendant is actually
found culpable, nor is there any requirement the order reflect the amount of damages that
might be recoverable in a civil action.' " (People v. Ortiz (1997) 53 Cal. App. 4th 791,
800, quoting People v. Carbajal (1995) 10 Cal. 4th 1114, 1121.)
Here, City reported Thomas's involvement in 39 separate incidents of vandalism.
The People then charged Thomas with 30 counts of misdemeanor vandalism at less than
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$400 per violation. The People used City's Graffiti Tracker, which included photographs,
and listed: (1) moniker; (2) incident number; (3) square footage; (4) surface type; (5)
removal date; (6) removal method; and (7) type of camera used to document the graffiti.
The People also submitted City's cost matrix, which categorized and assessed the
expenses generally incurred, per square foot, to clean up graffiti, and estimated City spent
approximately $267.40 per violation. City calculated removal costs to be $10,339.26.
At $400 per violation, Thomas would owe City restitution in the amount of
$12,000. At $267.40 per violation, Thomas would owe City restitution in the amount of
$8,022. The actual restitution amount falls almost squarely in between these
estimations.3 Given the fact the trial court considered the size, extent, and type of graffiti
involved, including the average cost per square foot to paint over or otherwise restore the
defaced surfaces, and the trial court retains broad discretion under section 730.6 to
estimate the costs necessary both to repair the damage caused and to rehabilitate the
minor, the trial court did not abuse its discretion when it ordered Thomas to pay
restitution in the amount of $10,339.26. (See Luis M. v. Superior Court (2014) 59
Cal. 4th 300, 310 [explaining "the trial court retains broad discretion under section 730.6
to estimate the material, equipment, and labor costs necessary to repair the damage
caused by a discrete act of graffiti," and to use photographs that reflect the size, extent,
and type of graffiti involved, witnesses who estimate the average cost per square foot, or
3 The precise middle between $12,000 and $8,022 is $10,011, a $328.26 difference
from the restitution order.
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business records that establish the time spent and materials used to provide a rational
basis for estimating costs].)
DISPOSITION
The order is affirmed.
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
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