In re Thomas C. CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. J230661
- Trial judge
- Browder A. Willis
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Alex C. McDonald (author), Gilbert Nares, Patricia D. Benke
Analysis
The juvenile court ordered the minor defendant to pay $10,339.26 in restitution to the City of San Marcos for graffiti vandalism, finding the amount supported by a rational cost matrix and photographic evidence. The Court of Appeal affirmed the order, holding that the trial court did not abuse its discretion in determining the restitution amount based on the evidence presented.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order requiring defendant to pay $10,339.26 in restitution to the City of San Marcos.“the trial court did not abuse its discretion when it ordered Thomas to pay restitution in the amount of $10,339.26.” | abuse of discretion | not reached | agree with court The appellate court affirmed the trial court's restitution order, finding that the amount was supported by a rational basis (the City's cost matrix and photographs) and fell within the broad discretion granted to juvenile courts under Welfare and Institutions Code section 730.6 to estimate repair costs. |
Authorities
- relied: In re Johnny M. (2002) 100 Cal.App.4th 1128 — A juvenile court's restitution order is reviewed for abuse of discretion.
- relied: People v. Gemelli (2008) 161 Cal.App.4th 1539 — The standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.
- relied: People v. Keichler (2005) 129 Cal.App.4th 1039 — The standard of proof at a restitution hearing is by a preponderance of the evidence.
- relied: In re Dina V. (2007) 151 Cal.App.4th 486 — Judges have broad discretion in fixing the amount of restitution, provided it is reasonably calculated to make the victim whole and consistent with rehabilitation.
- relied: In re Brittany L. (2002) 99 Cal.App.4th 1381 — The court may use any rational method of fixing the amount of restitution.
- relied: People v. Ortiz (1997) 53 Cal.App.4th 791 — There is no requirement that the restitution order be limited to the exact amount of loss for which the defendant is actually found culpable.
- relied: People v. Carbajal (1995) 10 Cal.4th 1114 — There is no requirement that the restitution order reflect the amount of damages that might be recoverable in a civil action.
- relied: Luis M. v. Superior Court (2014) 59 Cal.4th 300 — The trial court retains broad discretion under section 730.6 to estimate material, equipment, and labor costs necessary to repair damage caused by graffiti, using photographs, witnesses, or business records.
The appellate opinion: sound — The opinion is sound because it correctly applies the abuse of discretion standard and relies on binding California Supreme Court authority (Luis M.) to support the trial court's use of a cost matrix and photographic evidence to estimate restitution. The court adequately addresses the appellant's argument that the amount did not reflect actual costs by noting the broad discretion allowed for estimation methods.
The juvenile court, after Thomas C. admitted five counts of misdemeanor graffiti vandalism with a Harvey waiver covering the dismissed counts, ordered him to pay $10,339.26 in victim restitution to the City of San Marcos based on the City's Graffiti Tracker victim report and per-square-foot cost matrix. The Court of Appeal held the order was not an abuse of discretion because the court used a rational method tied to the size, surface type, and removal method of each tagged location, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order under Welfare and Institutions Code section 730.6 requiring the minor to pay $10,339.26 in restitution to the City of San Marcos for graffiti removal costs“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.” | abuse of discretion | correct | agree with court Luis M. v. Superior Court permits a juvenile court to estimate graffiti repair costs from photographs showing size and type of graffiti combined with evidence of average cost per square foot, and the City's victim report here listed square footage, surface type, and removal method for each of the 39 incidents along with a cost matrix, which is the kind of incident-specific evidence Luis M. approved. The result is therefore defensible under the deferential standard and the preponderance burden. The opinion's supplemental reasoning is weak: comparing the award to 30 counts multiplied by the $400 misdemeanor threshold treats a charging threshold as a measure of loss, and the court never addressed whether the $175 per-incident administrative fee (supervision, cell phones, computer equipment, office supplies) is a cost of repairing the property under section 730.6, subdivision (h)(1)(A) or an overhead charge of the kind Luis M. cautioned against. Because the core holding rests on authority that supports it, I agree with the affirmance despite these gaps. |
Authorities
- relied: Luis M. v. Superior Court (2014) 59 Cal.4th 300 — Under section 730.6 a juvenile court may estimate material, equipment, and labor costs to repair a discrete act of graffiti using photographs showing size, extent, and type of graffiti, testimony on average cost per square foot, or business records, but the award must be tied to the damage caused by the minor's conduct rather than generalized citywide abatement averages.
- relied: In re Johnny M. (2002) 100 Cal.App.4th 1128 — A juvenile court's restitution order is reviewed for abuse of discretion.
- relied: People v. Gemelli (2008) 161 Cal.App.4th 1539 — No abuse of discretion is found where there is a rational and factual basis for the restitution amount; the standard of proof at a restitution hearing is preponderance of the evidence.
- relied: People v. Keichler (2005) 129 Cal.App.4th 1039 — The standard of proof at a restitution hearing is preponderance of the evidence, not proof beyond a reasonable doubt.
- relied: In re Dina V. (2007) 151 Cal.App.4th 486 — Judges have broad discretion in fixing restitution and may use any rational method reasonably calculated to make the victim whole and consistent with rehabilitation.
- relied: In re Brittany L. (2002) 99 Cal.App.4th 1381 — The court may use any rational method of fixing restitution provided it is reasonably calculated to make the victim whole and consistent with the purpose of rehabilitation.
- relied: People v. Ortiz (1997) 53 Cal.App.4th 791 — Restitution cannot be arbitrary or capricious, but need not be limited to the exact loss for which the defendant was found culpable or to damages recoverable in a civil action.
- relied: People v. Carbajal (1995) 10 Cal.4th 1114 — A restitution order need not be limited to the exact amount of loss for which the defendant is actually found culpable nor mirror civil damages.
- relied: People v. Harvey (1979) 25 Cal.3d 754 — Source of the Harvey waiver permitting a sentencing court to consider dismissed counts when fixing restitution.
The appellate opinion: sound with gaps — The court correctly identified the abuse-of-discretion standard and the governing rule from Luis M. that incident-specific photographs plus per-square-foot cost data supply a rational basis for graffiti restitution, and the City's victim report fit that description. It skipped the minor's implicit challenge to the $175 per-incident administrative fee as a non-repair overhead cost and padded its analysis with an irrelevant comparison to the $400 misdemeanor threshold multiplied by the number of counts.
Opinion
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 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.
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.
2 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.
3 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.)
4 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 5 $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.
6 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.
Cites, in this corpus
- Luis M. v. Superior Court S207314 · 2014-06-19
- People v. Gemelli E043682 · 2008-04-18
- People v. KEICHLER C047014 · 2005-05-26
- People v. Johnny M. B154810 · 2002-08-05
- People v. Brittany L. B154167 · 2002-07-10
- People v. Ortiz B098805 · 1997-03-20
- People v. Carbajal S036146 · 1995-08-14
- People v. Harvey Crim 21022 · 1979-11-27