In re Kevin A. CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. J235589
- Trial judge
- Roderick W. Shelton
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Richard D. Huffman, Sr. (author), McINTYRE
Analysis
The trial court ordered the minor to pay $1,399.50 in restitution to the City of San Diego for repairing gang graffiti on both public and private properties, finding the City a victim under Welfare and Institutions Code section 730.6. The Court of Appeal affirmed, holding the trial court did not abuse its discretion in determining the City incurred an economic loss by repairing privately owned property to remove public blight.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Ordering restitution to the City of San Diego for repair of privately owned property (specifically the fence at 2345 and 2347 Comstock Street).“We read Welfare and Institutions Code section 730.6, subdivision (j)(2) to specifically authorize reimbursement to public entities that undertake, in the public interest, to repair the damage done by this pernicious form of vandalism.” | abuse of discretion | correct | agree with court agree with court |
Authorities
- relied: People v. Gemelli (2008) 161 Cal.App.4th 1539 — Standard of proof for restitution is preponderance of evidence; restitution orders reviewed for abuse of discretion.
- relied: People v. Weatherton (2015) 238 Cal.App.4th 676 — No specific manner of proof is required for restitution; burden shifts to defendant once prosecution establishes loss.
- relied: People v. Sy (2014) 223 Cal.App.4th 44 — Defendant must come forward with contrary information once prosecution establishes amount of loss and entitlement to restitution.
- relied: In re Johnny M. (2002) 100 Cal.App.4th 1128 — Restitution orders are reviewed for abuse of discretion and will not be overturned if there is a rational basis.
- relied: People v. Keichler (2005) 129 Cal.App.4th 1039 — Restitution orders are reviewed for abuse of discretion.
- relied: Luis M. v. Superior Court (2014) 59 Cal.4th 300 — Supports the interpretation that public entities may be reimbursed for repairing graffiti damage in the public interest.
The appellate opinion: sound — sound
How this analysis was made · dispute it
unusual dispositionThe juvenile court declared Kevin A. a ward after he admitted felony vandalism (gang graffiti) and ordered him jointly and severally liable for $1,399.50 in restitution to the City of San Diego, including $690 for repairing a graffiti-covered fence on two privately owned Comstock Street parcels, finding the City was a 'victim' because it had undertaken to restore the property. The Court of Appeal affirmed, holding that Welfare and Institutions Code section 730.6, subdivision (j)(2) expressly authorizes restitution to a governmental entity responsible for repairing public or privately owned property defaced by graffiti, and that the juvenile court did not abuse its discretion.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Restitution order of $690 to the City of San Diego for repair of graffiti on privately owned fence at 2345 and 2347 Comstock Street, based on finding that the City was a 'victim' under Welfare and Institutions Code section 730.6, subdivision (j)(2).“We cannot say the City of San Diego was a mere volunteer in repairing the property in question here.” | abuse of discretion | correct | agree with court Section 730.6(j)(2), as quoted in the opinion, defines a victim to include a governmental entity 'responsible for repairing, replacing, or restoring public or privately owned property that has been defaced by graffiti' that has sustained an economic loss. The statutory text squarely covers privately owned property, and the City presented a cost statement showing it actually performed the repair and incurred the cost. Whether the City qualifies under the statute is arguably a legal question reviewable de novo, but the result is the same under either standard because the statute's plain language resolves it. The Minor did not challenge the reasonableness of the costs or the burden shifting, so the only contested issue was correctly decided. |
Finding that the City carried its initial burden with its cost statement and that the burden shifted to the Minor to disprove the amounts.“Defense counsel did not challenge the burden shifting, nor does the Minor challenge it on appeal.” | unclear | not reached | agree with court The appellate court noted the issue was not raised below or on appeal and did not review it. The burden-shifting framework described is consistent with Gemelli, Sy, and Weatherton as cited, so no apparent error exists, but the court made no ruling on it. |
Authorities
- relied: People v. Gemelli (2008) 161 Cal.App.4th 1539 — Standard of proof at a restitution hearing is preponderance of the evidence; no specific manner of proof is required and the court may rely on the victim's statement of loss, after which the burden shifts to the defendant to disprove the amount.
- relied: People v. Weatherton (2015) 238 Cal.App.4th 676 — No specific manner of proof of restitution amount is required; once the prosecution establishes the loss, the defendant must come forward with contrary information.
- relied: People v. Sy (2014) 223 Cal.App.4th 44 — Once the prosecution makes a prima facie showing of the amount of loss, the burden shifts to the defendant to demonstrate the amount is other than claimed.
- relied: In re Johnny M. (2002) 100 Cal.App.4th 1128 — Juvenile restitution orders are reviewed for abuse of discretion and will be upheld where there is a rational and factual basis for the amount.
- relied: People v. Keichler (2005) 129 Cal.App.4th 1039 — Restitution orders are reviewed for abuse of discretion and will not be overturned where a rational basis supports them.
- relied: Luis M. v. Superior Court (2014) 59 Cal.4th 300 — Section 730.6, subdivision (j)(2) authorizes restitution to a governmental entity for its actual costs of repairing graffiti damage caused by the minor, though the amount must be tied to actual loss rather than generalized averages.
The appellate opinion: sound — The opinion correctly reads the plain language of section 730.6(j)(2), which expressly includes governmental entities that repair 'privately owned property' defaced by graffiti, and applies the settled burden-shifting and abuse-of-discretion framework from Gemelli, Sy, Weatherton, Johnny M., and Keichler. It confines itself to the single issue raised and does not need to reach the Luis M. actual-cost question because the Minor conceded the amounts, though it could have been more explicit that the statutory 'victim' question is one of law.
Opinion
Filed 1/28/16 In re Kevin A. 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 KEVIN A., a Person Coming Under the Juvenile Court Law. D067780 THE PEOPLE, Plaintiff and Respondent, (Super. Ct. No. J235589)
v. KEVIN A., Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Roderick W.
Shelton, Judge. Affirmed.
Lindsey M. Ball, 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, Arlene A. Sevidal and Allison V.
Hawley, Deputy Attorneys General, for Plaintiff and Respondent. Kevin A. (the Minor) was charged in a petition filed in juvenile court with one count of felony vandalism (Pen. Code, § 594, subd. (a)(b)(1)), and that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
The Minor admitted the vandalism count and the gang allegation was dismissed.
The Minor was declared a ward of the court and placed on probation for one year.
The court found the Minor and two others were jointly and severally liable for $1,399.50 in restitution to the City of San Diego for the costs of removal of the gang graffiti.
The Minor appeals contending the trial court erred in setting the amount of restitution. He contends that several of the properties, which he defaced, were not owned by the City and thus the City has not shown it was a victim that incurred an economic loss as to the privately owned properties. We agree with the juvenile court that the City has shown it will repair both public and private property in order to eliminate the gang graffiti from public view. Accordingly, we will find the court properly exercised its discretion in setting the amount of restitution.
STATEMENT OF FACTS
The record shows that the Minor and two others defaced properties on Comstock Street, Fulton Street and Burton Street in the City of San Diego, in order to "work for the hood."
DISCUSSION
The Minor contends the juvenile court erred in ordering $690 in restitution to the City for repair of damage to a fence on properties at 2345 and 2347 Comstock Street since those properties are privately owned.
2 A. Background The juvenile court held an evidentiary hearing to determine the amount of restitution to be ordered in this case. In that hearing the court received the City's cost statement for repair of all six properties which were defaced by the Minor and his cohorts. The court found that the City had carried its burden to prove the validity of the costs and that the burden shifted to the Minor to disprove the amounts. Defense counsel did not challenge the burden shifting, nor does the Minor challenge it on appeal.
In response to the City's evidence, the Minor offered proof that the fences for 2345 and 2347 Comstock were not owned by the City, and contended that the City was not responsible for repairing the damage.
After reviewing the submitted materials the court rejected the Minor's contentions.
The court said, in part: "In this particular instance, the City of San Diego has entered into a number of different policies and agreements to restore the community after acts of vandalism have been committed. . . . [¶] . . . [¶] . . . [The City is] actively pursuing the restoration of property when it has been defaced by graffiti. And while one or more of these pieces of property [may be] privately owned, such as 2345 and 2347 . . . the [C]ity had an interest in restoring that property. They did, so . . . they have incurred a loss."
The Minor does not challenge the cost of repair of the graffiti that he and his accomplices placed on the Comstock Street property. He only challenges whether the City of San Diego may be reimbursed for the costs it incurred in repairing the damage.
3 B. Legal Principles Where a juvenile has caused damage by defacing property with graffiti, the court may order the juvenile to pay restitution. Welfare and Institutions Code section 730.6, subdivision (j)(2) provides in part that a victim, entitled to restitution includes: "[a]
governmental entity that is responsible for repairing, replacing, or restoring public or privately owned property that has been defaced by graffiti . . . and has sustained an economic loss."
The standard of proof at a restitution hearing is by a preponderance of the evidence. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 (Gemelli).) The court may consider probation reports or the property owner's statements of the amount of the loss. No specific manner of proof is required either by statute or case law. (Ibid.; People v. Weatherton (2015) 238 Cal.App.4th 676, 684.) Once the prosecution has established the amount of loss and entitlement to restitution, the defendant must come forward with contrary information. (People v. Sy (2014) 223 Cal.App.4th 44, 63; Weatherton, supra, at p. 684.)
Restitution orders are reviewed for abuse of discretion, and where there is a rational basis for the order, it will not be overturned on appeal. (In re Johnny M. (2002)
100 Cal.App.4th 1128, 1132; People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
C. Analysis As we have noted, the Minor does not challenge his responsibility for the damage or that the costs for repair are unreasonable. His only challenge is that the City was not a 4 victim as to two parcels of property because they were privately owned. Accordingly, we will only address the juvenile court's finding that the City was a victim.
The evidence, viewed in the light most favorable to the juvenile court shows the City did take responsibility for the repair of damage to the two challenged properties.
The properties shared a fence, which had been defaced by graffiti. The court found the City had a valid interest in removing the blight, which was visible to the public.
It does not take great scholarship to conclude that gang graffiti, scrawled over public and private property, can have an adverse impact on a community. Walls, fences, road signs, and even houses defaced by vandals marking their territory has an adverse impact on property values and upon the image of the community. We cannot say the City of San Diego was a mere volunteer in repairing the property in question here. The juvenile court found, and we agree, the City has an interest in removing the blight from public view in order to maintain the quality of life in its communities.
We read Welfare and Institutions Code section 730.6, subdivision (j)(2) to specifically authorize reimbursement to public entities that undertake, in the public interest, to repair the damage done by this pernicious form of vandalism. (See Luis M. v. Superior Court (2014) 59 Cal.4th 300, 309.) The juvenile court did not abuse its discretion in ordering the Minor to reimburse the city for the repair of the two Comstock Street properties. (Gemelli, supra, 161 Cal.App.4th at p. 1542.)
5 DISPOSITION
The order is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McINTYRE, J.
PRAGER, J.* * Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 6
Cites, in this corpus
- People v. Weatherton A140186 · 2015-07-09
- Luis M. v. Superior Court S207314 · 2014-06-19
- People v. Vo Nghia Sy D061858; D062163 · 2014-01-21
- People v. Gemelli E043682 · 2008-04-18
- People v. KEICHLER C047014 · 2005-05-26
- People v. Johnny M. B154810 · 2002-08-05