In re A.C.
Filed 1/17/13 In
re A.C. CA2/2
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re A. C., a Person Coming Under the
Juvenile Court Law.
B235841
(Los Angeles County
Super. Ct. No. MJ20022)
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff
and Respondent,
v.
A. C.,
Defendant
and Appellant.
APPEAL
from a judgment of the Superior Court of
County. Robin Kessler,
Judge. Affirmed.
Laini
Millar Melnick, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and
Toni R. Johns Estaville, Deputy Attorneys General for Plaintiff and Respondent.
Appellant
A. C. (minor) appeals from a dispositional
order of the juvenile court, challenging the amount of restitution he was
ordered to pay for graffiti removal. We
affirm the judgment.
The
juvenile court declared minor a ward of the court after sustaining a petition
filed pursuant to Welfare and Institutions Code section 602,
committed felony vandalism in violation of Penal Code section 594, subdivision
(a), and misdemeanor possession of tools to commit vandalism or graffiti, in
violation of Penal Code section 594.2, subdivision (a).
After
the juvenile court heard evidence that minor had unlawfully marked several
areas in the City of Lancaster (City) with graffiti, the court considered evidence of the City’s
mitigation costs. Crime Prevention
Officer Marleen Navarro testified that the City had developed a “graffiti cost
model†to be used by the City to estimate the cost of graffiti removal for
purposes of restitution orders. The cost
model is based upon past clean-up efforts, including actual past expenditures
for such items as labor, materials, equipment, fuel, and traffic control. The model divides the total annual cost by
the number of graffiti removal efforts per year, resulting in an estimated cost
of $431.32 per removal. As there were
four instances of graffiti in this case, the City requested restitution in the
sum of $1,725.28.
The
juvenile court found true the allegations and sustained the petition. The court placed minor home on probation
under various terms and conditions, including an order that minor pay $1,500 in
restitution to the City. Minor filed a
timely notice of appeal.
Minor
contends that the trial court abused its discretion in setting the amount of
restitution because the amount was not supported by substantial evidence. He argues that the evidence was insufficient
because the prosecution relied upon the City’s cost model rather than evidence
of the exact amount spent or incurred in the graffiti removal. Minor also contends that the court’s error
resulted in a denial of his due process guaranteed by the United States
Constitution.
name="_ftnref2" title="">[2]
We
review the juvenile court’s restitution order for abuse of discretion. (In re
Johnny M. (2002) 100 Cal.App.4th 1128, 1132 (Johnny M.).) However, our
review is de novo when the issue turns on the interpretation of a
statute. (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016 (
court order is reviewed under the same standard of review applicable in an
adult criminal appeal. (In re Ryan N.
(2001) 92 Cal.App.4th 1359, 1371.) In
reviewing the evidence to support a restitution order, our authority begins and
ends with a determination whether there is any substantial evidence to support
the court’s factual findings; we do not reweigh the evidence. (People v. Millard (2009) 175 Cal.App.4th 7, 27.)
‘“A
victim’s restitution right is to be broadly and liberally construed.’ [Citation.]â€
(Johnny M.,
also In re G.V. (2008) 167
Cal.App.4th 1244, 1250.) Subdivision (h)
of section 730.6 provides in relevant part that the juvenile “court shall order
full restitution unless it finds compelling and extraordinary reasons for not
doing so, and states them on the record. . . . A restitution order
. . . shall 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 . . . .â€
Minor
contends that section 730.6, subdivision (h)(1), limits restitution to the
exact amount a victim has expended or incurred to repair the damage because it
provides that “[t]he value of . . . damaged property shall be
. . . the actual cost of repairing the
property
when repair is possible.†Contrary to
minor’s contention, exact and actual are not synonymous in this context; so
long as the amount is not “‘arbitrary or capricious, “there is no requirement
the restitution order be limited to the exact amount of the loss
. . . .â€
[Citation.]’ [¶] Indeed, 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 doing so
‘“‘[s]entencing judges are given virtually unlimited discretion as to the kind
of information they can consider and the source from whence it comes.’ . . .†.
. . .’†(In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391-1392, fns.
omitted.)
Minor’s
reliance on Anthony M.,
misplaced. There, the juvenile court had
ordered restitution of amounts paid to a medical provider, more than $1 million
although the medical provider had accepted a lesser amount as payment in full
from Medi-Cal. (Id. at p. 1018.) Because the
provider was precluded by law from seeking reimbursement from the victim, the
victim could not be said to have incurred those amounts. (Ibid.) There are no such facts here.
Minor
argues that the City’s cost model was inherently unreliable and its use
arbitrary because it did not reflect the actual cost specifically attributed to
the damage caused by minor in this case.
We reject minor’s contention that an estimate of costs can never support
a restitution award, as well as the suggestion in such an argument that the
victim must make the repairs before submitting evidence of the cost. Estimates are often the basis of restitution
awards. (See, e.g., In re Alexander A. (2011) 192 Cal.App.4th 847, 851-852 [garage
estimate for repairs to vandalized automobile]; People v. Phu (2009) 179 Cal.App.4th 280, 284-285 [estimated value
of electrical power stolen by defendant for a marijuana growing operation
based on “best information†available];
value of counterfeit tapes].)
Moreover,
minor did not object to the cost model or to Officer Navarro’s testimony, but
merely argued that the cost model was insufficient evidence of the City’s exact
expenditure to remove minor’s graffiti.
We agree with respondent that the cost model was a rational method to
determine the City’s economic loss in removing the graffiti. A repair estimate based upon similar past
expenditures and on such components as labor and materials known to have been a
part of those expenditures is not arbitrary, as minor contends. Rather, it is factual and rational, and
consistent with the requirements. (See
Officer
Navarro testified that the cost model was an estimate of the actual cost of
cleaning minor’s graffiti, based upon the actual costs of past clean-ups. We conclude that the City’s analysis was a
sufficient prima facie showing of the actual cost to remove the graffiti. The burden then shifted to minor to
demonstrate that the City’s cost was some other amount. (See People
v. Gemelli (2008) 161 Cal.App.4th 1539,1543; In re S.S. (1995) 37 Cal.App.4th 543, 546-547.)
evidence to refute the City’s cost estimate, he did not meet his burden.
We
conclude that the juvenile court did not abuse its discretion in accepting the
City’s prima facie showing. Because the
trial court did not err, we do not reach minor’s constitutional claim. (See People
v. Partida, supra, 37 Cal.4th at
p. 439.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_________________________,
J.
CHAVEZ
We
concur:
___________________________,
P. J.
BOREN
___________________________,
J.
DOI TODD
Institutions Code, unless otherwise indicated.
Officer Navarro’s testimony of the cost model and make a federal due process claim in the juvenile
court. Thus the claim may be considered
only as “an additional legal consequence of the asserted [state] error
. . .†if at all. (
438-439.)
