In re C.C.

















Filed 1/23/13
In re C.C. CA4/2















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

In re C.C., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. C.C., Defendant and Appellant.	E055815 (Super.Ct.No. INJ1100347) OPINION

APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Lawrence Best, Temporary
Judge. (Pursuant to Cal. Const., art.
VI, § 21.) Affirmed.

Andrea
S. Bitar, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Garrett Beaumont and
Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

On
June 7, 2011, the Riverside County District Attorney filed a Welfare and
Institutions Code section 602 petition, alleging that appellant and defendant
C.C. (minor) committed battery. (Pen. Code, § 242.) On June 22, 2011, the district attorney filed
a second petition alleging that minor committed misdemeanor vandalism, causing
damage of $400 or more. (Pen. Code, §
594, subd. (b).) Minor admitted the
allegations in both petitions. The
juvenile court placed him on probation, pursuant to Welfare and Institutions
Code section 725, subdivision (a), in his mother’s home. One of his probation conditions prohibited
him from possessing graffiti/scribing instruments, including ink markers. Subsequently, the district attorney filed a
third petition alleging that minor possessed a felt tip marker or other marking
substance with the intent to commit vandalism and graffiti. (Pen. Code, § 594.2.)href="#_ftn1" name="_ftnref1" title="">^[1] After a contested hearing, the court found
the allegation true and placed minor on probation for six months and continued
him in his mother’s custody. The court
ordered him to pay several restitution fines, including a $500 fine for the
damage done to a mailbox in connection with the June 22, 2011 petition.

On appeal, minor
contends: (1) there was insufficient
evidence to support the court’s true finding that he possessed permanent
markers with the intent to commit vandalism or graffiti; and (2) there was
insufficient evidence to support the $500 restitution fine. We affirm.

FACTUAL
BACKGROUND

>Prosecution Evidence

At
the contested jurisdictional hearing,
Officer Chris Trueblood testified that on the afternoon of August 1, 2011, he
was dispatched to a park. He was advised
that a passerby had reported seeing juveniles tagging in that area. When he arrived at the park, he noticed a
group of about five juveniles hanging around the tennis courts. He observed what appeared to be fresh tagging
on the wall and on the ground of the tennis court, almost directly next to
where the juveniles were sitting. He
also noticed five to seven permanent markers on the ground. The markers were various colors, including
black. The fresh tagging was in black
marker. Officer Trueblood approached the
group and heard one of them yell, “Cops.”
He then noticed minor attempt to leave the tennis courts on a
scooter. He yelled at minor to stop, and
minor complied. Officer Trueblood and
his partner lined the juveniles up against the wall and searched them. Officer Trueblood’s partner searched the backpack
that minor had on him. Inside the
backpack, he found numerous permanent markers of various colors, including
black, that were similar to the type found on the ground.

>Defense Evidence

On
cross-examination, Officer Trueblood confirmed that minor did not have any
markers in his hands, just in his backpack.
Minor’s mother testified and said that minor regularly carried art
supplies with him, including markers, and that he was in an art class at
school. She also said he was not allowed
to have permanent markers in his possession under the terms of his probation.

ANALYSIS

I. There Was Sufficient Evidence to Support
the Court’s True Finding

Minor
contends there was insufficient evidence to support the court’s true finding
that he possessed permanent markers with the intent to commit vandalism or
graffiti. We disagree.

A.
Standard of
Review

“[I]n
considering a claim of insufficiency of the evidence, appellant has a heavy
burden in demonstrating that the evidence does not support the juvenile court
findings. [Citation.] An appellate court must review the whole
record in the light most favorable to the judgment in order to determine
whether it discloses substantial evidence that a reasonable trier of fact could
find the essential elements of the crime beyond a reasonable doubt.” (In re
Ricky T. (2001) 87 Cal.App.4th 1132, 1136 (Ricky T.).)

“Evidence
of a defendant’s state of mind is almost inevitably circumstantial, but
circumstantial evidence is as sufficient as direct evidence to support a
conviction. [Citations.] ‘Whether the evidence presented at trial is
direct or circumstantial, . . . the relevant inquiry on
appeal remains whether any reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt.’
[Citation.]” (>People v. Bloom (1989) 48 Cal.3d 1194,
1208.)

B. The
Evidence Was Sufficient

A person violates
section 594.2, subdivision (a), by possessing “a felt tip marker, or any other
marking substance with the intent to commit vandalism or graffiti.” Minor claims that there was insufficient
evidence of his intent to vandalize, and that the prosecution’s argument
impermissibly hinged on his mere presence at the scene. We disagree.

The
circumstantial evidence in this case was sufficient to support the court’s
finding that minor possessed the permanent markers in his backpack with the
intent to commit graffiti. The police
responded to a report that someone saw some juveniles creating graffiti in a
park. The police found minor and four
other juveniles sitting next to what appeared to be fresh graffiti drawn with
black permanent markers on the wall and ground of the tennis court. There were several permanent markers on the
ground. The police also found permanent
markers, including black ones, inside minor’s backpack, and they were similar
to the type found on the ground.
Moreover, when the police approached the group, one of them yelled,
“Cops,” and minor immediately tried to escape the scene. Although minor’s mother testified that he
often carried art supplies with him, we note that he was not allowed to have
permanent markers in his possession under the terms of his probation in another
case.

Viewing
the record in the light most favorable to the judgment, as we must, we conclude
that the evidence was sufficient to support the court’s true finding. (See Ricky
T., supra, 87 Cal.App.4th at p.
1136.)

II. The Court Properly Ordered Minor to Pay
Victim Restitution

Minor
argues the court abused its discretion in ordering $500 in victim restitution,
since there was insufficient evidence to support that amount. We find no abuse of discretion.

A. Relevant
Background

The
court held a disposition hearing on minor’s three petitions. With regard to minor’s June 22, 2011
petition, he had previously admitted that he and his friends drove around a
neighborhood hitting mailboxes with a sledgehammer. According to the police report, 14 mailboxes
were damaged. The probation report
stated that one of the victims, William S. (the victim), submitted “a request
for $500.00 for damages.” Defense
counsel objected that there were no receipts to support the amount
claimed. After some discussion, defense
counsel stated that he and the prosecutor would meet informally for the
prosecutor to provide some substantiation for the claim. The court responded that if there was a
reason to contest the amount, it would have no problem setting another hearing
to discuss it. Noting the victim’s
claim, the court ordered the $500 amount, subject to further review. No further review was undertaken.

B. Standard
of Review

The
standard of review of a restitution order is abuse of discretion. (People
v. Keichler (2005) 129 Cal.App.4th 1039, 1045 (Keichler).)

C. The
Court Did Not Abuse Its Discretion

Welfare
and Institutions Code section 730.6, subdivision (a), states that “a victim of
conduct for which a minor is found to be a person described in Section 602 who
incurs any economic loss as a result of the minor’s conduct shall receive
restitution directly from that minor.”
Section 730.6, subdivision (h), directs the court to order restitution
in “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.” “[W]e observe that [Welfare and Institutions
Code] section 730.6 parallels Penal Code section 1202.4, which governs adult
restitution.” (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) The statute, by its terms, does not require
any particular kind of proof. (See >People v. Gemelli (2008) 161 Cal.App.4th
1539, 1543 [Fourth Dist., Div. Two] (Gemelli).) “‘“[T]he standard of
proof at a restitution hearing is by a preponderance of the evidence, not proof
beyond a reasonable doubt.”’
[Citation.]” (Id. at p. 1542.)

“[T]he
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.’ . . .”
. . . [¶] This is
so because a hearing to establish the amount of restitution does not require
the formalities of other phases of a criminal prosecution.’” (In re
Brittany L. (2002) 99 Cal.App.4th 1381, 1391-1392, fns. omitted.)

In
People v. Foster (1993) 14
Cal.App.4th 939 [Fourth Dist., Div. Two] (Foster),
superseded on other grounds as stated in People
v. Sexton (1995) 33 Cal.App.4th 64, 70-71, the defendant argued that the
Legislature “must have intended that determinations of value be based on
evidence other than the victim’s uncorroborated statement.” (Foster,
at p. 948.) This court
disagreed. (Ibid.) We stated that “the
trial court is entitled to consider the probation report when determining the
amount of restitution. A property
owner’s statements in the probation report about the value of her property
should be accepted as prima facie evidence of value for purposes of
restitution. [Citation.]” (Id.
at p. 946; see also Gemelli, >supra, 161 Cal.App.4th at p. 1543.)

This
court further stated in Gemelli, >supra, 161 Cal.App.4th 1539, that
“[o]nce the victim makes a prima facie showing of economic losses incurred as a
result of the defendant’s criminal acts, the burden shifts to the defendant to
disprove the amount of losses claimed by the victim. [Citation.]
The defendant has the burden of rebutting the victim’s statement of losses,
and to do so, may submit evidence to prove the amount claimed exceeds the
repair or replacement cost of damaged or stolen property. [Citation.]”
(Id. at p. 1543; see also
Foster, supra, 14 Cal.App.4th at p. 947.)

Here,
the probation report recommended payment of $500 to the victim based on the
victim’s statement, and it was up to minor to demonstrate this amount exceeded
the repair or replacement cost. Minor
pointed out that other victims were asking for $20 or $30, and that some of
them were not claiming any amount.
However, he did not submit evidence about the type of mailbox the victim
owned or the extent of damage thereto, as compared to the other victims’
mailboxes. In other words, minor did not
rebut the victim’s statement that it would cost that amount to fix or replace
his mailbox.

Minor
attempts to distinguish his case from Foster
by asserting that in Foster, we
primarily focused on the victim’s statement in a probation report “as related
to due process, waiver, and ineffective assistance of counsel arguments, rather
than an insufficient evidence argument.”
Although Foster did concern
those other issues, the defendant there also raised the argument that “the
record must contain evidence of the replacement cost of the property.” (Foster,
supra, 14 Cal.App.4th at
p. 945.) In our discussion of that
issue, this court noted that the trial court could properly consider the
victim’s statements in a probation report as evidence when determining the
proper amount of restitution. (>Id. at p. 946.)

Minor
further claims that the instant case is similar to People v. Harvest (2000) 84 Cal.App.4th 641. In that case, the trial court ordered
restitution for burial expenses pursuant to two victims’ claims. (Id.
at p. 652.) The appellate court
reversed one of the orders, noting that the first victim’s family “could
support their claim with documentation and stood ready to testify, but the
[other] claim had neither of these supports.”
(Id. at p. 653.) Rather “[t]here was [just] mention of the
. . . claim in the probation officer’s report.” (Ibid.) We note that in the instant case, there was
more than just a “mention” in the probation officer’s report. The report stated that, according to the
police report, several mailboxes were damaged.
It also stated: “The following
victims: John H. ($30), Donna P. ($20)
and William S. ($500) desired prosecution” and, according to the victim
services advocate, William S. submitted a request for $500 for damages.href="#_ftn2" name="_ftnref2" title="">^[2] Thus, the probation officer recommended that
minor pay restitution to victims John H., Donna P., and William S., in those
amounts listed.

Furthermore,
many decisions considering the issue of victim restitution agree with >Foster that: absent contrary
evidence from the defendant, a victim’s statement of the amount of the loss
reflected in the probation report is enough to support a restitution order in
the amount recommended in the report. (>In re S.S. (1995) 37 Cal.App.4th 543,
547 [quoting Foster]; >People v. Hove (1999) 76 Cal.App.4th
1266, 1275; Keichler, >supra, 129 Cal.App.4th at p. 1048; >People v. Pinedo (1998) 60 Cal.App.4th
1403, 1406; People v. Collins (2003)
111 Cal.App.4th 726, 734.) Minor here
did not present below, or on appeal, evidence to disprove the amount of loss
claimed by the victim. (>Gemelli, supra, 161 Cal.App.4th at p. 1543.) Thus, on the record before us, we have no
basis for finding the restitution amount unreasonable.

We
conclude that absent contrary evidence, the victim’s statement of the amount of
loss was sufficient to support the restitution order. The trial court did not abuse its discretion
in ordering minor to pay $500 in restitution to the victim.

DISPOSITION

The
judgment is affirmed.

NOT TO
BE PUBLISHED IN OFFICIAL REPORTS



HOLLENHORST

Acting P. J.





We concur:





RICHLI

J.





KING

J.