In re G.P.
Filed 11/27/13 In re G.P. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 THREE
In re G.P., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
G.P.,
Defendant and
Appellant.
G047609
(Super. Ct.
No. DL040846)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Kimberly Menninger, Judge. Affirmed.
Kristin A. Erickson,
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, A. Natasha Cortina, Kristen Kinnaird
Chenelia and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and
Respondent.
*
* *
The court found that minor
G.P. committed felony vandalism. (Pen.
Code, § 594, subd. (a).)
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The court declared him a ward under
Welfare and Institutions Code section 602 and ordered him to be committed
to juvenile hall for 60 days, but stayed the commitment pending his successful
completion of probation. On appeal minor
contends that the court applied the wrong legal standard in determining he
committed felony vandalism and that insufficient evidence showed he caused
damage in excess of $400. We affirm.
FACTS
On June 21, 2012, minor used a baseball bat to break
the window and door of his bedroom in the apartment rented by his mother (Regina
Ramirez) and her husband (Ramon Davalos). Ramirez paid for the parts need to
replace the window and door, and Davalos installed them. Their receipts showed they paid at least
$166.55 for parts. These receipts did
not include any charges for paint, a door handle, door hinges, a door jam, or
labor. Davalos spent around 20 minutes
installing the door and 20 minutes installing the window. Ramirez spent around 30 minutes cleaning up
the broken glass. Ramirez believed the
new door and window were not inferior to the original door and window.
Joseph Poncino, the
vice-president of construction for Saywitz Company (which owned and managed the
apartment building), saw photos of the damaged door and window. Poncino estimated the cost of repairing them
would be approximately $500 to $600, but testified this was a “ballparkâ€
estimate since he had not looked at the damage in person. Poncino — a licensed general contractor with 40
years of construction experience — had repaired doors, paid other people to
repair doors, and estimated the cost of door repairs “hundreds of times.†At the minor’s apartment complex, he had
repaired or paid for the repair of broken doors and “plenty of windows,†including
replacing eight or nine windows in the complex in the last eight years.
The court found minor
committed felony vandalism by causing damage exceeding $400. The court concluded that Poncino, as “the
expert who replaces doors and windows on a regular basis†at the complex where
Ramirez and Davalos rented an apartment, “has the most accurate cost of
repair.†The court focused on the loss
to the owner of the property, and
noted that the property manager of the property estimated the loss to be
between $500 and $600. The court found
that Ramirez’s receipts did not include all the parts necessary to completely
repair the damage.
DISCUSSION
Measuring Damage Under Section 594
Section 594 defines the
crime of vandalism. A person commits
vandalism by maliciously defacing, damaging, or destroying someone else’s
property. (§ 594, subd. (a).) If the “amount
of defacement, damage, or destruction†is at least $400, vandalism is
punishable as a felony or a misdemeanor.
(Id., subd. (b), italics
added.) Although section 594 uses
the term “amount†of damage, the statute does not specify the test or standard
for measuring it.
Case law establishes
that the “amount†of damage within the meaning of section 594 is the
v. Farell (2002) 28 Cal.4th 381, 388, our Supreme Court stated that the
statutory use of “the word ‘amount’
may be understood to refer to the value
of an item.†(Italics added.) Farell
specifically observed that “‘amount’ refers to value†for purposes of vandalism under section 594. (Farell,
at p. 389, italics added; see also In re
Arthur V. (2008) 166 Cal.App.4th 61, 68 [“The offense of vandalism, like
that of theft, can be either a felony or misdemeanor depending on the value of
property at issueâ€]; Sangha v. La Barbera
(2006) 146 Cal.App.4th 79, 89 [classification of vandalism turns on
“value†of property damaged or destroyed].)
These cases, however, do not specify how the “value†of the damage is to
be measured.
Minor argues the victim’s
out of pocket loss is the proper measure of damage, relying on the law of
victim restitution for support. He
asserts the sole “point behind determining the amount of damages†is to make
the victim whole.
The Attorney General contends
the proper measure of damage is the fair market value of the repair or
replacement. She relies on the law of
theft for support, pointing out that fair market value is the well-established
standard for determining whether theft constitutes grand or petty theft.
The court, by adopting
Poncino’s estimate of the cost of repair, impliedly applied a fair market value
test for the amount of damage under section 594. In reviewing the court’s ruling, we interpret
section 594 de novo. (
(2000) 24 Cal.4th 415, 432.)
We begin by reviewing
the relevant aspects of the law on restitution and grand theft which might prove
instructive by analogy.
Section 1202.4 governs restitution and generally requires courts to
impose a “separate and additional restitution fine†on any convicted criminal defendant
(§ 1202.4, subd. (b)) who has caused a victim to suffer economic loss (
the amount of loss claimed by the victim . . .
italics added.) Reimbursable economic
losses include full or partial payment for the “value†of damaged property, measured
as “the replacement cost of like property, or the actual cost of repairing the
property when repair is possible.†(
of the replacement cost or the actual cost of repair; rather, the “statute
leaves the choice to the trial court.†(
738.) Minor acknowledges that a court
has discretion to order restitution exceeding the actual cost of repair, but
suggests we ignore this aspect of restitution law. He argues, “When it comes to assessing damage as
an element of the crime, as opposed
to a restitution award, there is no discretion involved.â€
As with vandalism, value
is an element of theft. Grand theft is a
theft of property valued at more than $950 (§ 487, subd. (a)) and is
punishable as a felony or a misdemeanor (§ 489). A stolen property’s value is its “reasonable
and fair market value†(§ 484, subd. (a)), “‘not the value of the
property to any particular individual’†(People
v. Lizarraga (1954) 122 Cal.App.2d 436, 438). “‘[F]air market value’ means the highest
price obtainable in the market place rather than the lowest price or the
average price.†(People v. Pena (1977) 68 Cal.App.3d 100, 104.) Fair market value may be established by
expert testimony. (Lizarraga, at p. 438.) When the
evidence is in conflict on the issue of the stolen property’s value, the
question is one for the fact finder. (
Grand theft is analogous
to felony vandalism with respect to the issue at hand because value is an
element of both crimes and determines whether the perpetrator may be
594 damage is the fair market value or fair market cost of the repair or
replacement of the property. Minor’s
attempt to limit the value of the damage he inflicted in this case to the out
of pocket costs of his mother and her husband is unpersuasive. Punishment encompasses goals beyond victim
compensation — e.g., deterrence, rehabilitation,
retribution, and public protection. Although
some of these goals may not apply to the juvenile justice system (
805), they are relevant to the interpretation of section 594. Restitution is simply an “additional†form of
punishing an offender. (§ 1202.4,
subd. (b).) By its terms, section 594 does
not limit a vandal’s punishment to
victim compensation: a person who
defaces property is subject to the punishment of keeping property free of
graffiti for up to one year. (
Our criminal justice
system strives to punish an offender commensurately with the gravity of the
crime. (See, e.g., People v. Perez (1979) 23 Cal.3d 545, 550-551 [purpose of § 654 is
to insure that defendant’s punishment will be commensurate with
culpability].) Fair market value is an objective
standard which is not subject to manipulation by the victim. (See People
v. Simpson (1938) 26 Cal.App.2d 223, 229 [market value at time and place of
larceny, not special value to owner of property stolen, is proper basis for
proving property’s value].) Minor argues
that using the test of the victim’s actual repair cost prevents “arbitrariness
and uncertainty†and eliminates the need to have expert testimony on the
“‘reasonable repair cost.’†But the
instant case illustrates the arbitrariness and uncertainty that can result when
a victim is biased. The court found
Ramirez to be an “extremely hostile†witness on the stand during direct
examination. At the sentencing hearing,
the court chided Ramirez and Davalos for coddling and covering for minor. Ramirez and Davalos factored no labor into
their estimate of the cost of repair; they also omitted the cost of some
necessary parts. Minor acknowledges that
a “victim unsympathetic to a minor or
defendant could very well maximize the estimated repair cost.†Furthermore, the court found the actual victim
here was the apartment owner, not the tenants Ramirez and Davalos. As to the need for expert testimony in any
particular case, if the actual cost of repair is a reasonable sum, there may be
no need for expert opinion on the subject.
Finally, minor argues the
vandalism statute should be interpreted in his favor under the policy of
lenity. But the “rule of lenity is invoked
only when ‘“two reasonable interpretations of the same provision stand in
relative equipoise, i.e., that resolution of the statute’s ambiguities in a
convincing manner is impracticable.’â€
[Citations.] We do not find
reasonable the strained interpretation offered by
defendant . . . .’†(
Finding the Damage Exceeded $400
Minor argues Poncino’s
ballpark estimate constitutes insufficient evidence of the cost of
repairs. This argument requires us to
determine “whether there is substantial evidence to support the conclusion of
the trier of fact,†“not whether guilt is established beyond a reasonable
doubt.†(People v. Redmond (1969) 71 Cal.2d 745, 755.) We review the whole record in the light most
favorable to the judge’s finding. (
809.) To be substantial, evidence must
reasonably inspire confidence and be of solid value. (Ibid.)
Poncino’s testimony
provided substantial evidence that the fair market value of the damage was
between $500 and $600. Given Poncino’s
40 years of experience in the construction industry and his personal experience
making or arranging for window and door repairs and replacements at minor’s apartment
complex, his ballpark figure was no uninformed guess. Poncino was the representative of the property
owner, who the court found was the victim in this case. “The testimony of the owner is competent and
sufficient.†(2 Witkin & Epstein,
Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 10, p. 33 [in
theft cases].) Viewing the evidence in
the light most favorable to the judgment, we conclude substantial evidence
supported the court’s finding minor caused damage in excess of $400.
DISPOSITION
The
judgment is affirmed.
IKOLA,
J.
WE CONCUR:
BEDSWORTH,
ACTING P. J.
FYBEL, J.
court dismissed for insufficient evidence an allegation minor possessed a
weapon (a billy club). All further
statutory references are to the Penal Code unless otherwise stated.
