In re Moises R.
Filed 3/2/12 In re Moises R. CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re MOISES R., a Person
Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
MOISES R.,
Defendant and Appellant.
D059884
(Super. Ct.
No. J226892)
APPEAL from
a judgment of the Superior Court
of San Diego County,
Carolyn M. Caietti, Judge, and Lawrence Kapiloff (Retired
Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Affirmed.
Appellant
Moises R., age 17, admitted, and the juvenile court found true, seven counts of
violating Penal Code section 594, subdivisions (a), (b)(2)(A). The court dismissed the remaining charges
with a Harvey
waiver. (People v. Harvey (1979) 25 Cal.3d 754.) The court (Judge Carolyn Caietti) declared
appellant a ward of the court; ordered appellant's care, custody and control to
be under the supervision of probation; placed appellant with his mother;
imposed various terms and condition of probation; and ordered appellant to pay
restitution to the City of San Marcos.
At a subsequent restitution hearing, the court (Retired Judge Lawrence
Kapiloff) ordered restitution in the amount of $9,678.56.
FACTUAL AND
PROCEDURAL BACKGROUND
name="_ftnref1" title="">[1]
In August
2010, Deputy Sheriff A. Paez contacted appellant and his two friends at about 11:15 a.m. sitting in appellant's car located
in a parking area behind a vacant building in San Marcos. Appellant consented to a search of his
car. Inside, the deputy located a bottle
of beer, a water pipe and a paper containing graffiti-type writing, including
the "tag" Soes. The deputy
recognized the moniker as belonging to an unidentified prolific
"tagger" in the City of San Marcos.
Following a
Miranda admonishment, appellant
admitted that he had been "tagging" on and off for the past two years
and that he "tagged" for the " 'fun' " and
" 'thrill' " of it.
When shown pictures of graffiti vandalism in the City of San
Marcos containing the tag name "Soes," he
admitted to 36 incidents. Appellant
later told the probation officer that "Soes" was a name he picked in
his freshman year of high school.
On August 25, 2010, appellant was
charged in a petition with 28 counts of misdemeanor vandalism, one count of
violating Business and Professions Code section 25662, subdivision (a) and one
count of violating Penal Code section 308, subdivision (b). The 28 counts of vandalism occurred between September 27, 2009 and April 27, 2010, all within the one-year statute of
limitations. The other eight incidents
of vandalism that appellant admitted to the police occurred between March 29
and April 7, 2009.
At a
restitution hearing in May 2011, Ricky Nelson, a public works supervisor for
the City of San Marcos, testified
that he is responsible for the Graffiti Department. He explained that the City outsources
graffiti clean-up and is charged a negotiated contract rate on a per-incident
basis. The City was billed for and paid
this rate for 36 incidents attributable to appellant. Applying the negotiated rate to the 36 incidents
which appellant admitted, the court imposed a restitution order of $9,678.56.
DISCUSSION
Appointed
appellate counsel has filed a brief summarizing the facts and proceedings
below. Counsel presents no argument for
reversal but asks that this court review the record for error as mandated by
436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as
possible, but not arguable, issues: (1)
whether the court erred in ordering restitution based on an average cost for
graffiti removal rather than the actual costs incurred; (2) whether the court
abused its discretion by ordering appellant to pay restitution for eight
uncharged and time-barred graffiti incidents; and (3) whether there was
sufficient evidence to support restitution for the uncharged counts.
We granted
appellant permission to file a brief on his own behalf. He has not responded.
A review of
the record pursuant to People v. Wende,
supra, 25 Cal.3d 436 and Anders v.
California, supra, 386 U.S. 738, including the possible issues referred to
by appellate counsel, has disclosed no reasonably arguable appellate
issues. Competent counsel has
represented appellant on this appeal.
DISPOSITION
The
judgment is affirmed.
HALLER, J.
WE CONCUR:
NARES, Acting P.J.
AARON, J.
name="_ftn1" title="">[1]
Facts are taken from reports prepared
by the probation department.
