In re J.T. CA3 ( 2021 )

Filed 9/15/21 In re J.T. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re J.T., a Person Coming Under C069844
the Juvenile Court Law.
THE PEOPLE, (Super. Ct. No. JV129856)
Plaintiff and Respondent,
v.
J.T.,
Defendant and Appellant.
After finding minor to be a person described in Welfare and Institutions Code
section 6021 related to multiple acts of graffiti vandalism, the juvenile court placed him
on probation and made restitution to the City of Sacramento (the City) for the clean-up
1 Undesignated statutory references are to the Welfare and Institutions Code.
1
costs as a condition of probation. Minor contends the juvenile court abused its discretion
in the amount of restitution it awarded.
Given subsequent developments in the law, we conclude there was insufficient
evidence to support the restitution award ordered by the court. Consequently, we reduce
the award to $660, the amount for which a factual nexus was established at the restitution
hearing.
FACTUAL AND PROCEDURAL BACKGROUND
The Agreed Resolution and Restitution Cap
A contested jurisdictional hearing commenced in which it was alleged that 17-
year-old J.T. (the minor) committed multiple acts of graffiti vandalism. During trial,
approximately 94 photographs of minor’s tag on light posts, traffic and bus stop signs,
benches, storm drains, fire hydrants, and private property were received into evidence.
After several days of testimony, the minor decided he wanted to resolve his case. He
admitted one count of felony vandalism (Pen. Code, § 594, subd. (b)(1)), which
encompassed only 20 incidents of graffiti on property belonging to the City. In exchange
for his admission, the minor received the dismissal of six remaining counts of vandalism
and a promise that restitution for the abatement would be capped at $7,460. The parties
understood that the City would assert a cost of $370 per incident. The court found that
the admitted count was a felony and that the minor was a person described in section 602.
The court placed the minor on probation and imposed restitution as a condition thereof
with the amount to be determined after a restitution hearing.
Restitution Hearing
At the beginning of the restitution hearing, the juvenile court stated for the record,
“I heard the evidence which was presented at trial. [¶] . . . [¶] I heard that graffiti was
placed upon certain property belonging to the City . . . .That graffiti was described by
witnesses.” The court acknowledged the prosecution proffer using a fee model formula
and calculating restitution at $373 per incident. For the twenty admitted incidents, the
2
total proffered was $7,460. The court observed that since there was no dispute about the
number of locations, the only question was the validity of the City’s cost estimate at $373
per incident.
Noel Eusebio, a senior code enforcement supervisor for the City, testified that
based upon the Fee Study, the City charged $373 per incident for juvenile graffiti
abatement. The Fee Study, in which he had participated, involved thousands of graffiti
cases per year and was completed on March 14, 2009.2
Factors considered in the City’s Fee Study were the costs of intaking the graffiti
complaint, dispatching an officer to initiate a case, documenting and photographing the
graffiti, entering data into the system, scheduling the materials, scheduling a work order,
scheduling staff, assembling an abatement crew, gathering necessary cleanup materials,
transporting the abatement crew to and from the location of the graffiti, entering data
regarding the case into the computer system, and appearances in court by persons such as
Eusebio. Also included in the study were the proportionate costs of the gas, insurance
and depreciation of vehicles used to transport the abatement crew from the “car barn”
(location where the vehicle was stored) to the location of the graffiti and then returning to
the car barn, and the wages for the abatement crew from the time they were dispatched to
the time they returned.
The abatement crew that cleaned up the minor’s graffiti consisted of one code
enforcement officer, who was paid $20 to $28 per hour, and four youth workers, who
were each paid $9.40 per hour. Although the minor only admitted to 20 incidents of
graffiti, there were 12 other graffiti sites related to the count the minor admitted within
2 A summary of the Fee Study (the Fee Study Summary) was admitted into evidence as
the minor’s Exhibit A. According to the summary, the actual average cost for each
instance of graffiti abatement was $514.16; however, for graffiti abatement in juvenile
cases there was a “subsidy” of $141.16, leaving the cost at $373 per incident.
3
the same area bearing his tag name. The abatement for all 32 sites was completed in one
eight-hour day.3
The average amount of time for each incident of graffiti abatement was 15 to 45
minutes. They typically used Graffiti-X, a graffiti removal solution, and 3M scrubbies.
Based on past experience, Eusebio estimated that the approximate time it took to abate
each incident of the minor’s graffiti was about 30 minutes, although he could not be
certain without seeing the photographs. He did not bring records with him to the hearing
showing how long it took to remediate each incident. He noted that all of the City’s
photographic documentation had been presented to the prosecutor’s office.
Eusebio testified the fee was not based upon the actual time the abatement crew
took to remove the minor’s graffiti; rather, it was based on the study. While he testified
that Graffiti-X was normally used, he did not estimate the amount that would have been
used for the 20 incidents of graffiti at issue. In order to provide such an estimate,
Eusebio testified he needed to see the evidence. Nor did he know the cost of Graffiti-X,
although he thought he could find the cost “someplace.” Eusebio also testified that if
Graffiti-X does not work, they use a “ ‘more aggressive approach,’ ” but he could not tell
if that was done in this case without looking “at the evidence, the photographic
evidence.” He also testified that using that approach ruins signs, but he could not say
whether any signs needed to be replaced because of the minor’s graffiti without looking
at “the photographs and the evidence.” Eusebio indicated he did not know whether a
painter was needed to cover up the minor’s graffiti, explaining: “Again, I would have to
look at the photographs and the evidence.”
3 Initially, Eusebio thought the abatement might have taken “multiple days” based on the
amount of the graffiti. And to confirm that, he would need to look at the evidence. Later,
his attention was called to one of the exhibits introduced during the restitution hearing
and he confirmed the remediation took place in a single day.
4
When asked about administrative costs, Eusebio listed: “[M]e appearing in court,
intake at the 3-1-1 call center, documentation as far as physically entering data into the
system, uploading that data, scheduling of staff.” As far as can be determined from the
record, whatever percentage of the administrative costs spent for time he spends in court
must have also been an average; the time he actually spent in court on this case could not
be determined before he actually spent time in court on this case. No evidence appears
on the record, even on this easily determined cost.
As noted, the photographs were not available to Eusebio during his testimony.
According to the juvenile court’s clerk, the exhibits were returned to the “filing parties”
after the earlier proceedings based on their stipulation. When the court asked if the
exhibits were in the possession of the People, the prosecutor indicated that they were.
The prosecutor indicated minor’s counsel had her own set of the photographs.
Counsel for the minor requested that the juvenile court direct Eusebio “to gather or
refer to or look at whatever documents or photographs or whatever else he needs to look
at in order to be able to answer the specific questions about this particular case, the time it
took abate the specific acts of graffiti, and what materials were used.” The court stated it
was disinclined to do so and indicated it was the minor’s responsibility “to acquire that
evidence to bring to court to show him.” No specific photographs were ever referenced
by anyone, including the court, during the restitution hearing.
Argument and the Juvenile Court’s Ruling
The minor’s counsel argued the court should award restitution in the amount of
$660. Counsel arrived at this figure by rounding upward the youths’ rate of pay to $10
per hour, the supervisor’s rate to $30 per hour and assumed the van could be rented for
$100 per day. Thus, according to the minor, one eight-hour day, which was the time it
took to clean up his graffiti, would cost the City $660 ($320 for the youths, $240 for the
supervisor, $100 for the van.) The prosecutor continued to request that restitution
amount be set at $7,460.
5
The juvenile court noted that cases interpreting section 730.6 hold that it is not
necessary that restitution calculations be exact, “dollar for dollar, penny for penny.”
Rather, what is required is “two things: One is to use a method of valuation which is
reasonable under the circumstances; and (2) use a method of valuation which makes the
victim whole.” The trial court ruled that the Fee Study was a reasonable method for
calculating the cost of graffiti abatement. Specifically, the court recounted that the City
collected all the financial data necessary to run the abatement operation for one year and
total number of abatement tasks for the year. Dividing the total cost per year by the
number of tasks per year yielded an average of $514.16 per task. Deducting the $141.16
subsidy the City allowed for juvenile cases, the cost was $373 per task. However, the
court concluded that because the minor’s graffiti related to the count he admitted was all
in the same area and was cleaned up in a single day, it was unlikely that the abatement
crew returned to the car barn after each abatement, which was an assumption used by the
City in developing the Fee Study.4 Therefore, the court discounted the $7,460 by 25
percent, resulting in the restitution award of $5,595. The court did not factor into its
analysis any recollection of the photographic evidence it had seen during the trial. As
noted, the restitution order was imposed as a condition of probation.
DISCUSSION
The minor contends the juvenile court erred in using the Fee Study to determine
the amount of restitution because “there was no evidence from which a rational
determination of the [City’s] loss could be made.” Therefore, according to the minor, the
amount of restitution should be reduced to $660, a figure which more accurately reflects
what he asserts is the City’s actual cost for the abatement of his graffiti. The minor also
contends the matter should be remanded for a new hearing because the court failed to
4 Upon questions by the juvenile court, Eusebio confirmed this assumption.
6
determine his ability to pay the restitution as required pursuant to Welfare and
Institutions Code section 742.16, subdivision (b). We agree as to the first point, but
disagree as to the second.
I. Restitution Award
While this appeal was pending, the California Supreme Court granted review in
Luis M. and subsequently issued its opinion in Luis M. v. Superior Court (2014) 59
Cal.4th 300 (Luis M.). Neither party requested supplemental briefing after the Supreme
Court’s opinion was published.5 We discuss that opinion, post.
“In 1982, by initiative, the voters of California added a provision to the state
Constitution establishing a new constitutional right: the right of every crime victim to
obtain restitution from the perpetrator of the crime for losses suffered.” (People v. Crow
(1993) 6 Cal.4th 952, 956.) Section 730.6, the general statute implementing this
constitutional provision, governs restitution by minors who, as here, are made wards of
the court.6 The purposes in ordering victim restitution in juvenile cases are to rehabilitate
5 We did request and receive supplemental briefing regarding the Court of Appeal
decision in Luis M. There, Division 7 of the Second District held that because the
Sheriff’s Department was not a direct victim, investigation costs related to graffiti
vandalism could not be recovered as part of a restitution award; the general costs of
maintaining graffiti abatement equipment and tracking graffiti were not economic losses
subject to restitution; and the fee study model used in that case did not reflect actual
cleanup cost. (In re Luis M. (2012) 210 Cal.App.4th 982.)
6 In pertinent part, section 730.6 provides in pertinent part: “(a)(1) It is the intent of the
Legislature 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. [¶] (2) [T]he court shall order the minor to
pay . . . the following: [¶] [¶] (B) Restitution to the victim or victims, if any, in
accordance with subdivision (h).” Subdivision (h)(1) provides in pertinent part: “A
restitution order pursuant to subparagraph (B) of paragraph (2) of subdivision (a) . . .
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 . . . including all
of the following: [¶] (A) [T]he actual cost of repairing the property when repair is
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the minor, deter future delinquent behavior, and make the victim whole through
compensation for his or her economic losses. (In re Anthony M. (2007) 156 Cal.App.4th
1010, 1017 [“The purpose of an order for victim restitution is threefold, to rehabilitate the
defendant, deter future delinquent behavior, and make the victim whole by compensating
him for his economic losses”].)
Our high court in Luis M. discussed the graffiti abatement costs for which
restitution can be obtained under section 730.6.7 “Under the general statute [section
730.6], a restitution award for economic losses [citation] may include the materials,
equipment, and labor costs incurred for remediation. Preexisting expenditures, such as
salaried employees and equipment purchases, may be included provided those costs can
be fairly apportioned on a pro rata basis to the minor’s conduct.” (Luis M., supra, 59
Cal.4th at p. 309.) The court continued: “This summary is not intended as an exhaustive
list. The court ultimately retains discretion to fix the amount of restitution using ‘any
possible [¶] . . . . [¶] (D) Wages or profits lost by the victim . . . Wages or profits . . . due
to time spent as a witness or in assisting the police or prosecution. [¶] . . . . [¶] (j) For
purposes of this section, ‘victim’ shall include: [¶]. . . [¶] (2) Any governmental entity
that is responsible for repairing, replacing, or restoring public or privately owned
property that has been defaced with graffiti or other inscribed material, as defined in
subdivision (e) of Section 594 of the Penal Code . . . .”
7 As the Luis M. court noted, there is a second statutory mechanism for restitution in
graffiti vandalism cases: The general statute, section 730.6, subdivision (h), authorizes
full restitution for economic losses, including “the actual cost of repairing the [damaged]
property when repair is possible.” (§ 730.6, subd. (h)(1), italics added.) Awards under
section 730.6 are based on proof of the damage actually linked to the minor’s conduct
and do not include investigative costs. In contrast, sections 742.14 and 742.16 of the
Graffiti Program authorize restitution based on the average costs for graffiti investigation
and remediation per unit of measure.” (Luis M., supra, 59 Cal.4th at p. 307.) But the
average cost mechanism under the Graffiti Program statutes is not available unless the
city or county adopts an ordinance authorizing the probation department to recoup that
governmental entity’s costs as restitution in a juvenile proceeding and has updated its
cost model within the three years preceding the court’s restitution order. (Id. at p. 308.)
As we shall discuss post, these provisions are inapplicable here.
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rational method . . . provided it is reasonably calculated to make the victim whole . . . ’ ”
(Ibid.) “While the court need not ascertain the exact dollar amount of the City’s losses
[citation] its calculation under section 730.6 must have some factual nexus to the damage
caused by the minor’s conduct.” (Ibid., italics added.)
The Luis M. court rejected the use of the restitution model in that case concluding:
“Here, the juvenile court based its estimate on an average of all costs of graffiti cleanup
rather than a rational estimate of costs occasioned by Luis’s conduct. The People
provided no evidence of the size or type of Luis’s graffiti. There was no evidence about
the materials, equipment, and labor required to remove it. We cannot determine, for
example, if the City painted over a small area or used more expensive equipment to
restore the property’s surface.” (Luis M., supra, 59 Cal.4th at p. 309.) The court later
explained: “[T]he trial court retains broad discretion under section 730.6 to estimate the
material, equipment, and labor costs necessary to repair the damage caused by a discrete
act of graffiti. According to the record before us, the City photographs graffiti as part of
its investigation and tracks all incidents by computer. The photographs presumably
reflect the size, extent, and type of graffiti involved. Using such evidence, a witness
familiar with graffiti abatement could estimate the average cost per square foot (or other
measure) to paint over or otherwise restore the defaced surfaces. Alternatively, business
records reflecting time and materials might provide a rational basis for estimating
costs.” (Id. at p. 310, italics added.)
Courts have broad discretion in fixing the amount of restitution, and they may use
any rational method, provided it is reasonably calculated to make the victim whole. (Luis
M., supra, 59 Cal.4th at p. 305; People v. Hurtado (2019) 35 Cal.App.5th 871, 878
(Hurtado).) And we review restitution awards for abuse of discretion. (Luis M. at
p. 305.) But there still must be a factual nexus between the amount of restitution ordered
and the damage caused by the minor’s conduct. (Id. at p. 309.) Court of Appeal cases
published after Luis M., illustrate the application of Luis M. regarding restitution under
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section 730.6 and provide examples of the factual nexus requirement in the graffiti
vandalism context.
In People v. Santori (2015) 243 Cal.App.4th 122 (Santori), a crime prevention
officer calculated the cost of graffiti removal per minute based on the costs of the cleanup
crew, administrative costs, the use of a private vender computer program and her salary.
(Id. at p. 125) She did not know how long it actually took to clean up each of the
defendant’s incidents, but testified that generally it took an average of 100 minutes to
remove an item of graffiti. (Ibid.) Based on the photographs of 32 graffiti incidents, she
further opined that 100 minutes was a reasonable estimate for each one depicted, even
though some may have taken less time and some may have taken more. (Ibid.) The total
cost was determined by multiplying the 32 incidents by 100 minutes by the per minute
cost. (Ibid.) Contrasting Luis M., the Santori court relied on the fact the crime
prevention officer considered the photographs depicting defendant’s graffiti whereas
none were considered in Luis M.; thus, the Santori crime prevention officer’s opinion was
not based solely on the average for graffiti removal, but also on her estimate as to
defendant’s specific graffiti. (Id. at pp. 126-127.) The court also noted the defendant did
not challenge the 100 minute estimate regarding any of the acts of graffiti and did not
identify any photograph that would support his claim that the restitution order was
unreasonable. (Id. at p. 127.)
In People v. Aguilar (2016) 4 Cal.App.5th 857 (Aguilar), a contractor hired by the
city painted over defendant’s graffiti, an area of approximately 500 square feet. (Id. at
p. 860.) Three photographs were admitted into evidence. (Ibid.) A flat rate cost of $475
was assessed for restitution. (Ibid.) The city’s graffiti abatement coordinator testified
this was a “ ‘fair price’ ” for this particular graffiti, based on the size and extent of the
graffiti, the amount of paint it took to cover it and the fact the remediation had to be done
quickly because of the profane nature of the graffiti, which was on a daycare center. (Id.
at p. 861.) Admittedly, the abatement coordinator did not know the actual cost of the
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paint, the number of hours spent, the hourly wage paid to the painter or painters required
for the remediation. (Ibid.) The trial court agreed, however, that the restitution was
appropriate given the extent of the damage depicted. (Ibid.)
The Aguilar court noted that in Luis M., our high court found it significant that
there were no photographs or other description of the graffiti except to note that it
involved a traffic sign and several electrical boxes. (Aguilar, supra, 4 Cal.App.5th at
p. 863.) It also noted our high court’s explanation that “ ‘a witness familiar with graffiti
abatement’ could use photographs or other evidence of ‘the size, extent, and type of
graffiti involved’ to ‘estimate the average cost per square foot or other measure to paint
over or otherwise restore the defaced surfaces.’ ” Reasoning that Santori was somewhat
analogous, the Aguilar court affirmed the restitution award. Although the abatement
coordinator did not provide a time estimate for the remediation as in Santori, he did
consider the photographs depicting defendant’s graffiti and, based on his experience,
opined that the flat fee of $475 was a “ ‘fair price’ ” to remediate defendant’s graffiti.
(Id. at p. 865.) He considered the large area involved, the necessity for expedited
removal and the general costs of paint and labor. Given this, the Aguilar court found a
factual nexus to the defendant’s conduct. (Ibid.)
In Hurtado, supra, 35 Cal.App.5th 871, the city determined the cost of abating
graffiti by using a cost per square foot formula. It then multiplied the total square footage
of the minor’s graffiti to determine the requested restitution amount. (Id. at p. 874.)
Each specific graffiti incident of defendant’s graffiti was detailed and costs associated
with each count were provided. (Ibid.) The evidence disclosed that the city uses an app
to track all graffiti removed, and for each incident, the individual abating the graffiti
uploads a photograph of the graffiti as well as the date, time, location, type of surface
defaced, the removal method and total square footage. (Id. at p. 875.) The app generates
a report with the estimated cost of abatement for each incident using cost per square foot
formula developed by the city. (Ibid.) The prosecutor argued that there was a sufficient
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nexus to the minor’s conduct because the photographs of each incident were introduced
and there was specificity as to the method of abatement. (Id. at p. 877.) In ordering
restitution, the juvenile court made clear it was “ ‘not adhering to any mathematical
formula.’ ” (Id. at p. 878.) It also noted that it considered evidence from the preliminary
hearing and the photographs introduced into evidence to support the claimed amounts
based on square footage; it reasoned that square footage was a rational factor to consider.
(Ibid.)
On appeal, the Hurtado court found it significant that the witness in Luis M.
offered “ ‘no information about the actual abatement costs related to [the minor’s]
conduct.’ ” (Hurtado, supra, 35 Cal.App.5th at p. 879.) Unlike in Luis M., the
prosecution “submitted photographs of each incident of graffiti attributable to Hurtado as
well as evidence of the size of the square footage, the surface type on which each incident
of graffiti occurred, and the removal method. More importantly, the method of
calculation of the amount of restitution used by the City specifically considered the size
of the graffiti Hurtado created.” (Id. at pp. 879-880.)
The evidence our high court found lacking in Luis M. is lacking here. And the
instant case stands in stark contrast to Santori, Aguilar and Hurtado. Critically, there
were no photographs introduced in the restitution hearing. Consequently, the
prosecution’s witness here was not provided the opportunity to offer opinions about the
cost of remediation based on the photographic evidence. Indeed, multiple times he said
he could not give more specific answers without that evidence. And although the
juvenile court had presided over the jurisdictional trial and may have had some memory
of the photographic depictions of vandalism, it made no reference to any such
recollection and did not cite it as a basis for its restitution award.
We must conclude there was insufficient evidence to support a factual nexus to
defendant’s conduct in the amount of the restitution award. On the other hand, there was
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a factual nexus to the amount the minor suggested - $660. We conclude, the restitution
award should be reduced to that amount.
II. Minor’s Ability to Pay
Citing section 742.16, subdivision (b), the minor contends the juvenile court
imposed an unauthorized sentence when it failed to determine his ability to pay before
ordering victim restitution.
Minor concedes he “did not challenge the issue in the juvenile court.” We
conclude the matter is forfeited. (People v. Avila (2009) 46 Cal.4th 680, 729 [defendant’s
failure to adduce evidence of inability to pay the maximum restitution fine forfeits
challenge]; see also People v. Trujillo (2015) 60 Cal.4th 850, 859 [failure to object to
assessment of probation costs on failure to pay grounds forfeited]; People v. McCullough
(2013) 56 Cal.4th 589, 599 [failure to object to jail booking fees on failure to pay grounds
forfeited].) As this court long ago noted in the context of restitution fines “[a]s a matter
of fairness to the trial court, a defendant should not be permitted to assert for the first
time on appeal a procedural defect in imposition of a restitution fine, i.e., the trial court's
alleged failure to consider defendant's ability to pay the fine. [Citations.] Rather, a
defendant must make a timely objection in the trial court in order to give that court an
opportunity to correct the error; failure to object should preclude reversal of the order on
appeal. [Citation.]” (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.)
Moreover, the minor’s claim fails on the merits. Section 730.6, subdivision (h)
states that a minor’s “inability to pay shall not be considered a compelling or
extraordinary reason not to impose a restitution order.” However, the Graffiti Removal
and Damage Recovery Program (§§ 742.10 – 742.22), which includes section 742.16
upon which the minor relies, authorizes cities and counties to “elect” by ordinance to
have the county probation officer recoup the cost of graffiti abatement, and requires the
city or county to make findings “to be reviewed at least once every three years, of the
average cost to the city [and/or] county per unit of measure of removing [the]
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graffiti . . . .” (§§ 742.14, subds. (a), (c), (d), 742.16, subd. (b).) Because an award of
restitution under the Graffiti Program can include law enforcement agency investigative
costs, an ability to pay requirement makes sense for restitution awarded under these
statutory provisions. But here, there is no evidence in the record establishing that the
City had an ordinance such that the provisions of the Graffiti Removal and Damage
Recovery Program apply here.8
Consequently, section 742.16, subdivision (b) is not applicable, and no showing of
the minor’s ability to pay is required in this award of restitution grounded on section
730.6.
*****
8 In the Attorney General’s supplemental briefing, she acknowledged that while the City
had a graffiti ordinance, that ordinance did not authorize the probation department to
recoup the costs of graffiti abatement. (Sacramento City Code, §§ 8.24.010-8.24.0600.)
Instead, it provided a mechanism for the City to recoup abatement costs from minors and
their parents or guardians civilly, which the City was free to do here. (Sacramento City
Code, § 8.24.050.)
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DISPOSITION
The juvenile court is directed to reduce its order of joint and several restitution to
$660.
/s/
MURRAY, J.
We concur:
/s/
RAYE, P. J.
/s/
HULL, J.
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