People v. Quezada CA2/8 ( 2016 )

Filed 5/5/16 P. v. Quezada CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B264909
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA431860)
v.
JAIME QUEZADA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Craig J.
Mitchell, Judge. Affirmed.
Joseph R. Escobosa, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Jaime Quezada, along with his codefendant, tagged
several local businesses with gang graffiti. Defendant pleaded no contest to a single
count of misdemeanor vandalism (Pen. Code, § 594) and admitted a gang enhancement
(Pen. Code, § 186.22, subd. (d)), rendering him eligible for a felony sentence. He was
sentenced to two years in prison and ordered to pay restitution. Defendant stipulated to
$500 in restitution to the owner of two damaged properties. On appeal, he challenges the
$950 in restitution to the City of Los Angeles (City), for remediating the graffiti at two
other properties. Defendant argues there is insufficient evidence connecting the City’s
$950 charge to the costs of remediating the damage he caused. We disagree and affirm.
FACTS
The most important piece of evidence submitted at the restitution hearing was the
City’s invoice for removing graffiti at the two locations. The invoice indicates that, at
each property, there was black spray paint graffiti on a red brick wall, which paint was
removed (as opposed to, for example, being painted over). At the first location, the
graffiti was between 12 and 18 feet in length, necessitating the cleaning of a 300 square
foot area of wall. The work was performed between December 3 and 4, 2014. At the
second location, the graffiti was smaller, requiring the City to clean only 40 square feet.
The work was performed between December 4 and 5, 2014. The work was not done by
the City itself, but was contracted out to one of the City’s abatement contractors, Korean
Youth & Community Center. The invoice listed a price of $475 for each location, for a
total of $950.
The invoice itself explained: “The cost of graffiti removal incurred by the City of
Los Angeles encompasses various elements, ALL OF WHICH ARE NECESSARY TO
OPERATE A CITYWIDE GRAFFITI REMOVAL PROGRAM. The costs listed on this
sheet do NOT reflect the costs of SOLELY removing graffiti. Rather, the prices given
are flat rates, fundamentally based upon the type of surface that has been tagged and the
subsequent type of removal required. In addition, however, there are a multitude of costs
taken into account that determine a given flat rate. Our office does not list an item by
item breakdown of costs, however, they include but are not limited to . . . .” At this point,
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the invoice sets forth a list of bullet items, including materials and equipment, vehicle and
equipment maintenance, insurance, preparation and removal time at each location, graffiti
removal personnel, gasoline, and travel time.
Gerry Valido, who works for the City Department of Public Works, Office of
Community Beautification, supervising graffiti removal for businesses, testified at the
restitution hearing. He explained that the flat rates charged by the City are
“fundamentally based upon the type of surface that has been vandalized with graffiti and
the type of removal that’s required.” He testified that the City contracts the work out to
various organizations under flat rate contracts, in which a contracting organization agrees
to perform all of the necessary removal work in its designated area of the City in return
for a fixed annual fee.
On cross-examination, defendant elicited Valido’s testimony that, for fiscal year
2013-2014 (the last year for which complete data was available), the City’s entire graffiti
abatement budget was $7,538,000, and it abated a total of 546,188 instances of graffiti for
the year. In that period, Korean Youth & Community Center was paid $460,000 (on its
contract) and remediated 32,527 instances of graffiti. Armed with this data, defendant
calculated that the City’s per-instance cost of remediation was $13.80
($7,538,000/546,188) and Korean Youth & Community Center’s per-instance cost was
$14.14 ($460,000/32,527), and argued that the City’s restitution award should therefore
be in that range per location.1
The trial court disagreed, concluding that the City’s scheme, which sets a flat rate
based on the type of surface, is reasonable. The court reviewed the City’s price per
surface data, and concluded the amounts charged logically correspond to the ease or
difficulty of removing the graffiti from particular types of surfaces. Finding that the
City’s flat-rate scheme was not arbitrary or overbroad, the court awarded the City
restitution in the amount sought of $950.
1 Defendant performed the same calculation on data for the not-yet-completed 2014-
2015 fiscal year, and reached an amount of $19.96 per location, which he argued should
be the highest amount of restitution awarded.
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DISCUSSION
Under Penal Code section 1202.4, subdivision (f), a restitution order “shall be of a
dollar amount that is sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant’s criminal conduct . . . .”
It shall include payment for the value of damaged property, which, when repairs are
made, shall be “the actual cost of repairing the property.” (Pen. Code, § 1202.4,
subd. (f)(3)(A).) The restitution statute expressly provides that a governmental entity
may be entitled to restitution when it is responsible “for repairing, replacing, or restoring
public or privately owned property that has been defaced with graffiti,” when it has
sustained an economic loss as a result of a graffiti vandalism. (Pen. Code, § 1202.4,
subd. (k)(5).)
Judges have broad discretion in fixing the amount of restitution, and the court may
use any rational method, provided it is reasonably calculated to make the victim whole.
(In re Dina V. (2007) 151 Cal.App.4th 486, 489.) “We review the restitution award for
abuse of discretion. [Citation.] ‘On appeal, we presume that a judgment or order of the
trial court is correct, “ ‘[a]ll intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be affirmatively shown.’ ” ’
[Citation.]” (People v. Santori (2015) 243 Cal.App.4th 122, 126.)
Courts have grappled with the calculation of the “actual cost of repairing” property
vandalized with graffiti when the graffiti has been remediated by a governmental agency
that abates large amounts of graffiti and does not keep track of specific expenses. In
Luis M. v. Superior Court (2014) 59 Cal.4th 300, our Supreme Court reversed an award
of restitution calculated solely on a city’s average cost per incident of graffiti. The court
recognized the practical difficulties in calculating an exact amount of restitution in such a
case, but concluded that the city could not rely on an average cost model when there was
no connection made between those average costs and the actual harm caused by the
defendant. (Id. at pp. 308-309.) “While the court need not ascertain the exact dollar
amount of the [c]ity’s losses [citation], its calculation . . . must have some factual nexus
to the damage caused by the [defendant]’s conduct.” (Id. at p. 309.) With no evidence of
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the size or type of the defendant’s graffiti, or the materials, equipment and labor required
to remove it, there was simply insufficient evidence that the average cost was appropriate
in that case. (Ibid.)
In contrast, in People v. Santori (2015) 243 Cal.App.4th 122, the evidence
included: (1) a calculation of the “per minute cost” for the government entity to abate
graffiti; (2) an expert’s testimony that it took an average of 100 minutes to remove a
piece of graffiti; and (3) the expert’s testimony that, based on a review of photographs of
the graffiti at issue, 100 minutes was a reasonable estimate for each, although some may
have taken more and others less. (Id. at p. 125.) On the defendant’s appeal, this appellate
division concluded that the evidence was sufficient; the expert’s testimony established
the necessary nexus between the average removal cost and the defendant’s graffiti. (Id. at
p. 127.)
In the current case, we conclude a sufficient nexus exists. The City’s invoice itself
indicates the type of surface (red brick), the service done (black spray paint removal), and
the square feet cleaned (300 and 40, respectively). The invoice also indicates that the
work was performed on different days, so there is no suggestion that travel and
equipment costs were saved by doing the work on both sites at the same time. While the
invoice shows that one piece of graffiti was much larger than the other, both were
sizeable, and there is no suggestion that, considered together, the time taken to remove
them would not be the same or more than two average pieces of graffiti on the same type
of surface. Moreover, the bulk of the City’s costs in removing a piece of graffiti are not
controlled by the size of the damage itself. To be sure, a larger piece of graffiti requires
more time and also materials, but other costs are more substantial: equipment,
maintenance, travel time, and the costs of administering a comprehensive graffiti-removal
system.
In the face of this evidence, defendant offered only a low-ball estimate based on a
per-unit-of-graffiti cost of removal citywide. There are two problems with this
calculation. First, it considers only the expense of removing the graffiti itself and not the
administrative costs of running the program. Second, it is precisely the type of
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calculation held inappropriate in Luis M. – a per-unit cost calculation bearing no
relationship to the actual damages caused by the defendant.
DISPOSITION
The restitution order is affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
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