People v. Cross CA5 ( 2022 )

Filed 9/14/22 P. v. Cross CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082774
Plaintiff and Respondent,
(Kings Super. Ct. No. 20CMS3804)
v.
JEROME LEE CROSS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Michael J.
Reinhart, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Cavan M.
Cox, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Poochigian, J. and Detjen, J.
INTRODUCTION
Appellant and defendant Jerome Lee Cross was convicted of one count of felony
vandalism exceeding $400, after he threw a rock and shattered the front glass door of the
Hanford Police Department. (Pen. Code, § 594, subd. (b)(1).)1 Vandalism is a felony if
the amount of the damages is $400 or more. (Ibid.) At trial, the court overruled defense
objections and permitted the prosecution to introduce evidence that the damages were
$598, based on $300 to temporarily board up the shattered glass door a few hours after
the vandalism, and $298 for the replacement safety glass that was installed three days
later. The jury found the damages resulting from defendant’s vandalism was $400 or
more, and he was sentenced to the second strike term of four years in prison.
On appeal, defendant renews the arguments he made at trial, that the actual
damage resulting from the vandalism of the glass door was limited to the replacement
cost of $298, and the temporary repair of $300 was an indirect cost and should not have
been considered by the jury, and his conviction must be reduced to misdemeanor
vandalism. We affirm.
FACTS
At approximately 3:00 a.m. on Sunday, August 2, 2020, Officer Rubalcava was in
her patrol vehicle and parked in the rear compound of the Hanford Police Department.
She received a dispatch that an act of vandalism had just occurred at the police
department’s front glass door entrance. The glass was broken out of the door frame, and
a rock that was “a little smaller than a football” was found inside the building.
Officer Rubalcava drove on Lacey Boulevard to look for the suspect and saw
defendant walking fairly quickly on the street. Defendant kept his head down, and he
was sweating profusely and breathing heavily. Rubalcava contacted defendant. He was
initially calm but became irate with another officer.
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
Officer Rubalcava arrested defendant and took him to the jail for booking. When
Rubalcava escorted him into the jail, defendant stumbled and needed assistance so he
would not fall. During the booking search, defendant was found in possession of a usable
amount of methamphetamine. When the drugs were found, defendant said, “[I]f I had
known that was there I would have smoked it already.”
It was stipulated to the jury that defendant threw the rock that broke the glass door.
The prosecution introduced invoices for the temporary repair and replacement of
the broken glass door. Erin Payne, owner and manager of Kings County Glass, testified
that on Sunday, August 2, 2020, the business performed “an emergency weekend board
up” on the damaged door at the police department. The business charged $300, which
Ms. Payne described as a reasonable price for an emergency boarding job performed on a
weekend.
David Lockwood, owner of Hanford Glass, testified that on Monday, August 3,
2020, he received a work order from the police department because “the glass had broken
out of the door that goes into the main door of the police department.” Lockwood
measured the frame and ordered the safety glass that was required to replace that door. It
took three days to get safety glass because it was not readily available. On August 6,
2020, Lockwood installed the safety glass. The cost to replace the glass door was $298,
which Lockwood described as a reasonable amount.
As will be explained below, the prosecution argued the actual damage to the door
was $598.
Defense
Defendant testified that he was self-employed and washed cars. Defendant had a
prior strike conviction from 2009.
At trial, defendant admitted he threw the rock through the police department’s
glass door and testified that he “did it for love.” Defendant explained that just before the
incident, he used his unemployment benefits to purchase a 2004 “shiny red” Cadillac
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CTS with a sunroof. “I was just in love with this car” and “it was the only thing in this
world that I loved.” He was homeless, he considered the car as his home, and his
possessions were stored in the car. His cousin told him not to drive the car until he
completed the registration process. He parked the car on 8th Street and walked to a
friend’s house.
Defendant testified that he felt that he needed to go back and check his car.
Around 3:00 p.m., he arrived at the location where he parked the Cadillac and found
police officers were “searching his car.” “I was like what are you doing with my car. So
they jammed me up, pulled me to the side, gave me the field sobriety test and – and the
sun was in my eyes so I turned like toward Harris Street … and [when] I turned toward
8th Street back to the car and when I was done with the sobriety test the car was gone,
they towed it. I got irate, irrational.”
According to defendant, the officers said they towed the car because of the
registration: “They told me I didn’t have registration for the car, and they don’t have to
tell me anything. I am not the owner – the registered owner of the car. And I was like, I
have the keys right here on my neck, and they was like that doesn’t matter, whatever. So
I was like I would like to file a [citizen’s complaint] … I will write your ass up … and
they was like whatever but your car is gone. So I didn’t know where the towing company
had it or anything like that the VIN numbers, anything to get it back and … everything
was in the car. My laptop, my phones, my jewelry, my money, clothes, everything….”
(Italics added.)
On further questioning, defendant admitted that one officer told him the car was
taken to Hanford Towing. Defendant did not go to the tow yard because it was too far
away.
Around 5:00 p.m., defendant walked to the Hanford Police Department to file a
citizen’s complaint. He entered the police department, and an officer was “really
aggressive” toward him. “[S]omeone at the door [said] you get out of here, you leave
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right now. And I was like I just want to file [a] … citizen complaint form. And they was
like, no, you leave right now, you cannot have a citizen complaint. I said, well, they took
my car, and he was like so what[,] you get out now, or you will be arrested. So I just
hung my head and I just bounced.”
Defendant testified that he stayed around the civic auditorium all night, “getting
high, whatever, just chilling, just trying to figure out what to do.”
“I don’t have my car, I have nothing. I didn’t have my EDD card in my
pocket. I didn’t have no money or nothing, so I don’t know, it just –
morning came and I was out of drugs I thought, and I was just wandering
around the streets and I seen the rock and I was like them bastards, they
took … the only thing I owned, the only thing I loved, they took it from me.
They ripped it from my heart. [¶] That is why I threw the rock through the
window. Something told me in my head do not do it, do not do it, and I
shook it off. I should have listened to that voice in my head. I should have
listened to that voice in my head, but I threw the rock and I am here.”
Defendant was arrested that night, and admitted an officer found drugs in his sock
when he was booked at the jail. Defendant testified that he was surprised the drugs were
in his sock, forgot he had the drugs, and did not realize he brought drugs into the jail: “I
sure wish I would have known, because I would have smoked that up.”
PROCEDURAL BACKGROUND
On September 9, 2020, an information was filed in the Superior Court of Kings
County charging defendant with count 1, felony vandalism exceeding $400, in that he
unlawfully and maliciously damaged and destroyed a glass door, real property which
belonged to the Hanford Police Department, in the amount of $400 and more (§ 594,
subd. (b)(1)), and count 2, bringing a controlled substance into the county jail (§ 4573,
subd. (a)); with one prior strike conviction (§§ 667, subds. (b)–(i), 1170.012, subds. (a)–
(d)).
On March 22, 2021, defendant’s trial began with motions. The court accepted an
agreement between the parties that defendant would stipulate he maliciously damaged the
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police department’s glass door, that amounted to at least a misdemeanor offense, with the
only disputed issue being the actual amount of damages; and the People would allow
defendant to testify about the motive for his actions, that was relevant as to count 2 and
whether he was so agitated and upset that he did not knowingly bring methamphetamine
into the jail. The court advised defendant of his constitutional rights and the impact of
the stipulation, and he waived his rights and agreed to stipulate to the misdemeanor
charge.
Preliminary Arguments About Damages
During a recess in the prosecution’s case, the court asked the parties for briefing
on how to calculate damages to determine whether count 1, vandalism, was a felony or
misdemeanor, whether the vandalism damages included the temporary placement of
boards over the broken doorway, or if the damages were limited to replacement cost of
the glass door.
Defense counsel argued that restitution statutes should be considered when
determining the value of damaged property for purposes of vandalism, and damages
under section 594 should be limited to “the actual cost of repairing damaged property –
with the repairs actual[ly] possible.” Counsel stated the People’s arguments about
aggregating the temporary repair and replacement costs were refuted by In re Kyle T.
(2017) 9 Cal.App.5th 707 (Kyle T.), that “goes to the proposition of actual cost that might
include the extraneous cost like boarding of the window, or before it gets repairs.” The
prosecutor replied the repairs in this case were properly aggregated because they resulted
from one act that damaged the glass door.
Motion to Dismiss the Felony Charge
After the prosecution rested, defense counsel made a section 1118.1 motion to
dismiss as to count 1, felony vandalism of $400 or more, and argued damages were only
$298 based on the cost to replace the glass door, and the charged felony offense must be
reduced to a misdemeanor pursuant to section 17, subdivision (b).
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The court stated the question was whether damages under section 594
encompassed “both the temporary repairs for the use of the wood placed in the door, and
those temporary repairs also be combined with the permanent repairs of the door through
the glass company … and aggregate those two figures to determine if the value exceeds
the $400 in the statute.” The court stated:
“[T]here [is] plenty of case law that supports aggregation of damages to
various items to reach the $400 limit so long as those items are damages
during the course of the same conduct. There is one item that was
damaged. While noting that the term damages in the statute may not be
coextensive with amounts of restitution that could be ordered in a sentence.
There was some language in the case of Luis M. v. Superior Court [(2014)]
59 [Cal.4th] 300, at page 405, that this Court finds [instructive]. And in
that case the value of the stolen property or damaged property shall be at a
replacement cost of the property or the actual cost of repairing the property
when repair is possible. The Court is of the opinion, and that is a good
definition also the term damages in [section] 594, and would adopt in
making the ruling that I will be denying the [section] 1118.1 motion,
because … the temporary placing of the wood in the door was an actual
cost of the repair, and in the process of repair. So I will allow the matter to
go to the jury.”
Defense counsel argued that actual damage resulting from the vandalism was “the
damage of the rock going through the glass,” that amount was $298, actual damage did
not include “additional economic loss” arising from the temporary repair, and the court
could not aggregate “economic loss” and “actual damage.” Counsel further argued the
People could not “bootstrap” the cost for the temporary repair because it was not
permanent. Counsel suggested there were other, less expensive options than temporarily
boarding the door, and an officer could have parked in front of the police department to
watch the entrance “until a glass company could come in immediately, then there
wouldn’t be this bootstrap.” Counsel questioned whether the chosen glass company was
the “most expeditious place to get the glass done” since it took three days to get the new
door.
7.
The court stated the question for a section 1118.1 motion was whether there was a
“sufficient factual basis to warrant it to go to the jury for determination. The Court reads
and is holding that a reasonable jury on its facts to find that it was a process of repair as
opposed to distinct repairs … it means it goes to the jury. Whether it is beyond a
reasonable doubt it up to them. You can argue … the reasonableness of the cost.”
Defense counsel again argued that damages for purposes of vandalism was limited
to the actual repair cost “for a rock going through that glass door,” and the police
department should bear the cost if it lost money by having the door boarded up for three
days.
The court disagreed and stated the question was “what is the injury to the victim,
because it is punishment that this element [of damages] goes to.” The court again denied
the section 1118.1 motion, and also denied the defense motion to reduce the felony to a
misdemeanor, without prejudice to raising the motion later.
Prior to closing argument, the prosecutor asked the court to prohibit the defense
from arguing to the jury “whether the amount of value being $400 or more is a felony as
opposed to a misdemeanor.” The court ordered that the parties could not discuss the
issue of punishment in closing argument, and the jury could not consider punishment in
this case. The jury received a special verdict form to find whether the damages were
greater or lesser than $400, but the jury was not advised that the amount of damages
would determine whether defendant was convicted of a felony or a misdemeanor.
Instructions
As to count 1, vandalism, the jury was instructed with CALCRIM No. 2900 on the
elements of the offense.
“To prove the defendant is guilty of this crime the People must prove that:
[¶] One, the defendant maliciously damaged real property. [¶] And two,
the defendant did not own the property. [¶[ Someone acts maliciously
when he intentionally does a wrongful act, or when he acts with the
unlawful intent to annoy or injure someone else.”
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The court also gave CALCRIM No. 2901:
“If you find the defendant guilty of vandalism in Count 1, you must decide
whether the People have proved that the amount of damaged caused by the
vandalism was $400 or more. [¶] The People have the burden of proving
this allegation beyond a reasonable doubt. If the People have not met this
burden, you must find that this allegation has been proved.” (RT 924)
Closing Arguments
As to count 1, the prosecutor reminded the jury that defendant admitted he
damaged the property and acted with malicious intent, and “the question is whether or not
the damage was greater than $400.” “The case law is clear, what was the replacement
cost or the actual cost of replacement property. What that means is what was the cost to
the Hanford Police Department.” The prosecutor cited the testimony of the witnesses
from the two glass companies – that $300 was a reasonable charge for the “emergency
board up” on a Sunday, and $298 was a reasonable price for the safety glass required to
replace the door – and argued the actual cost of the damage resulting from defendant’s
vandalism was $598. “The board up was part of the [re]placement cost, it was part of the
repair. The Judge earlier told you don’t forget your common sense…. What is inside of
a Police Department? Can they leave the front door broken for really for any period of
time? They had to board it up and that is part of the cost of the repair or cost of the
replacement property. And the construction of the matter is what is the injury to the
victim. Here the victim was the Hanford Police Department. The amount of damages,
the injury to the Hanford Police Department was $598.”
In her closing argument, defense counsel acknowledged defendant admitted he
broke the glass door, but “the issue is the actual amount of damage” to the police
department, and not the “actual cost.” Defense counsel argued the actual amount of
damage to the glass door was $298, based on the cost to replace the door. Defense
counsel agreed that the police department had to board up the broken door but argued that
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represented an “extraneous cost” that could not be considered part of the actual damage
to the door.
In rebuttal argument, the prosecutor replied the question was the “actual amount of
damage caused by the vandalism” to the police department’s door, and that amount was
what the police department actually spent as a result of defendant’s vandalism. There
was no evidence of any extraneous costs aside from boarding up the broken door until the
new glass was installed. “You aggregate this one act that happened. He threw a rock
through the door, and the actual costs to the Hanford Police Department based on
[defendant’s] actions was [$]598. And so, yes, I do get to add up the damage, because it
was the actual cost to them.”
VERDICT AND SENTENCE
On March 23, 2021, the jury found defendant guilty of count 1, felony vandalism,
and made a separate finding that the amount of damage caused by the vandalism was
more than $400.
The jury also found the prior strike conviction true. Defendant was found not
guilty of count 2, bringing methamphetamine into jail.
Motion to Reduce the Conviction
On May 10, 2021, the court held the sentencing hearing. Defense counsel
renewed the motion to reduce count 1, felony vandalism, to a misdemeanor pursuant to
section 17, subdivision (b), based on her previous arguments that the actual damage from
the vandalism was only $298. The prosecutor again argued that the cost of the
“emergency board up” of the broken door was part of the actual damages resulting from
the vandalism because any business, even if not the police department, would have to
protect the interior if the front door was broken, and defendant should not get a
“windfall” because the actual cost for the repair was in two segments. Defense counsel
replied that if the police department kept “an extra glass door in their storage room, the
actual cost would be [$]298.”
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The court stated that it previously ruled the cost of the temporary repairs could be
considered by the jury to determine whether the damages exceeded $400, but it had not
decided “one way or another that it did or did not, I made a ruling that it could be
considered because under one theory it could be considered a continuing process of
repairs. And … both sides argued that issue before the jury.”
The court denied defendant’s motion to reduce the felony conviction to a
misdemeanor because “[t]he jury did determine that it was part of the damages.”
Sentencing
Defense counsel argued defendant should receive the mitigated term since he
admitted guilt. The court acknowledged defendant’s stipulation but found defendant’s
prior criminal record was significant and decided to impose the midterm of two years,
doubled to four years as the second strike sentence.
The court imposed a restitution fine of $300 (§ 1202.4, subd. (b)) and stayed the
parole revocation fine in the same amount (§ 1202.45); imposed the court facilities
assessment of $30 (Gov. Code, § 70373) and the court operations assessment of $40
(§ 1465.8); and also ordered victim restitution of $598 to the City of Hanford and the
Hanford Police Department (§ 1202.4, subd. (f)).
On May 11, 2021, appellant filed a notice of appeal.
DISCUSSION
Defendant contends his conviction for felony vandalism is not supported by
substantial evidence that the amount of actual damage was $400 or more, and the
conviction must be reduced to a misdemeanor. Defendant argues that valuation of actual
damage from vandalism is limited “to ‘direct’ abatement costs, determined by the cost of
repair,” and that amount was limited to $298 to replace the damaged glass door.
Defendant asserts the trial court improperly permitted the jury “to consider the additional
$300 cost to board up the door pending actual repair,” but that amount “served only to
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secure the premises, not to repair the door,” and was “an ‘indirect’ economic loss” and
could not be considered to determine actual damage for felony vandalism.
Defendant concludes that “only direct abatement costs may be included in the
valuation. Indirect costs, while recoverable as restitution, are not included. Boarding the
door to secure the premises pending actual repair is an indirect cost; therefore, it does not
raise the valuation” of actual damage, and his vandalism offense was not a felony.
I. Standard of Review
In considering a challenge to the sufficiency of the evidence, “[t]he standard of
review is well settled: On appeal, we review the whole record in the light most favorable
to the judgment below to determine whether it discloses substantial evidence – that is,
evidence that is reasonable, credible and of solid value – from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citations.] If the verdict
is supported by substantial evidence, we must accord due deference to the trier of fact and
not substitute our evaluation of a witness’s credibility for that of the fact finder.” (People
v. Koontz (2002) 27 Cal.4th 1041, 1078.) “A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support” ’ the jury’s verdict.” (People v. Zamudio (2008)
43 Cal.4th 327, 357.)
While defendant has raised this issue as one of substantial evidence, he is
effectively arguing the trial court incorrectly interpreted section 594 to permit the jury to
consider “indirect” costs to determine if the actual damages resulting from his vandalism
was $400 or more, so that offense was a felony. To the extent defendant raises questions
of statutory interpretation, we review the issue de novo. (See, e.g., John v. Superior
Court (2016) 63 Cal.4th 91, 95; People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)
II. Vandalism
Section 594 states: “Every person who maliciously commits any of the following
acts with respect to any real or personal property not his or her own, in cases other than
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those specified by state law, is guilty of vandalism: [¶] (1) Defaces with graffiti or other
inscribed material. [¶] (2) Damages. [¶] (3) Destroys.” (§ 594, subd. (a).)
If the amount of the “defacement, damage, or destruction” is $400 or more, the
offense is punishable as a felony or a misdemeanor. (§ 594, subd. (b)(1).) If such
amount is less than $400, the offense is only punishable as a misdemeanor. (Id. at
subd. (b)(2)(A).)
Whenever a person violates this provision with respect to property belonging to a
public entity, “it shall be a permissive inference that the person neither owned the
property or had the permission of the owner to deface, damage, or destroy the property.”
(§594, subd. (a).)
III. Calculation of Vandalism Damages
Section 594 “does not itself specify a method for proving the amount of property
damage in a vandalism prosecution….” (Kyle T., supra, 9 Cal.App.5th at p. 713.) The
cases interpreting section 594 have focused on the amount of defacement, damage, or
destruction, and calculated that amount as the actual or estimated cost of repair. (See,
e.g., In re A.W. (2019) 39 Cal.App.5th 941, 950 (A.W.); Kyle T., supra, 9 Cal.App.5th at
pp. 713–714; People v. Carrasco (2012) 209 Cal.App.4th 715, 718, reversed on other
grounds in People v. Whitmer (2014) 59 Cal.4th 733, 740–742 [a defendant may be
convicted of multiple counts “based on separate and distinct acts of theft, even if
committed pursuant to a single overarching scheme”].)
These cases have relied on the restitution analysis in a vandalism case, Luis M. v.
Superior Court, supra, 59 Cal.4th 300 (Luis M.), for guidance on the calculation of
damages to determine if a violation of section 594 was felony or misdemeanor vandalism.
Luis M.
In Luis M., supra, 59 Cal.4th 300, a minor defaced six locations with nine acts of
graffiti. At the restitution hearing, an officer used a five-year-old cost model to estimate
the city’s annual graffiti abatement costs, that included labor and material costs for both
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investigation and removal of graffiti. The officer compared that cost model to the city’s
annual expenditures, calculated the city’s average outlay per graffiti incident, and then
multiplied that figure by the minor’s nine instances of graffiti to arrive at the total amount
of loss. (Id. at pp. 304, 309–310.) The officer offered “no information about the actual
abatement costs related to [the minor’s] conduct.” (Id. at p. 304.) The juvenile court
ordered restitution in the amount of $3,881.88, based on the officer’s testimony. (Ibid.)
Luis M. reversed the restitution order because it “was not based on sufficient
evidence that the amount of claimed loss was a result of [the minor’s] conduct.” (Luis
M., supra, 59 Cal.4th at p. 303.) Luis M. cited the general restitution statute applicable to
juvenile offenders, noted it was “ ‘parallel’ ” to section 1202.4’s restitution provisions for
adult offenders, and that it limited restitution to “ ‘economic losses incurred as the result
of the minor’s conduct,’ ” such as “ ‘the actual cost of repairing the property when repair
is possible.’ ” (Luis M. at p. 304; id. at p. 305, italics added in original.)
Luis M. held the restitution award may include “the materials, equipment, and
labor costs incurred for remediation,” as well as “[p]reexisting expenditures, such as
salaried employees and equipment purchases, … 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.) While a court awarding restitution “need not ascertain the exact dollar amount of
the [c]ity’s losses” (ibid.) and “retains broad discretion … to estimate the material,
equipment, and labor costs necessary to repair the damage caused by a discrete act of
graffiti,” (id. at p. 310) the calculation “must have some factual nexus to the damage
caused by the minor’s conduct.” (Id. at p. 309.) Luis M. held the city’s restitution model
did not reflect the actual or estimated costs to clean up the graffiti caused by the minor’s
conduct. (Id. at p. 303; cf. People v. Hurtado (2019) 35 Cal.App.5th 871, 879–880 [trial
court’s determination of restitution for vandalism conviction had sufficient factual nexus
to damage caused by defendant’s act, since it applied the standard cost to abate graffiti to
the square footage and surface type actually damaged by defendant’s acts].)
14.
Kyle T.
In Kyle T., supra, 9 Cal.App.5th 707, a minor was alleged to have committed one
count of felony vandalism based on graffiti defacement. At the juvenile hearing, an
officer testified about the amount of damages, based on a single-page “ ‘graffiti removal
cost list’ ” prepared by an unknown author, that generally summarized the costs of
removing graffiti in that area, but without reference to the specific acts committed by the
minor. (Id. at pp. 710–711.)
Kyle T. reversed the juvenile court’s adjudication for felony vandalism and held
the People failed to present substantial evidence that was specific to the minor’s acts of
vandalism to establish that the actual amount of damage caused by the minor’s act
reached the felony threshold of $400. (Kyle T., supra, 9 Cal.App.5th at p. 709.) Kyle T.
acknowledged that section 594 did not specify the method to calculate damages to
determine felony vandalism and held Luis M.’s discussion of restitution was appropriate
to determine damages in a vandalism case. (Kyle T., at p. 716.)
“[S]ection 730.6, subdivision (h) of the Welfare and Institutions Code
‘authorizes full restitution for economic losses, including “the actual cost
of repairing [damaged] property when repair is possible.” [Citation.]
Awards under [Welfare and Institutions Code] section 730.6 are based on
proof of the damage actually linked to the minor’s conduct ....’ [Citation.]
This method for determining restitution arising from the abatement of
juvenile vandalism ‘parallel[s]’ the method for determining restitution
arising from the abatement of adult vandalism set forth in Penal Code
section 1202.4, subdivision (f).” (Id. at p. 713.)
Kyle T. noted that section 1202.4 similarly defined restitution in adult criminal
cases as the amount to fully reimburse the victim for every determined economic loss
“ ‘incurred as the result of the defendant’s criminal conduct’; the ‘value of … damaged
property shall be … the actual cost of repairing the property when repair is possible.’ ”
(Kyle T., supra, 9 Cal.App.5th at p. 713, citing § 1202.4, subd. (f)(3)(A); see also People
v. Stanley (2012) 54 Cal.4th 734, 737.)
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Kyle T. further held that under the “ ‘actual cost’ ” method, “the amount of the
award ‘must have some factual nexus to the damage caused by the [juvenile’s]
conduct.’ ” (Kyle T, supra, 9 Cal.App.5th at p. 716.) Based on that standard, Kyle T.
held the juvenile court’s felony vandalism finding was not supported by substantial
evidence because the officer’s recitation of the average cost of graffiti removal, based on
a generic, one-page cost list, was an unacceptable method of proving the amount of
damage from the minor’s specific acts of vandalism. (Id. at p. 709.) “The most obvious
way for the People to prove that [the minor] committed felony vandalism would have
been to introduce at the adjudication hearing an invoice setting forth the actual cost of
repairs to the two properties. No such evidence was introduced.” (Id. at pp. 713–714.)
Kyle T. suggested “a contractor’s estimate of the cost to repair the actual damage that [the
minor] caused might have sufficed, … assuming proper authentication and foundation.
But the People afforded no such estimate either.” (Id. at p. 714; see also People v.
Carrasco, supra, 209 Cal.App.4th at pp. 717–718 [the defendant’s conviction for felony
vandalism affirmed based on actual cost to repair broken windows in a house and car,
destroyed by the defendant’s multiple acts of vandalism pursuant to a single intent].
In A.W., supra, 39 Cal.App.5th 941, a juvenile court found true five allegations of
felony vandalism resulting from the minor’s graffiti defacement, and that the amount of
actual damage exceeded the $400 felony threshold. A.W. reversed the findings, relied on
Kyle T. and Luis M., and held that average cleanup costs for graffiti could not be used to
prove the actual damage caused by the minor’s vandalism because “[t]he use of an
average, or arithmetic mean, recognizes that cleanup costs for some graffiti is less than
the average, and the cleanup costs for other graffiti exceeds the average. The average
cleanup cost is untethered to the actual damage caused by minor.” (A.W., supra, 39
Cal.App.5th at p. 945.)
A.W. also held the juvenile court’s calculation of damages for felony vandalism
improperly included “the cost of law enforcement, which, though proper in certain
16.
restitution settings, was not a proper consideration in assessing the damage [the] minor
inflicted under section 594.” (A.W., supra, 39 Cal.App.5th at p. 945.) In doing so, A.W.
relied on Luis M.’s discussion of the restitution statutes and distinguished between actual
and indirect costs. (A.W., at p. 950.)
“[Welfare and Institutions Code section 730.6] … permits recovery of the
‘actual cost of repairing the property .…’ [Citation.] Similarly,
section 594 requires the People to prove the amount of ‘defacement,
damage, or destruction,’ which we interpret to include the cost of repairing
or replacing the vandalized property. While the two statutes are different in
that the burden of proof is much higher under section 594, they cover
roughly the same categories of costs. What makes Luis M. instructive is
that in the context of Welfare & Institutions Code section 730.6, our high
court held that law enforcement costs are not recoverable: ‘These general
provisions do not authorize restitution orders for law enforcement
investigative costs. [Citations.] “Under the relevant case law and the
statutory scheme, public agencies are not directly ‘victimized’ for purposes
of restitution under Penal Code section 1202.4 merely because they spend
money to investigate crimes or apprehend criminals.” ’ [Citation.] Instead,
restitution is limited to the cost of repair, replacement, or restoration –
these ‘direct abatement costs’ do ‘not include the costs of investigation.’
[Citation.] Given the similarities in the recoverable categories of costs,
investigative costs also cannot be included in the damage calculation under
section 594.” (Ibid., italics added.)
IV. Analysis
In this case, the court’s decision to permit the jury to consider the prosecution’s
evidence of the costs for both the “emergency board up” and replacement of the glass
door was appropriate under section 594. We agree with the analysis in Kyle T., based on
the discussion in Luis M., that damages for the purpose of determining felony vandalism
is based on the actual cost of repairing the property when repair is possible. (Kyle T.,
supra, 9 Cal.App.5th at p. 713.) To the extent that defendant challenges the court’s
decision as a question of law, we agree with A.W. that the cost of repair, replacement or
restoration are direct abatement costs that may be included in the damage calculation
under section 594. (A.W., supra, 39 Cal.App.5th at p. 950.)
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We further conclude there is substantial evidence to support the jury’s finding that
the damages resulting from defendant’s vandalism exceeded $400, based on $300 for the
temporary “emergency board up” and $298 for the permanent replacement of the glass
door. We reject defendant’s attempt to characterize the “emergency board up” as an
“indirect” cost that must be excluded from the calculation of damages resulting from his
act of vandalism. Defendant shattered the glass door at approximately 3:00 a.m. on a
Sunday. The very timing of his act precluded any possibility the door could be
immediately replaced. Under the circumstances, the temporary placement of boards
would be necessary to secure the damaged main entrance to any structure, whether a
business or a residence, and ensure the occupants remained safe, and the contents were
not subject to theft, destruction, or further vandalism, until a replacement door was
installed. In this case, there was even more urgency to immediately and temporarily
secure the front entrance since defendant’s vandalism damaged the glass entrance to a
police department.
The police department’s retention of Kings County Glass to temporarily install
boards over the damaged front entrance was part of the direct and actual costs resulting
from defendant’s vandalism. It was part of the process set in motion by defendant’s
conduct, and necessary to secure the department’s front entrance on a Sunday, until the
glass door could be permanently replaced. There was thus substantial evidence to
support the jury’s finding that the damages from the vandalism exceeded $400, since
securing the building’s entrance immediately after the vandalism was a direct,
reasonable, and actual cost of the process to permanently repair the door.
In contrast to Kyle T. and A.W., the prosecution’s evidence of the amounts charged
by the two glass companies was based on testimony about the actual costs of the
materials and services required to temporarily repair and permanently replace the actual
damage resulting from defendant’s vandalism of the glass door, and not based on
speculative averages or estimates unrelated to the actual damage.
18.
While defendant suggests the police department could have used another glass
company or a less expensive method to repair or monitor the shattered door, he never
introduced any evidence to undermine the reasonableness of Kings County Glass’s
charge of $300 for the emergency “board up” job on a Sunday, Hanford Glass’s charge of
$298 for the requisite safety glass, that safety glass was required for the police
department’s front entrance, or that three days were required to obtain delivery of the
safety glass.
DISPOSITION
The judgment is affirmed.
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