People v. Santori ( 2015 )

Filed 12/18/15
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B262306
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. MA064238,
v. MA064646)
ANTHONY R. SANTORI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Eric P.
Harmon, Judge. Affirmed.
Theresa Osterman Stevenson, 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, Paul M. Roadarmel, Jr., and
David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
******
*
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of part 2 of the Discussion.
We affirm the trial court’s restitution order requiring defendant Anthony R.
Santori pay the City of Palmdale $18,878.23 in restitution for 32 incidents of graffiti.
This case is distinguishable from Luis M. v. Superior Court (2014) 59 Cal.4th 300(Luis M.) in which our Supreme Court held that no factual nexus existed between the
minor’s conduct and the juvenile court’s restitution order. Whereas in Luis M. the
restitution order was based only on the average cost for graffiti remediation, here the
People presented evidence of defendant’s specific acts, and that evidence was considered
in calculating the amount of restitution.
FACTS AND PROCEDURE
In addition to a history of vandalism, defendant had a prior sustained petition for
taking a vehicle without the owner’s consent. He also suffered a prior burglary
conviction. While on probation for vandalism and subject to search conditions, deputy
sheriffs observed graffiti on defendant’s cell phone depicting his moniker “Seor.”
Defendant admitted his moniker was Seor. The City of Palmdale (City) had abated
numerous incidents of graffiti depicting the name Seor and had retained photographs of
the abated graffiti. Defendant admitted that he was responsible for 36 of those incidents.
In case No. MA064238, defendant was charged with seven counts of vandalism.
In each count it was alleged that the damage was over $400. Defendant pled no contest
to one count of vandalism.
In case No. MA064646, defendant was charged with five counts of vandalism in
an amount over $400. Defendant pled guilty to one count, and agreed to pay restitution.
The prosecution requested $21,952 in restitution. Defendant objected to the
amount, and the court held a hearing.
At the restitution hearing, Ruth Oschmann, the City’s crime prevention officer
testified. She analyzed the City’s cost to abate the graffiti in defendant’s two cases. She
considered the costs of the cleanup crew, administrative costs, her salary, costs to hire a
deputy sheriff, and the cost of Graffiti Tracker. Graffiti Tracker is a computer software
program that the City pays to use. The City also pays the Los Angeles County Sherriff’s
Department a fee to hire a deputy to investigate the graffiti. Based on these costs
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Oschmann has developed a “per minute cost” to abate graffiti. She testified that it took
an average of 100 minutes to remove a piece of graffiti.
Oschmann reviewed the photographs of the graffiti drawn by defendant.
Oschmann clarified that the City was seeking compensation for 32 incidents even though
there were 70 or more total.1 Based on the photographs Oschmann concluded that 100
minutes was a reasonable estimate for each incident even though some of the items may
have taken less time and some more. Oschmann did not know the actual number of hours
spent cleaning up the 32 incidents of graffiti for which the City was seeking
compensation. Nor did she calculate the distance from the maintenance yard that the
cleanup crew was required to travel. Defendant did not identify any photograph
suggesting that the abatement time should have been less than average.
After reducing the requested investigative costs, the court awarded $18,878.23 in
restitution.
DISCUSSION
1. Substantial Evidence Supported the Restitution Award
“In 1982, California voters passed Proposition 8, also known as The Victims’ Bill
of Rights. At the time this initiative was passed, victims had some access to
compensation through the Restitution Fund, and trial courts had discretion to impose
restitution as a condition of probation. [Citations.] Proposition 8 established the right of
crime victims to receive restitution directly ‘from the persons convicted of the crimes for
losses they suffer.’ (Cal. Const., art. I, § 28, subd. (b).) The initiative added article I,
section 28, subdivision (b) to the California Constitution: ‘It is the unequivocal intention
of the People of the State of California that all persons who suffer losses as a result of
criminal activity shall have the right to restitution from the persons convicted of the
crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons
in every case, regardless of the sentence or disposition imposed, in which a crime victim
1
The record states both that there were 70 and that there were 77 incidents.
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suffers a loss, unless compelling and extraordinary reasons exist to the contrary.’”
(People v. Giordano (2007) 42 Cal.4th 644, 652.)
“Penal Code section 1202.4 provides for full restitution of victims’ economic
losses, but ‘does not authorize direct restitution for noneconomic losses.’” (People v.
Millard (2009) 175 Cal.App.4th 7, 26.) “At a victim restitution hearing, a prima facie
case for restitution is made by the People based in part on a victim’s testimony on, or
other claim or statement of, the amount of his or her economic loss. [Citations.] ‘Once
the victim has [i.e., the People have] made a prima facie showing of his or her loss, the
burden shifts to the defendant to demonstrate that the amount of the loss is other than that
claimed by the victim.’” (Ibid.)
We review the restitution award for abuse of discretion. (People v. Giordano,
supra, 42 Cal.4th at p. 663.) “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.”’” (Id. at
p. 666.) Relying on Luis M., supra, 59 Cal.4th 300, defendant argues the prosecution
failed to demonstrate a factual nexus between the restitution order and the damage caused
by defendant. As defendant argues the restitution statute for juveniles (Welf. & Inst.
Code, § 730.6) considered in Luis M. is substantially similar to the restitution statute at
issue here (Pen. Code, § 1202.4), making Luis M. relevant to this appeal. (See People v.
Birkett (1999) 21 Cal.4th 226, 240, fn. 15.)
In Luis M., supra, 59 Cal.4th 300, our Supreme Court considered the sufficiency
of the evidence of a restitution award for defacement by graffiti. In that case, a crime
prevention officer testified that the minor committed nine acts of graffiti in six locations.
(Id. at p. 303.) The crime prevention officer “did not produce photographs or otherwise
describe the graffiti except to note that it involved a traffic arrow sign and several
electrical boxes.” (Id. at pp. 303-304.) The crime officer had “no information” about the
costs associated to the minor’s conduct. (Id. at p. 304.) She testified that the city spent
$1,380,208 to abate 3,200 incidents at an average cost of $431.32 per incident. (Ibid.)
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As relevant here, our Supreme Court explained: “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.) “While the court
need not ascertain the exact dollar amount of the City’s losses . . . , its calculation . . .
must have some factual nexus to the damage caused by the minor’s conduct.” (Ibid.,
citations omitted.)
In Luis M., our high court concluded that the evidence before it was insufficient to
support the restitution order. (Luis M., supra, 59 Cal.4th at p. 309.) “[T]he 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.” (Ibid.)
While holding the evidence insufficient, the high court clarified that “the trial
court retains broad discretion . . . 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.” (Luis M., supra, 59 Cal.4th at p. 310.)
Here, Oschmann followed the foregoing mandate in Luis M. She was familiar
with graffiti abatement and established the average cost per minute to restore the defaced
surfaces. Although her conclusion that in this case the removal of the graffiti attributable
to defendant averaged 100 minutes, defendant did not challenge that conclusion with
reference to any act of graffiti. He did not identify any photograph that would support his
claim that the restitution order is unreasonable. In contrast to Luis M., here the crime
prevention officer considered the photographs depicting defendant’s graffiti when she
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calculated the cost to restore the defaced surfaces. Oschmann’s opinion was based on
defendant’s graffiti not just an average for removal of the city’s graffiti. The evidence
was sufficient to support the People’s prima facie burden, and defendant identified no
specific error in the amount.
2. The Reduction in Investigative Costs Was Reasonable*
Defendant describes the trial court’s reduction in the amount of restitution as a
“guesstimate” not rationally related to his conduct. (Capitalization and boldface
omitted.) For that reason, he argues the court abused its discretion in entering its
restitution order. We first provide additional background and then discuss defendant’s
argument.
Oschmann testified that the City pays for the Graffiti Tracker software and a
deputy sheriff. The court expressed concern that investigative costs had to be reasonable.
“I mean, they can’t hire a squad of 500 . . . Navy Seals . . . at the cost of . . . a million
dollars a seal and then pass that cost along.” The court also expressed concern that while
some of the investigative costs in Oschmann’s model were included in this case, some
were not. The court indicated it was considering a “reasonable reduction.” Defense
counsel asked the court to delete the costs for both the Graffiti Tracker and the
investigator. The court reduced the amount of investigative costs by half to reflect the
investigation conducted in this case.
The court’s reduction of investigative costs in this case was reasonable. The
reduction was related to the limited investigation necessary because defendant admitted
to 36 incidents of graffiti and admitted that his moniker was Seor. Nevertheless, there
were still costs associated with the investigation as the City had photographed the graffiti
prior to abating it and had used Graffiti Tracker to do this. A deputy sheriff showed
defendant the pictures, thereby securing defendant’s admission. Based on these
undisputed facts the court used a rationale basis to reduced the investigative costs sought
by the City. The trial court was not required to determine the exact amount the City
*
See footnote, ante, page 1.
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incurred in abating defendant’s graffiti. (Luis M., supra, 59 Cal.4th at p. 309.)
Defendant does not show the court abused its discretion in reducing the amount for the
investigation.
DISPOSITION
The restitution order is affirmed.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
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