People v. Hurtado

Hurtado opposed the amount of restitution the City requested, arguing in his restitution brief that the amount claimed by the City was not based on the actual damages caused by Hurtado but instead, on a generalized and non-case specific restitution estimate. Specifically, he stated the $3.39 cost per square foot did not consider the specifics of Hurtado's graffiti, such as the method of creating the graffiti, the surface the graffiti was on, the materials used to abate, or the manpower used for abatement. Hurtado also maintained that the sole factor considered by the City's damage estimate was square footage, which was "highly subjective." Hurtado thus requested the court order restitution in the amount of $963.78 and submitted a chart explaining how he calculated the requested amount.

In response, the People filed a supplemental brief, arguing there was a sufficient factual nexus between the City's calculations and Hurtado's acts of graffiti.

The court subsequently held a restitution hearing. The People submitted on the preliminary hearing transcript, which the court took judicial notice of and admitted into evidence.

Relevant here, P.H., a supervising management analyst for the City, testified at the preliminary hearing. He explained that graffiti on City property is abated by in-house utility workers while graffiti on private property is abated by Urban Corps, a nonprofit organization that had a contract with the

After the witnesses finished testifying, the court admitted into evidence a seven-page Graffiti Tracker D.A. Report of each alleged graffiti incident attributable to Hurtado. The report listed the total restitution amount as $3,112.02, consisting of $1,444.14 to abate count 1, $474.60 to abate count 2, $847.50 to abate count 3, $84.75 to abate count 4, $135.60 to abate count 5, $40.68 to abate to count 6, and $84.75 to abate count 7. For each alleged incident, the report included a photograph of the graffiti, the square footage, the name of the person who completed the abatement, the date, and the time.

long as there is a rational basis for that restitution order."

The court further explained:

"The essential purpose of restitution is for the court to attempt, as much as possible, to make the victim whole. Obviously the court is not interested in providing a windfall to any victim, but, on the other hand, the court has to make a reasonable attempt to restore whatever the victim has lost as a result of the defendant's crime. And it is-all this is because the defendant committed a crime."

The California Supreme Court determined the restitution award "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, 173 Cal.Rptr.3d 37 , 326 P.3d 969 .) It explained that the general restitution statute applicable to juvenile offenders, which it noted was " 'parallel' " to section 1202.4 at issue in the instant case (see Luis M. , at p. 304, 173 Cal.Rptr.3d 37 , 326 P.3d 969 ), limits restitution to " 'economic losses incurred as the result of the minor's conduct ' " ( id. at p. 305, 173 Cal.Rptr.3d 37 , 326 P.3d 969 ) such as " 'the actual cost of repairing the property when repair is possible.' " ( Ibid. ) The award may include "the materials, equipment, and labor costs incurred for remediation" ( id. at p. 309, 173 Cal.Rptr.3d 37 , 326 P.3d 969 ), 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." ( Id. at p. 309, 173 Cal.Rptr.3d 37 , 326 P.3d 969 .) While a trial 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, 173 Cal.Rptr.3d 37 , 326 P.3d 969 ), its calculation "must have some factual nexus to the damage caused by the minor's conduct." ( Id. at pp. 309, 310, 173 Cal.Rptr.3d 37 , 326 P.3d 969 .) Because the city's restitution model did not reflect the actual or estimated costs to clean up the graffiti caused by the minor's conduct, the court affirmed the opinion of the Court of Appeal to vacate the restitution order. ( Id. at p. 303, 173 Cal.Rptr.3d 37 , 326 P.3d 969 .)

Contrary to the facts in Luis M. , in the instant action, the trial court's determination had "some factual nexus to the damage caused" by Hurtado's criminal acts. As the People point out, at the restitution hearing, they

In addition, our conclusion does not change when we consider Kyle T. In that case, the minor challenged the sufficiency of the evidence to support his charge of felony vandalism, which required at least $400 in damage. ( Kyle T. , supra , 9 Cal.App.5th at p. 709, 215 Cal.Rptr.3d 433 .) The court determined that the evidence did not support the juvenile court's finding of felony vandalism. ( Id. at p. 713, 215 Cal.Rptr.3d 433 .) In addition, the court remarked that the evidence failed to satisfy the use of average costs in calculating victim restitution. ( Id. at p. 717, 215 Cal.Rptr.3d 433 .)

However, the evidence relied upon the by People in Kyle T. was de minimis. In fact, the only evidence of damages was a police department "graffiti removal cost list." ( Kyle T. , supra , 9 Cal.App.5th at p. 711, 215 Cal.Rptr.3d 433 .) The testifying officer, who based his damages estimate exclusively on this list ( id. at p. 715, 215 Cal.Rptr.3d 433 ), admitted that he did not prepare it, could not identify who did, could not explain how the costs on the list were determined, and did not know the cost of materials or the number of people needed to make repairs. ( Id. at p. 711, 215 Cal.Rptr.3d 433 .) The People did not offer the list, photographs of the graffiti, or any other documentation in evidence. ( Id. at pp. 711, 715, 215 Cal.Rptr.3d 433 .) Essentially, the People argued that every incident of graffiti costs $400 to remove, regardless of its specific characteristics. The "generic, one-size-fits-all removal cost of $400 for every incident of graffiti on [c]ity-owned property" did not suffice because it was a "non-case-specific damages estimate, not an estimate tethered to the facts of [the minor's] vandalism." ( Id. at p. 714, 215 Cal.Rptr.3d 433 .) Here, the City did not utilize a formula that attributed the same cost to remove every incident of vandalism like the one used in Kyle T. Thus, Kyle T. is not instructive.

Although we find this case to be distinguishable from both Luis M. and Kyle T. , we conclude that the method used by the City to calculate victim restitution here compares favorably with the method that passed muster in Santori , supra , 243 Cal.App.4th 122 , 196 Cal.Rptr.3d 500 .

In the instant action, the calculation used by the City is like the one used in Santori . Here, the City established the average cost per square foot to abate graffiti and multiplied that number by the total square footage of Hurtado's incidents of graffiti. This is similar to the method the court found sufficient in Santori , wherein the city estimated that each incident of graffiti would require 100 minutes to abate and then multiplied the 32 incidents by the 100 minutes and by the per-minute cost of abatement to arrive at an estimated restitution amount.

Nevertheless, Hurtado asserts that we should not follow Santori , supra , 243 Cal.App.4th 122 , 196 Cal.Rptr.3d 500 because he presented evidence that called into question the calculations used by the City, and the defendant in Santori did not do so. Although we agree that Hurtado presented evidence challenging the City's methodology, we stop short of concluding that he disproved the amount of loss claimed by the City as he asserts. During the restitution hearing, Hurtado's counsel asked P.H. to calculate abatement costs based on an assumed amount of time it would take to abate the graffiti multiplied by the hourly wages of the workers abating the graffiti. Yet, as P.H. noted at the hearing, counsel's suggested method did not consider various other expenses,

According to P.H., the City uses Sales Force, an app, to track all graffiti removed in San Diego. 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, and the removal method. The individual also includes the total square footage of damage. The information contained in Sales Force is then entered into a graffiti tracking program called Graffiti Tracker. Graffiti Tracker can generate a "D.A. Report" that details all information about a specific graffiti incident. Additionally, the report includes the estimated cost of abatement for each incident, which is automatically calculated using a cost per square foot

After the close of evidence, the People argued that the City's method of calculating the restitution amount did not run afoul of Luis M. , supra , 59 Cal.4th 300 , 173 Cal.Rptr.3d 37 , 326 P.3d 969 . She noted there was a sufficient nexus here because photographs of each incident were introduced, which indicated with some specificity the method of abatement. She also argued the amount properly included administrative costs and other overhead. The prosecutor emphasized that P.H. had explained that the requested amount was an underestimate because it was based on the 2016 fiscal year cost per square foot rather than that for 2017.

Hurtado's counsel asserted that P.H. was not a graffiti abatement expert, noting that he did not perform abatements or know the number of hours or equipment abatement required. Counsel further contended that the City's method of calculation violated the requirements set forth in Luis M. , supra , 59 Cal.4th 300 , 173 Cal.Rptr.3d 37 , 326 P.3d 969 . Hurtado's counsel stated that calculating square footage is "only one factor among many that [the City] could have considered" in calculating restitution, but asserted that when the City's method is challenged by a defendant with evidence that could raise a question regarding the initial estimate of the amount, the court should consider the evidence and methodology provided by the defendant to ascertain whether the City's estimate was rational. Ultimately, counsel argued the appropriate amount of restitution was $963.78.

After considering the evidence and entertaining oral argument, the court stated:

"I'm not going to engage in any specific calculations. It's a fool's errand, in my opinion, to try to figure out exactly what was spent on a particular cleanup job when there are no invoices and this is all based on projections, estimates, and the like. [¶] I think it's important to remember that the essential law of restitution gives extremely broad almost unfettered discretion to courts to set restitution so

"Square footage is one factor, but I can't say it's an irrational factor where it's impossible to calculate the exact cost of labor, the time it takes, the surface-I mean, there are so many variables involved in this type of remedial activity, it would be impossible in any given case absent specific invoices from contractors to calculate the exact amount of loss."

Ultimately, the court determined that Hurtado was to pay victim restitution in the amount of $3,000.

Hurtado timely appealed.

DISCUSSION

Under 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." (§ 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 because of graffiti vandalism. (§ 1202.4, subd. (k)(5).)

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. ( In re Dina V. (2007) 151 Cal.App.4th 486 , 489, 59 Cal.Rptr.3d 862 .) "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, 196 Cal.Rptr.3d 500 ( Santori ).)

The defendant contended that the evidence underlying the order was insufficient to establish the "factual nexus" required