Filed 11/27/13 In re G.P. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re G.P., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent,

v. G.P., Defendant and Appellant. G047609

(Super. Ct. No. DL040846)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assist ant Attorney General, A. Natasha Cortina,2 Kristen Kinnaird Chenelia and Marissa Bejara no, Deputy Attorneys Ge neral, for Plaintiff and Respondent.

* * *

The court found that minor G.P. comm itted felony vandalism. (Pen. Code, § 594, subd. (a).) 1 The court declared him a ward under Welfare and Institutions Code

section 602 and ordered him to be committed to juvenile ha ll for 60 days, but stayed the commitment pending his successful completion of probation. On appeal minor contends that the court applied the wrong legal sta ndard in determining he committed felony

vandalism and that insufficien t evidence showed he caused damage in excess of $400.

We affirm.

FACTS

On June 21, 2012, minor used a base ball bat to break the window and door of his bedroom in the apartment rented by his mother (Regina Ramirez) and her husband (Ramon Davalos). Ramirez paid for the parts need to replace the window and door, and Davalos installed them. Their receipts showed th ey paid at least $166. 55 for parts. These receipts did not include any charges for paint, a door handle, door hinges, a door jam, or labor. Davalos spent around 20 minutes installing the door and 20 minutes installing the window. Ramirez spent around 30 minutes cleaning up the broken glass. Ramirez

believed the new door and window were not in ferior to the original door and window.

1 The court dismissed for insufficien t evidence an allegation minor possessed a weapon (a billy club). All further statut ory references are to the Penal Code unless otherwise stated.3 Joseph Poncino, the vice-president of construction for Saywitz Company (which owned and managed the apartment bu ilding), saw photos of the damaged door

and window. Poncino estimated the cost of repairing them would be approximately $500 to $600, but testified this was a “ballpark” es timate since he had not looked at the damage in person. Poncino — a licensed general contractor with 40 years of construction experience — had repaired doors, paid other people to repair doors, and estimated the cost of door repairs “hundreds of times.” At the minor’s apartm ent complex, he had repaired or paid for the repair of broke n doors and “plenty of windows,” including replacing eight or nine windows in th e complex in the last eight years.

The court found minor committed felony vandalism by causing damage exceeding $400. The court concluded that P oncino, as “the expert who replaces doors and windows on a regular basis” at the comp lex where Ramirez and Davalos rented an apartment, “has the most accurate cost of repair.” Th e court focused on the loss to the

owner of the property, and noted that the prop erty manager of the property estimated the loss to be between $500 and $600. The co urt found that Ramirez’s receipts did not include all the parts necessary to completely repair the damage.

DISCUSSION

The Court Applied the Corr ect Standard for Measuri ng Damage Under Section 594

Section 594 defines the crime of va ndalism. A person commits vandalism by maliciously defacing, damaging, or destroying someone else’s property. (§ 594, subd. (a).) If the “ amount of defacement, damage, or destruc tion” is at least $400, vandalism is punishable as a felony or a misdemeanor. ( Id. , subd. (b), italics added.) Although

section 594 uses the term “amount” of dama ge, the statute does not specify the test or standard for measuring it.4 Case law establishes that the “amount ” of damage within the meaning of

section 594 is the value of the damage. In People v. Farell (2002) 28 Cal.4th 381, 388, our Supreme Court stated that th e statutory use of “the word ‘ amount ’ may be understood

to refer to the value of an item.” (Italics added.) Farell specifically observed that

“‘amount’ refers to value ” for purposes of vandalism under section 594. ( Farell , at p. 389, italics added; see also In re Arthur V. (2008) 166 Cal.App.4t h 61, 68 [“The offense of vandalism, like that of theft, can be eith er a felony or misdemeanor depending on the value of property at issue”]; Sangha v. La Barbera (2006) 146 Ca l.App.4th 79, 89 [classification of vandalism turns on “value” of property dama ged or destroyed].) These cases, however, do not specify how the “valu e” of the damage is to be measured. Minor argues the victim’s out of pocket loss is the proper measure of damage, relying on the law of victim restituti on for support. He asserts the sole “point behind determining the amount of damages” is to ma ke the victim whole. The Attorney General contends the pr oper measure of damage is the fair market value of the repair or replacement. She relies on the law of theft for support, pointing out that fair market value is th e well-established standard for determining

whether theft constitutes grand or petty theft. The court, by adopting Poncino’s estima te of the cost of repair, impliedly applied a fair market value test for the amount of damage unde r section 594. In reviewing the court’s ruling, we in terpret section 594 de novo. ( People ex rel. Lockyer v.

Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) We begin by reviewing the relevant aspects of the law on restitution and grand theft which might prove instructive by analogy. Sec tion 1202.4 governs restitution and generally requires courts to impose a “separate and add itional restitution fine” on any convicted criminal defendant (§ 1202.4, su bd. (b)) who has caused a victim to suffer economic loss ( id ., subd. (f)). The amount of restitutio n must be based “on the amount of loss claimed by th e victim . . . or any other showing to the court .” ( Ibid ., italics added.)5 Reimbursable economic losses include full or pa rtial payment for the “value” of damaged property, measured as “the replacement cost of like property, or the actual cost of repairing the property when repair is possible.” ( Id. , subd. (f)(3)(A).) A restitution

award need not be limited to the lesser of the replacement cost or the actual cost of repair; rather, the “statute leaves the choice to the trial court.” ( People v. Stanley (2012) 54 Cal.4th 734, 738.) Minor ac knowledges that a court has di scretion to order restitution exceeding the actual cost of repair, but suggests we ignore this aspect of restitution law. He argues, “When it comes to assessing damage as an element of the crime, as opposed to a restitution award, there is no discretion involved.” As with vandalism, value is an element of theft. Grand theft is a theft of property valued at more than $950 (§ 487, subd. (a)) and is punishable as a felony or a misdemeanor (§ 489). A stolen property’s value is its “reasonable and fair market value” (§ 484, subd. (a)), “‘not the value of the pr operty to any partic ular individual’” ( People v. Lizarraga (1954) 122 Cal.App.2d 436, 438). “‘[F]a ir market value’ means the highest price obtainable in the market place rather th an the lowest price or the average price.” ( People v. Pena (1977) 68 Cal.App.3d 100, 104.) Fa ir market value may be established by expert testimony. ( Lizarraga , at p. 438.) When the evidence is in conflict on the issue of the stolen property’s value, the question is one for the fact finder. ( Ibid .) Grand theft is analogous to felony va ndalism with respec t to the issue at

hand because value is an elem ent of both crimes and determ ines whether the perpetrator may be punished as a felon. Consequently, the proper measure of section 594 damage is

the fair market value or fair market cost of the repair or replacement of the property. Minor’s attempt to limit the value of the damage he inflicted in this case to the out of pocket costs of his mother and her husband is unpersuasive. Punishment encompasses goals beyond victim compensation — e.g., deterrence, rehabilitation, retribution, and public protection. Although some of these goals may not apply to the juvenile justice system ( In re A.G. (2011) 193 Cal.App. 4th 791, 805), they are relevant to the6 interpretation of section 594. Restitution is si mply an “additional” form of punishing an offender. (§ 1202.4, subd. (b).) By its terms, section 594 does not limit a vandal’s punishment to victim compensation: a pers on who defaces propert y is subject to the punishment of keeping property free of graffiti for up to one year. ( Id. , subd. (c).) Our criminal justice system strives to punish an offender commensurately with the gravity of th e crime. (See, e.g., People v. Perez (1979) 23 Cal. 3d 545, 550-551 [purpose of § 654 is to insure that defendant’s punish ment will be commensurate with culpability].) Fair market va lue is an objective standard which is not subject to manipulation by the victim. (See People v. Simpson (1938) 26 Cal.App.2d 223, 229 [market value at time and place of larceny, not special value to owner of property stolen, is proper basis for proving property’s value].) Minor argues that using the test of the victim’s actual repair cost prevents “arb itrariness and uncertainty” and eliminates the need to have expert testim ony on the “‘reasonable repair cost.’” But the instant case illustrates the arbitrariness and uncertainty that can result when a victim is biased. The court found Ramirez to be an “extremely hostile” witness on the stand during direct examination. At the sentencing hearing, the court chided Ramirez and Davalos for coddling and covering for minor. Ramirez an d Davalos factored no labor into their estimate of the cost of repair; they also omitted the cost of some necessary parts. Minor acknowledges that a “victim unsympathetic to a minor or defendant could very well maximize the estimated repair cost.” Furtherm ore, the court found the actual victim here was the apartment owner, not the tenants Ramirez and Davalos. As to the need for expert testimony in any particular case, if the actual co st of repair is a reasonable sum, there may be no need for expert opinion on the subject. Finally, minor argues the vandalism st atute should be interpreted in his favor under the policy of lenity . But the “rule of lenity is invoked only when ‘“two reasonable interpretations of the same provision stand in re lative equipoise, i.e., that resolution of the statute’s ambiguities in a convincing manner is impracticable.’”7 [Citations.] We do not find reasonable the strained interpretation offered by defendant . . . .’” ( People v

. Farell , supra , 28 Cal.4th at pp. 394-395.)

Substantial Evidence Suppo rts the Court’s Finding the Damage Exceeded $400 Minor argues Poncino’s ballpark estim ate constitutes insufficient evidence of the cost of repairs. This argument requires us to determine “whether there is substantial evidence to support the conclusion of the trier of fact,” “not whether guilt is established beyond a reasonable doubt.” ( People v. Redmond (1969) 71 Cal.2d 745, 755.) We review the whole r ecord in the light most favorable to the judge’s finding. ( In

re Roderick P . (1972) 7 Cal.3d 801, 809.) To be s ubstantial, evidence must reasonably inspire confidence and be of solid value. ( Ibid. ) Poncino’s testimony provided substantia l evidence that the fair market value of the damage was between $500 and $600. Given Poncino’s 40 years of experience in the construction industry and his personal experience making or arranging for window and door repairs and replacemen ts at minor’s apar tment complex, his ballpark figure was no uninformed guess. Ponc ino was the representative of the property owner, who the court found was the victim in this case. “The testimony of the owner is competent and sufficient.” (2 Witkin & Epstein, Cal. Cr iminal Law (4th ed. 2012) Crimes Against Property, § 10, p. 33 [in theft cases].) Viewi ng the evidence in the light most favorable to the judgment, we conclude substantial evidence supported the court’s finding minor caused damage in excess of $400.8 DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.