Filed 12/16/13 In re Mark R. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re MARK R., a Person Coming Under 

the Juvenile Court Law.

 B244602

 (Los Angeles County

 Super. Ct. No. MJ20717)

THE PEOPLE,

Plaintiff and Respondent,

v.

MARK R.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Akemi 

Arakaki, Judge. Affirmed in part; reversed in part and remanded. 

Gerald Peters, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and 

Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________
2

Mark R. was declared a ward of the juvenile court and ordered to pay $14,443.03 

in restitution to the City of Lancaster after admitting he had committed two counts of 

graffiti vandalism with damage of $400 or more. On appeal Mark contends he received 

inadequate notice of the amount of restitution being sought, the restitution award was not 

properly calculated and the juvenile court abused its discretion in determining he had the 

ability to pay the restitution award. We conclude the restitution award was improper to 

the extent it required Mark to reimburse the City for economic losses that did not reflect 

its actual cost of removing Mark’s graffiti.1 Accordingly, we reverse in part and remand 

for further proceedings. 

FACTUAL AND PROCEDURL BACKGROUND

1. The Incidents of Vandalism and Delinquency Petitions

According to the probation report, Mark, then 15 years old, entered a vacant house 

owned by the City with three companions and dumped a bucket of paint on the fireplace, 

carpet and walls of various rooms. On different occasions Mark also “tagged” (spray 

painted graffiti) various items of public property. 

On June 12, 2011 two petitions were filed pursuant to Welfare and Institutions

Code section 6022 charging Mark with acts of vandalism against the City resulting in 

damage of $400 or more (Pen. Code, § 594, subd. (a)). The first petition alleged between 

March 17 and 24, 2011 Mark had defaced with graffiti a house owned by the City 

causing damage to a block wall, exterior stucco, patio door, screen door, interior and 

entry door, carpet, light fixtures, fireplace and window screens (count 1) and windows 

and dry wall (count 2). The second petition alleged between February 1 and February 22, 

 

1 The California Supreme Court has granted review in a similar case from this court 

in which we also invalidated a restitution award to the City of Lancaster using its 

restitution model. (Luis M. v. Superior Court (2012) 210 Cal.App.4th 982, review 

granted Feb. 13, 2013, S207314.)

2 Statutory references are to the Welfare and Institutions Code unless otherwise 

indicated.
3

2011 Mark had defaced with graffiti an electric box (counts 1, 3-5), a sign (count 2), a 

wall (count 6) and a trash container (count 7).

2. The Admissions and Disposition 

Mark admitted the first count of each petition, and the remaining counts were 

dismissed pursuant to a negotiated agreement. Mark also agreed to a Harvey waiver 

(People v. Harvey (1979) 25 Cal.3d 754), allowing the court to consider the dismissed 

counts in setting the amount of restitution. The court ordered Mark to remain a ward of 

the court, declared the offenses felonies, ordered Mark home on probation and scheduled 

a restitution hearing. 

3. The Restitution Hearing

At the restitution hearing the People sought $14,874.35 in victim restitution on 

behalf of the City. In support of their claim the People introduced a series of photographs

depicting the damage alleged in both petitions and two reports detailing the costs to the 

City resulting from Mark’s graffiti vandalism. The first report, prepared by Brian 

Schaumburg of Boardwalk Contractors, Inc., estimated $11,855.11 in repair and 

replacement costs for damage to the house as alleged in the first petition. 

The second report, prepared by Marleen Navarro, crime prevention officer for the 

City, estimated $3,019.24 in repair and replacement costs for damage to the seven items

of public property as alleged in the second petition. In a cover letter accompanying her 

report, Navarro stated she had computed the $3,019.24 in restitution by multiplying 

$431.32 (the City’s average cost per incident of graffiti removal) by seven (the number of 

graffiti incidents committed by Mark). The average cost of $431.42 per incident was 

based upon a restitution model of the total average cost to the City of graffiti abatement 

in 2006, which was included in Navarro’s report. The restitution model consisted of 

calculations of the individualized costs for (1) maintenance workers and law 

enforcement; (2) vehicles and graffiti cleanup equipment; (3) paint and cleaning supplies;

(4) contract services for tracking graffiti; (5) and traffic control and risk management 

costs. The sum of these costs was $1,380,208 in 2006; the number of calls for graffiti 
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removal that year was 3,200; the average cost per incident of graffiti removal, therefore, 

was $431.42. 

Mark’s counsel objected to the reports as inadmissible hearsay and argued they

lacked foundation because they had not been properly authenticated. The objections 

were overruled, and the reports were admitted into evidence. There was no testimony or 

other evidence introduced by the People or Mark. 

Following argument by counsel, the court concluded the total victim restitution 

owed to the City was $14,443.03, consisting of $11,855.11 for damage to the house and 

$2,587.92 for damage to six other items of public property.

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DISCUSSION

1. Mark’s Challenge to the Adequacy of Notice Has Been Forfeited

Mark contends he was not given proper notice of the City’s claim of $14,874.35 in 

restitution, explaining the probation report had estimated only $3,100 in repair costs for 

the house and $3,019.24 for the seven items of public property.

To preserve an issue for review on appeal, a defendant must interpose a specific 

and timely objection in the trial court on the same ground he asserts on appeal. (People 

v. Partida (2005) 37 Cal.4th 428, 434.) This general rule of forfeiture applies “‘to claims 

based on statutory violations, as well as claims based on fundamental constitutional 

rights.’” (People v. Romero (2008) 44 Cal.4th 386, 411.) Because Mark did not object at 

the restitution hearing that there was inadequate notice of the amount of restitution 

claimed by the City, he has forfeited this issue on appeal. (See People v. Fortune (2005) 

129 Cal.App.4th 790, 793-794; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071, 

fn. 3.)

 

3 Based on an independent review of the photographs, the juvenile court concluded 

it was unlikely Mark had been responsible for one of the tagging incidents alleged in the 

second petition.
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2. The Juvenile Court Did Not Abuse Its Discretion in Ordering $11,855.11 in

Restitution for Graffiti Damage to the Vacant House

Section 730.6 authorizes the juvenile court to award direct restitution from a minor 

to his or her victims for any economic loss suffered as a result of the minor’s conduct. 

(§ 730.6, subd. (a)(2)(B).) 

We review a restitution order for abuse of discretion. (In re Dina V. (2007)

151 Cal.App.4th 486, 490.) “No abuse of discretion will be found where there is a 

rational and factual basis for the amount of restitution ordered. ‘“[T]he standard of proof 

at a restitution hearing is by a preponderance of the evidence, not proof beyond a 

reasonable doubt.”’” (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.) The 

juvenile court is entitled to consider the probation report, and even a victim’s mere 

statement of loss included in a probation report is sufficient to establish prima facie 

evidence of loss. (Id. at p. 1543.) “Once the victim makes a prima facie showing of 

economic losses incurred as a result of . . . criminal acts, the burden shifts to the [minor] 

to disprove the amount of losses claimed by the victim.” (Ibid.)

The juvenile court acted within its discretion in ordering victim restitution in the 

sum of $11,855.11 to the City for the repair and replacement cost of the damage to the 

house. The court properly based its award on Schaumburg’s report, which itemized the 

damage to the interior and exterior of the house, the amount of time and labor it would 

take to repair the damage or to secure replacements, and the accompanying costs. This 

evidence was reliable and, although hearsay, admissible at the disposition phase of a 

delinquency proceeding. (In re Vincent G. (2008) 162 Cal.App.4th 238, 243.)

Although Mark argues on appeal that several items in Schaumburg’s report appear 

to involve the cost of repairs to the house based on damage caused by the misconduct of 

his confederates who vandalized the property with him (for example, smoke damage), 

rather than his own acts of graffiti, he did not challenge any aspect of the restitution claim 

on this ground in the juvenile court. Moreover, “That a defendant was not personally or 

immediately responsible for the victim’s loss does not render an order of restitution 

improper.” (In re I.M. (2005) 125 Cal.App.4th 1195, 1209.) “California courts have
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long interpreted the trial courts’ discretion to encompass the ordering of restitution as a 

condition of probation even when the loss was not necessarily caused by the criminal 

conduct underlying the conviction. . . . [R]estitution has been found proper where the 

loss was caused by related conduct not resulting in a conviction [citation], by conduct 

underlying dismissed and uncharged counts [citation], and by conduct resulting in an 

acquittal [citation]. There is no requirement the restitution order be limited to the exact 

amount of the loss in which the defendant is actually found culpable, nor is there any 

requirement the order reflect the amount of damages that might be recoverable in a civil 

action.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

3. The Award Based on the City’s Restitution Model Was Improper 

Section 730.6, subdivision (h)(1), provides a restitution award must be in an 

amount “sufficient to fully reimburse the victim . . . for all determined economic losses 

incurred as the result of the minor’s conduct.” When the minor’s conduct causes 

property damage, that amount is “the actual cost of repairing the property when repair is 

possible.” (Ibid.) This includes both the cost of the materials used in the cleanup and 

repair and the labor cost for public works personnel who clean up the graffiti. (See, e.g., 

In re Johnny M. (2002) 100 Cal.App.4th 1128, 1131, 1134.)

Several aspects of the City’s restitution model are improper in the absence of 

evidence that these items were actual economic losses suffered as a result of Mark’s 

vandalism (as opposed to generalized costs associated with vandalism endured in the 

aggregate by the City during 2006). In particular, there is no basis in the record before us 

for including in an award against Mark under section 730.6 costs associated with 

maintaining vehicles for graffiti abatement, contract services for tracking graffiti or 

traffic control and risk management costs. Accordingly, ordering restitution based on this 

restitution model was an abuse of discretion. 

4. The Court Properly Did Not Consider Mark’s Ability To Pay Restitution

Mark contends the juvenile court abused its discretion in failing to determine he 

had the ability to pay restitution. However, with respect to a victim restitution order (in 

contrast to a restitution fine), full restitution is required in the absence of compelling or 
7

extraordinary reasons, and a minor’s inability to pay is not to be considered by the court 

in determining the amount of restitution. (§ 730.6, subd. (h).) Accordingly, the court did 

not abuse its discretion in fixing the amount of restitution for losses arising out of Mark’s 

criminal conduct without regard for his ability to pay.

DISPOSITION

The order that Mark pay to the City $11,855.11 in victim restitution for repairs to 

the vacant house is affirmed. The order that Mark pay $2,587.92 in victim restitution for 

cleanup and repair of the other public property items is reversed and the cause remanded 

for a new restitution hearing to determine the amount of restitution to be awarded for 

those items in a manner consistent with the views expressed in this opinion. 

PERLUSS, P. J.

We concur:

ZELON, J. 

SEGAL, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.