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In re A.W.

California Court of Appeals, Fourth District, Third Division

September 12, 2019

In re A.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,
A.W., Defendant and Appellant.

          Appeal from a judgment of the Superior Court of Orange County No.18DL0129; Los Angeles Co. Super. Ct. No. MJ24129, Fred W. Slaughter, Judge. Affirmed in part and reversed in part with directions.

          Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.


          IKOLA, J.

         The court found it to be true that minor A.W. committed five counts of felony vandalism. (Pen. Code, § 594, subd. (a).)[1] The court declared minor a ward of the state and ordered him to serve 37 days in juvenile hall.

         The sole question on appeal is whether the evidence supported a finding that, for each count, “the amount of defacement, damage, or destruction [was] four hundred dollars ($400) or more, ” as required to elevate the crime from a misdemeanor to a felony. (§ 594, subd. (b)(1).) The only competent testimony on that issue came from an employee of the City of Palmdale who helped prepare an analysis of the average cost to clean up an instance of graffiti.

         We find three flaws in that testimony. First, the use of an average, by itself, was not enough to prove beyond a reasonable doubt that the amount of damage inflicted by minor was equal to the average cleanup cost, rather than some other number. The 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. Second, the calculation included the cost of law enforcement, which, though proper in certain restitution settings, was not a proper consideration in assessing the damage minor inflicted under section 594. Third, Palmdale's methodology for calculating the average cost is flawed, for reasons we explain below. Accordingly, there was insufficient evidence that minor inflicted $400 or more in damages, and thus we reverse the adjudication in part with instructions to reduce the felony counts to misdemeanors.


         Minor admitted to 22 taggings in the City of Palmdale.[2] The city workers who removed the graffiti took photographs of each instance and uploaded the photographs to a software program called Graffiti Tracker. Graffiti Tracker contains information about the size of the graffiti, the surface type, the removal method, the date the photograph was taken, and the date the graffiti was removed. The People submitted into evidence a printout from Graffiti Tracker for each of minor's taggings.

         The detective who investigated the matter assigned a remediation cost of $545 to each incident based on Palmdale's grafitti restitution cost calculation (Cost Calculation). Ruth Oschmann, a crime prevention specialist for Palmdale, helped prepare the Cost Calculation. Because it is central to this appeal, we have attached a copy of the Cost Calculation as an appendix to this opinion. The Cost Calculation consists of two parts.

         In the first part, Palmdale calculated the hourly rate of the various city employees involved in graffiti remediation, as well as the hourly rate of the supplies involved. The use of an “hourly rate” for supplies is itself a problematic concept, but was calculated by Palmdale by dividing the total annual cost of graffiti remediation supplies by the number of hours in a year, assuming a 40-hour workweek. In addition to supplies, hourly rates were calculated for the following categories: vehicles, staff time, Graffiti Tracker, and a Los Angeles Sheriff Department graffiti investigator (Palmdale pays for a full-time investigator). The hourly rates for each of those categories were added together to come up with a total hourly rate of $327.32 for cleaning graffiti. That was then divided by 60 to come up with a per minute rate of $5.45.

         In the second part of the Cost Calculation, the average amount of time devoted to various tasks associated with graffiti removal was listed and assigned an average number of minutes to complete the task. The tasks listed, with minutes in parentheses, are: work order preparation (5), equipment preparation time (20), travel time to location (20), time spent at each individual location for graffiti removal (25), vehicle and equipment clean up time (20), and incident report log preparation time (10). The total is 100 minutes. The average minutes (100) were then multiplied by the per minute rate ($5.45) to arrive at an average cost of $545 to clean up a single instance of graffiti. This figure does not take into account the size of the graffiti, but according to Oschmann, the additional time it takes to paint over larger graffiti is insignificant. Most of the time is spent preparing, traveling, setting up, and cleaning up. Oschmann had no personal knowledge of the graffiti perpetrated by minor.

         At the conclusion of the hearing, minor's counsel argued the evidence was insufficient to prove minor had inflicted $400 or more in damages for each count. The court, without comment on that issue, found ...

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