California Court of Appeals, Fourth District, Third Division
In re A.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,
A.W., Defendant and Appellant.
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
A. Torres, under appointment by the Court of Appeal, for
Defendant and Appellant.
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.
court found it to be true that minor A.W. committed five
counts of felony vandalism. (Pen. Code, § 594, subd.
(a).) The court declared minor a ward of the
state and ordered him to serve 37 days in juvenile hall.
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.
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
admitted to 22 taggings in the City of
Palmdale. 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.
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.
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.
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.
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 ...