Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of San Diego County No. JCM221784 Dwayne K. Moring and Amalia L. Meza, Judges.
NARES, Acting P. J.
INTRODUCTION AND CONTENTIONS
This vandalism case arose in February 2008 when the home and personal property of Geoffrey Crawford were damaged as a result of egg throwing. Samuel R., then 15 years of age, admitted to the investigating sheriff's deputies that he and some of his friends threw the eggs because he was upset with Crawford's son, Ian.
A. Dismissal of Misdemeanor Citation
Samuel received a citation, which he contested, for misdemeanor vandalism in violation of Penal Code section 594, subdivisions (a) and (b)(2)(A). The prosecution's witness, Crawford, did not appear at the June 30, 2008 trial of that misdemeanor charge. However, San Diego County Deputy Sheriff Anthony Abutin, one of the officers to whom Samuel admitted responsibility for the egg throwing, did appear at that proceeding. Although the certified court reporter's transcript of the proceeding shows Deputy Abutin was not sworn in as a witness, the juvenile court's minute order indicates he was sworn in. The court asked him whether he observed Samuel "doing any graffiti." When Deputy Abutin answered, "No, " Judge Kapiloff dismissed the case.
Penal Code section 594, subdivision (a) provides in part: "Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: [¶] (1) Defaces with graffiti or other inscribed material. [¶] (2) Damages. [¶]
In a blank space beneath the portion of the juvenile court's minutes form that states "Witnesses sworn and testify as follows:" (original underscoring), the court clerk wrote, "Deputy Abutin."
The Honorable Lawrence Kapiloff, retired judge of the Superior Court of San Diego County.
B. Felony Delinquency Petition and Denial of Samuel's Motion To Dismiss
The San Diego County District Attorney renewed the prosecution by filing a delinquency petition alleging Samuel came within the provisions of Welfare and Institutions Code section 602 for having committed felony vandalism in violation of Penal Code section 594, subdivisions (a) and (b)(1), by unlawfully and maliciously damaging Crawford's real and personal property in the amount of $400 or more.
Penal Code section 594, subdivision (b)(1) provides: "If the amount of defacement, damage, or destruction is four hundred dollars ($400) or more, vandalism is punishable by imprisonment in the state prison or in a county jail not exceeding one year, or by a fine of not more than ten thousand dollars ($10,000)..., or by both that fine and imprisonment." (Italics added.)
In late April 2009 Samuel filed a contested pretrial motion to dismiss the felony petition under Penal Code section 1023 on the ground the petition violated the protections of the double jeopardy clause of the Fifth Amendment to the United States Constitution because the arresting officer who appeared at the jurisdictional hearing on the citation, Deputy Abutin, had been sworn in, thereby placing Samuel in jeopardy and barring the felony prosecution for the same offense.
In May 2009, following an evidentiary hearing (discussed, post) on Samuel's motion and the issue of whether Deputy Abutin had been sworn in at the hearing on the misdemeanor citation, the juvenile court denied the motion. In support of his ruling, Judge Moring found that (1) as between the court's minute order and the certified court reporter's transcript in determining whether Deputy Abutin was sworn in as a witness, "the law clearly favors the transcript"; and (2) in questioning Deputy Abutin, Judge Kapiloff had not attempted to "get into any of the evidence."
The Honorable Dwayne K. Moring.
C. Judgment
In September 2009, following a contested adjudication hearing on the felony delinquency petition, which by stipulation of the parties also served as the restitution hearing, the court found that Samuel's confession was voluntary, sustained the petition, ordered Samuel to pay victim restitution in the amount of $2,479.96, and denied his motion to reduce the charge from a felony to a misdemeanor, but stated it would "hold the People to their offer that upon [Samuel's] successful completion of probation they will reduce it to a misdemeanor."
The Honorable Amalia L. Meza.
At the November 2009 disposition hearing, the court placed Samuel on probation without wardship. The People represent on appeal that the court reduced the crime to a misdemeanor and terminated probation in May 2010.
Judge Moring.
D. Samuel's Contentions
Samuel appeals, contending (1) the juvenile court violated his constitutional and statutory rights not to be twice placed in jeopardy by allowing a felony vandalism petition after a previous dismissal of the identical misdemeanor charge; (2) his confession to the officers was coerced and its admission into evidence violated his Fourteenth Amendment right to due process; (3) his statements to the police were admitted into evidence in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (4) the court violated his Fourteenth Amendment right to due process by admitting evidence of coerced statements by Samuel's friend, Travis M.; (5) the prosecutor's act of recharging the dismissed misdemeanor charge as a felony constituted vindictive prosecution and violated Samuel's right to due process; and (6) the restitution order was unlawful for several reasons. We affirm the judgment and restitution order.
FACTUAL BACKGROUND
A. The People's Case
Crawford testified that on February 23, 2008, at around 11:00 p.m., heheard objects hitting the side of his and his son's home. He went outside and saw that the east-facing and north-facing walls had been hit with eggs. Some of Crawford's personal property, including deck chairs and a barbeque, was also damaged by eggs. The next day, Crawford tried to remove the eggshells and egg stains by hosing down the walls and patio with a garden hose. He spent two-and-a-quarter hours doing this initial cleanup. He valued his time at $42 an hour. He used 7.56 units (or 1, 875 gallons) of water at a cost of $2.40 per gallon. He hired a company at a cost of $650 to pressure wash the two egg-stained walls, but egg stains remained on the walls. Crawford spent an additional $1,628.31 to have those walls painted. He did some of the painting himself. Crawford spent two hours cleaning eggs off four windows. He hired a window cleaner at a cost of $89. Crawford stated that when two deputy sheriffs came to his house that night, Samuel and his mother were with them. Crawford also testified that his house, including the air conditioning unit on the north-facing side of the house, had previously been hit with eggs in multiple attacks in 2007.
Deputy Abutin testified that he and another deputy, Deputy Willmont, investigated the vandalism incident and interviewed Samuel in the living room of his home in the presence of his mother. Samuel told Deputy Abutin, who was wearing his uniform but did not draw his weapon, that he was upset with Crawford's son, Ian, because of an air rifle incident that occurred about four years before. In that incident, one of Samuel's friends shot Ian in the face with the rifle, Samuel's mother disciplined Samuel by taking the gun away, and Samuel held a grudge against Ian.
During the interview, Samuel told Deputy Abutin that he went to Ian's house that night (February 23, 2008) with Travis and another boy, and he threw the eggs at the house because he was still upset about the air rifle incident. Samuel also admitted that he had previously egged Ian's house two or three other times. Deputy Abutin stated he went to the house that same night and observed fresh eggs on the back yard wall and on the ground.
On cross-examination, Deputy Abutin stated that both he and Deputy Willmont questioned Samuel. All of the questioning took place inside Samuel's home. Deputy Willmont did not tell Samuel that he would take him and the other boys to juvenile hall if he did not tell the truth. Deputy Willmont's demeanor was professional, and he did not seem aggravated or upset with the boys.
B. The Defense Case
Samuel testified he was 15 years of age on the day of the incident. He stated that when the two deputies questioned him that night and asked him whether he had egged Crawford's house, he told them he did not know anything about it and he was at home the entire evening until the deputies came to his house. Travis and his brother came to Samuel's house sometime after 11:00 p.m. that night. Samuel admitted he told the deputies he threw the eggs at Crawford's house, but stated he did so because his mother told him to and because Deputy Willmont told him he would take him to juvenile hall if he did not stop lying.
On cross-examination, when the prosecutor asked Samuel about the air rifle incident, Samuel stated, "That never happened really." Samuel testified that he was in his house during the questioning and indicated the deputies did not point a weapon at him and did not put handcuffs on him. Samuel also stated his mother told him to admit he threw eggs at Crawford's house after Travis admitted he threw eggs at the house, but he (Samuel) "was still oblivious to what was going on." He testified the interrogation lasted about 15 minutes and his mother was with him the whole time.
On redirect examination, Samuel indicated that during the interrogation, he felt he would be taken to juvenile hall if he denied throwing the eggs. He also indicated that Deputy Willmont's demeanor was uncivil.
Samuel's mother testified she was present when the deputies questioned Samuel, and she heard the deputies threaten they would take Samuel to juvenile hall if he did not confess. She described the questioning as "brutal" and stated it lasted 15 minutes. Samuel denied egging the house "[50] however many" times, and he confessed only after she whispered to him that he should do so. She described Deputy Willmont as "very aggressive" and stated he "cornered" them.
On cross-examination, Samuel's mother indicated that after Samuel confessed, she drove Samuel and Travis to Crawford's house. When asked whether she spoke to Crawford about the damage to his house, she replied "there was no damage to [Crawford's] house." She admitted telling Crawford that Samuel "wasn't 100 percent responsible for the damage." She then changed her response, and stated, "I didn't say he was responsible at all." When asked about the air rifle incident, Samuel's mother replied, "I don't believe there was an incident necessarily.... Certainly, no[] injuries." She stated Crawford came to her home and spoke to her about the incident and accused Samuel "in... his usual very pushy style, that [Samuel] had done this and this." She also stated that Crawford "accused us of an incident happening which never has been proven." When asked whether there were any disciplinary consequences as a result of Crawford's coming over and telling her something had occurred with the air rifle, Samuel's mother replied, "No, " because she "didn't feel any was warranted."
Travis also testified on behalf of the defense. He stated he was at Samuel's house at around 11:00 p.m. on February 23, 2008, and he was there when the two deputies arrived. One of them questioned him "aggressively." The deputy talked to the three boys as a group and said he would take them into custody if they did not admit egging the house. Travis stated he was "a little scared."
On cross-examination, Travis stated he told Deputy Abutin that Samuel did not like Ian. Travis denied going to Ian's house that night. He stated he is "good friends with [Samuel], " and he did not want to get him trouble.
C. The People's Rebuttal
Deputy Abutin testified on rebuttal that he took Travis's statement on the night of February 23, 2008. Travis told him that he and a group of his friends walked to Crawford and Ian's house to throw eggs at the house because Samuel did not like Ian. Travis told him they threw eggs at the house when they arrived there. Travis also told him that Samuel had thrown eggs at the house on other occasions.
Deputy Abutin also testified that during his interview with Samuel, Samuel never denied throwing eggs at Crawford's house. When the prosecutor asked him whether Samuel admitted it to him immediately, Deputy Abutin replied, "Yes." On cross-examination, Deputy Abutin stated that Samuel admitted "right away" that he threw eggs at Crawford's house.
Crawford indicated that Samuel's mother came to his house on the night of the incident. He testified that "[a]bout the first thing she said when she came in the house is[, 'Y]ou can't pin all of this on my son.' " Samuel's mother told Crawford the egging of his house was "no big deal, " and she offered to come to his house and power wash it.
DISCUSSION
I. DOUBLE JEOPARDY
Samuel first contends the juvenile court violated his constitutional and statutory rights not to be twice placed in jeopardy by allowing the felony vandalism petition to be filed after Judge Kapiloff dismissed the original misdemeanor citation. Specifically, Samuel contends Judge Moring "erred in denying [his] motion to dismiss [the felony petition]" because (1) jeopardy attached when Judge Kapiloff questioned the arresting officer, Deputy Abutin, during the June 30, 2008 hearing on the misdemeanor vandalism citation; and (2) Judge Moring erred by finding the reporter's transcript of the June 30, 2008 hearing governed the issues of whether Deputy Abutin was sworn in during that proceeding and thus whether jeopardy attached. We reject these contentions.
A. Background
1. June 2008 hearing and dismissal of the misdemeanor citation
At the June 30, 2008 hearing on the misdemeanor vandalism citation, as already noted, Judge Kapiloff dismissed the citation after the victim, Crawford, failed to appear, and after Judge Kapiloff asked Deputy Abutin whether he observed Samuel "doing any graffiti, " and the deputy answered he did not.
The certified court reporter's transcript of that hearing shows Deputy Abutin was not sworn in as a witness and Judge Kapiloff dismissed the case after asking Deputy Abutin that one question. Specifically, the transcript shows the entire proceeding consisted of the following exchange between Judge Kapiloff and Deputy Abutin:
"THE COURT: This is the matter of Samuel [R.], who is here with his dad and mom, and is it Deputy Abutin?
"DEPUTY ABUTIN: Yes, sir.
"THE COURT: I have to ask you one question. There was supposed to be a witness here, Geoff [Crawford], who is not here, and I have to know one thing before we do anything else. Did you observe this minor, you observe him doing any graffiti?
"DEPUTY ABUTIN: No, sir.
"THE COURT: Then I have to dismiss the case.
"DEPUTY ABUTIN: Yes, sir.
"THE COURT: Case will be dismissed. Thank you." (Italics added.)
However, the juvenile court's June 30, 2008 minute order inconsistently indicates that Deputy Abutin was sworn in at that hearing. Specifically, in a blank space beneath the portion of the preprinted form that states "Witnesses sworn and testify as follows:", the court clerk wrote, "Deputy Abutin."
2. Felony delinquency petition and denial of Samuel's motion to dismiss
After Judge Kapiloff's dismissal of the misdemeanor citation, the People renewed the vandalism prosecution by filing the felony delinquency petition (discussed, ante), which Samuel challenged by bringing his pretrial motion to dismiss the petition on the ground it violated the protections of the double jeopardy clause of the Fifth Amendment to the federal Constitution because (he claimed) Deputy Abutin was sworn in and gave testimony at the June 2008 hearing, thereby placing Samuel in jeopardy and barring a felony prosecution for the same offense charged in the misdemeanor citation that Judge Kapiloff dismissed.
The People filed written opposition to Samuel's motion to dismiss, arguing the petition did not violate the double jeopardy clause and should not be dismissed because Deputy Abutin was not sworn in as a witness during the hearing on the misdemeanor citation, Judge Kapiloff dismissed that citation without hearing any evidence, and Samuel was neither convicted nor acquitted of the vandalism crime charged in the citation. In support of its opposition to Samuel's motion to dismiss, the People submitted a certified copy of the reporter's transcript of the June 2008 hearing.
On May 12, 2009, Judge Moring held an evidentiary hearing on Samuel's motion to dismiss. Judge Moring admitted into evidence a certified copy of the reporter's transcript of the June 2008 hearing. Deputy Abutin testified on direct examination that he was not sworn in at the June 2008 hearing. When Samuel's counsel asked Deputy Abutin on cross-examination what was causing him to recall that he was not sworn in, Deputy Abutin responded, "I didn't raise my hand, and I didn't have a court reporter or a clerk swearing me in."
On redirect examination, the prosecutor asked Deputy Abutin, "Just so it's clear, on June 30, 2008, for the [Samuel R.] matter, did you ever raise your hand, like you did here in court today, and swear to tell the truth?" Deputy Abutin replied, "No, I did not."
In support of the motion to dismiss, defense counsel called Samuel's father as a witness. Samuel's father's indicated he was present inside the courtroom at the June 2008 hearing for purposes of a trial involving Samuel, and he remembered seeing Deputy Abutin at that hearing. Samuel's father stated the judge asked the deputy only one question, "Did you see any eggs being thrown?" Defense counsel asked, "Did the judge use the word 'graffiti'?" Samuel's father replied, "No sir. If he had, he would have been corrected by probably everybody in the room."
Defense counsel asked Samuel's father whether the deputy was sworn in as a witness. Samuel's father answered, "The deputy was sworn. And I probably wouldn't remember it, except when they did it, they said it kind of fast, and I was thinking it was kind of like in the movies. That's the honest truth."
On cross-examination, the prosecutor asked Samuel's father's how many times he had been in court to see a witness testify. He replied, "Once or twice, maybe, " and then stated, "It was a big deal for me. I don't go to court too often. I remember everything. It's like burned in my mind." When the prosecutor asked Samuel's father who was in the courtroom during the June 2008 hearing, he replied, "I don't remember who was in the room. I remember the deputy was in the room. Sam[uel] was there. The judge was there. It's a year ago. I don't remember everything. There might have been people there, that I didn't even know they were there." (Italics added.) Samuel's father's indicated he did not remember whether a court reporter was present at the June 2008 hearing.
The prosecutor also asked Samuel's father, "Do you recall if [Deputy Abutin] raised his hand? If he was sworn in?" Samuel's father replied, "No, I don't remember that either. No, sir. All I remember─I only remember the words because of what I told you. I remembered the words."
a. Court's ruling
After the defense rested and defense counsel and the prosecutor presented their arguments, Judge Moring denied Samuel's motion to dismiss the petition, finding that, "as between the minute order and the transcript, an official transcript that's been prepared, the law clearly favors the transcript" (italics added), which "is a more detailed recording of the proceedings."
Judge Moring also found that Judge Kapiloff "clearly indicates that he's not attempting to get into any of the evidence. He wants to have one question and only one question answered so that he could determine whether there will be, in fact, evidence. And when he learns that [Deputy Abutin] is not able to provide any evidence regarding the elements of the offense, he cuts it off. So, I do believe that the questioning by [Judge Kapiloff] was merely preliminary questions to determine whether the People, so to speak, would be able to present any evidence, and, once learning that, [Judge Kapiloff] dismissed the case. [¶] I'm relying on the transcript. It is from a certified court reporter, and I believe that it is the most accurate rendition of the facts that occurred that day." (Italics added.)
B. Applicable Legal Principles
In People v. Bright (1996) 12 Cal.4th 652, 660, overruled on other grounds in People v. Seel (2004) 34 Cal.4th 535, 550, footnote 6, the California Supreme Court explained that "[t]he double jeopardy clauses of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and article I, section 15, of the California Constitution, guarantee that a person shall not be placed twice 'in jeopardy' for the 'same offense.' The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishment for the same offense."
Double jeopardy protections apply to the adjudication phase of a juvenile delinquency proceeding that is "entered upon" before a judge or referee. (Jesse W. v. Superior Court (1979) 26 Cal.3d 41, 44; see also Richard M. v. Superior Court (1971) 4 Cal.3d 370, 376 (Richard M.).) Such a proceeding is "entered upon, " and thus jeopardy attaches, when the first witness is sworn. (Richard M., supra, 4 Cal.3d at p. 376.)
C. Analysis
For reasons we shall explain, we conclude the felony petition is not barred by the constitutional protections against double jeopardy, and thus Judge Moring did not err in denying Samuel's motion to dismiss the petition.
1. Judge Kapiloff's questioning of Deputy Abutin during the June 2008 hearing
As already noted, Samuel contends on appeal that jeopardy attached when Judge Kapiloff questioned Deputy Abutin during the June 30, 2008 misdemeanor citation proceeding. Citing Richard M., supra, 4 Cal.3d 370, Samuel asserts that Judge Kapiloff's dismissal of the case "was a finding of insufficient evidence as in Richard M." because the judge "asked the direct question as to whether [Deputy Abutin] had witnessed any vandalism, " and Deputy Abutin responded that he had not.
We reject these contentions. The record shows (as Samuel acknowledges in his appellant's opening brief) that the arresting officer, Deputy Abutin, was representing the prosecution during the brief misdemeanor citation proceeding. We note that during oral arguments on appeal, Samuel's counsel acknowledged that "[t]he matter was being prosecuted by the arresting officer." Thus, the record shows that although Deputy Abutin was a potential witness in that proceeding because he was the arresting officer, he was acting in his capacity as the prosecutor when he responded to Judge Kapiloff's sole question whether he "observe[d] this minor... doing any graffiti."
The record also shows that Judge Kapiloff, by asking that question, was merely asking for an offer of proof, rather than actual evidence, to assist the court in determining whether there was any reason to take evidence at all. In denying Samuel's motion to dismiss the felony petition, Judge Moring correctly found that Judge Kapiloff was "not attempting to get into any of the evidence."
As already discussed, the reporter's transcript shows that Judge Kapiloff asked Deputy Abutin one question: Whether Deputy Abutin observed Samuel "doing any graffiti" (not, as Samuel asserts, whether Deputy Abutin observed Samuel doing any "vandalism"). We note that the citation in question charged Samuel with a violation of Penal Code section 594, subdivisions (a) and (b)(2)(A), a misdemeanor, and was based on Samuel's alleged act of throwing eggs at Crawford's house causing damage in an amount under $400. In this matter, Samuel was never accused of "doing... graffiti." Thus, Judge Kapiloff's question and Deputy Abutin's response arguably were not material to the offense charged in the citation.
We conclude Deputy Abutin's response to Judge Kapiloff's question did not constitute testimony with respect to the merits of the misdemeanor vandalism charged in the citation, and thus that juvenile delinquency proceeding was not entered upon and jeopardy did not attach.
Samuel's reliance on Richard M., supra, 4 Cal.3d 370, is unavailing. In that case, the minor sought a writ of prohibition to restrain the superior court from conducting a jurisdictional hearing on a second petition alleging the minor came within the provisions of Welfare and Institutions Code section 602 by committing grand theft of a motorcycle (Veh. Code, § 10851). (Richard M., supra, 4 Cal.3d at p. 373.) The minor claimed the juvenile court had conducted a hearing on a prior petition containing the identical charge and had ordered the petition dismissed after finding its allegations were not sustained, and thus the double jeopardy clause of the Fifth Amendment barred a hearing on the pending second petition. (Ibid.) Without swearing in the minor, the juvenile court examined him about the circumstances under which he took the motorcycle, and the minor admitted the theft but explained in detail both the circumstances and his reasons, claiming an older boy had threatened him with a knife and had forced him to take the motorcycle against his will. (Id. at pp. 373-374.) After denying the probation officer's request for a continuance to bring in the owner of the motorcycle, who the probation officer said might be able to shed some light on what happened, the juvenile court found the petition was not sustained and ordered that it be dismissed. (Id. at p. 374.)
The California Supreme Court in Richard M. granted the minor's request for a writ of prohibition, holding that "[j]eopardy attached and further hearing on the same act and offense by the same minor is barred by the constitutional protections against double jeopardy." (Richard M., supra, 4 Cal.3d at p. 378.) The high court reasoned that because the juvenile court had found the evidence insufficient to sustain the petition "after a hearing on the merits" (italics added), the juvenile court's dismissal of the original petition was "equivalent to an acquittal, " and thus the minor "should not be exposed a second time because of procedural errors for which he was not responsible." (Ibid.)
Here, Samuel's reliance on Richard M. is unavailing because the June 30, 2008 hearing on the misdemeanor citation in the instant case, unlike the evidentiary hearing on the petition in Richard M., was not a hearing on the merits. Samuel, unlike the minor in Richard M., was not examined during the hearing on the citation, and no other witness was examined with respect to the factual allegations underlying the citation. The sole question Judge Kapiloff asked Deputy Abutin to answer was whether he observed Samuel doing any graffiti, not whether he observed him throwing eggs at Crawford's house. Furthermore, the juvenile court in Richard M. made an express finding that the petition allegations were not sustained. (See Richard M., supra, 4 Cal.3d at p. 374.) Here, however, Judge Kapiloff made no such finding. Thus, Judge Kapiloff's dismissal of the citation, unlike the juvenile court's dismissal of the original petition in Richard M., cannot be deemed to be "equivalent to an acquittal." (Id. at p. 378.)
Samuel's reliance on In re Raymond P. (1978) 86 Cal.App.3d 797 (Raymond P.) is also unavailing. In that case, a juvenile court referee conducted an evidentiary hearing on a petition alleging the minor came within the provisions of section 602 of the Welfare and Institutions Code by committing the felony offense of possessing a rifle having a length of less than 26 inches (Pen. Code, § 12020). (Raymond P., supra, at p. 800.) The prosecution's evidence included the sworn testimony of the arresting officer and the contraband rifle itself. (Ibid.) After the prosecutor rested, defense counsel informed the referee he had subpoenaed five police officers and none of them had appeared. (Id. at pp. 800-801.) The referee continued the hearing to the next day and, when none of the officers appeared, dismissed the petition on the ground the minor had been denied the opportunity to present his case. (Id. at p. 801.) Thereafter, the juvenile court granted the prosecutor's request for a rehearing on the referee's dismissal of the petition, then reheard the case de novo and sustained the petition. (Id. at pp. 800, 801.) On appeal, the minor claimed the rehearing of his case amounted to placing him twice in jeopardy for the same offense. (Id. at p. 800.)
The Court of Appeal in Raymond P. reversed the judgment, holding that the jurisdictional hearing on the original petition was "entered upon, " and jeopardy thus attached, when the arresting officer was sworn, and, as a result of the dismissal of the petition, the "bar of once in jeopardy" was a defense to the trial de novo on that petition because that trial placed the minor in jeopardy a second time. (Raymond P., supra, 86 Cal.App.3d at pp. 800, 802, 807-808.)
Raymond P. is distinguishable in that the juvenile court in that case conducted an evidentiary hearing on the merits of the first felony petition, and the prosecution's witness was sworn in. (See Raymond P., supra, 86 Cal.App.3d at pp. 800, 802.) Here, Judge Kapiloff questioned an unsworn witness and did not conduct a hearing on the merits of the allegations underlying the misdemeanor citation.
For all of the foregoing reasons, we conclude the proceeding on the citation was not a hearing on the merits of the allegations supporting the citation, and thus the proceeding was not entered upon, jeopardy did not attach, and thus the felony petition did not place Samuel in jeopardy a second time. (See Jesse W. v. Superior Court, supra, 26 Cal.3d at p. 44; Richard M., supra, 4 Cal.3d at p. 376.)
2. Judge Moring's reliance on the reporter's transcript in determining that Deputy Abutin was not sworn in during the June 2008 hearing on the citation
In support of his claim that his prosecution under the felony petition was barred by the protections of the double jeopardy clause of the Fifth Amendment, Samuel also contends Judge Moring erred by finding the reporter's transcript of the June 30, 2008 hearing governed the issues of whether Deputy Abutin was sworn in during that proceeding and thus whether jeopardy attached. In support of this contention, Samuel relies on the testimony of Samuel's father, who testified that Deputy Abutin was sworn in as a witness, and on Judge Kapiloff's June 30, 2008 minute order, which indicates Deputy Abutin was sworn in.
As a general rule, the oral pronouncements of a trial court are presumed correct. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Thompson (2009) 180 Cal.App.4th 974, 978.) Under certain circumstances, however, a minute order or abstract of judgment will prevail over a reporter's transcript. (See People v. Cleveland (2004) 32 Cal.4th 704, 768; Thompson, supra, 180 Cal.App.4th at p. 978.) In Thompson, this court recently explained that, "[w]hen the record is in conflict and cannot be harmonized, ' "... that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence...." ' " (Thompson, supra, 180 Cal.App.4th at p. 978.)
Here, we conclude Judge Moring did not err in concluding that the reporter's transcript was entitled to greater credence than either the testimony of Samuel's father or the minute order. The record shows that the transcript of the June 30, 2008 hearing conducted by Judge Kapiloff was prepared by a certified court reporter who attested that the transcript was a true and correct transcription of the proceeding. Deputy Abutin testified on direct examination, cross-examination, and redirect examination that he was not sworn in at that hearing.
Samuel's reliance on his father's testimony is unavailing. Samuel's father testified on cross-examination that he "remember[ed] everything" about the June 30, 2008 hearing, but then stated, "It's a year ago. I don't remember everything." He then admitted he did not remember whether a court reporter was present at that hearing. The prosecutor asked him, "Do you recall if [Deputy Abutin] raised his hand? If he was sworn in?" Samuel's father replied, "No, I don't remember that either. No, sir." He then stated he remembered "the words, " but did not specify what words he claimed he remembered. Samuel's father's testimony thus demonstrated his memory of the June 30, 2008 hearing was incomplete and lacking in credibility.
Samuel's reliance on Judge Kapiloff's minute order is also unavailing. That minute order consists of a preprinted form on which someone, presumably the court clerk, wrote down various names and information. In a blank space beneath the portion of the preprinted form that states "Witnesses sworn and testify as follows:", the the handwritten name "Deputy Abutin" appears. However, the form does not contain a box that can be checked in the event a witness is examined without being sworn in.
The foregoing record convincingly demonstrates that the reporter's transcript is the most reliable record of the June 30, 2008 proceeding. Judge Moring thus properly relied on that transcript in finding that Deputy Abutin was not sworn in at that hearing.
II. VOLUNTARINESS OF SAMUEL'S CONFESSION
Samuel next contends his confession to the officers was coerced and its admission violated his Fourteenth Amendment right to due process. We conclude that substantial evidence supports the court's finding that Samuel's confession was voluntary.
A. Applicable Legal Principles
The federal and state Constitutions bar the use of involuntary confessions against a criminal defendant. (Jackson v. Denno (1964) 378 U.S. 368, 385-386; People v. Benson (1990) 52 Cal.3d 754, 778.) A confession is involuntary if it is "not ' "the product of a rational intellect and a free will." ' " (Mincey v. Arizona (1978) 437 U.S. 385, 398.)
"The test for determining whether a confession is voluntary is whether the questioned suspect's 'will was overborne at the time he confessed.' " (People v. Cruz (2008) 44 Cal.4th 636, 669.) " 'A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions.' " (Ibid.) Whether a statement is voluntary depends upon the totality of the circumstances surrounding the interrogation. (People v. Neal (2003) 31 Cal.4th 63, 79.)
On appeal, a trial court's determination as to the issue of the voluntariness of a confession is reviewed independently. (People v. Jones (1998) 17 Cal.4th 279, 296.) However, " ' "the trial court's findings as to the circumstances surrounding the confession─including 'the characteristics of the accused and the details of the interrogation' [citation]─are... subject to review for substantial evidence." ' " (Ibid.) Evidence is substantial where it is reasonable, credible and of solid value from which a reasonable trier of fact could make the finding in question. (People v. Snow (2003) 30 Cal.4th 43, 66.)
B. Background
On the day set for the adjudication hearing on the felony petition, the People brought a motion seeking admission of Samuel's confession to Deputy Abutin upon the laying of a proper foundation. In support of the motion, the People argued that the totality of the circumstances showed that Samuel was not in custody at the time he was interrogated in his home, and thus there was no need to advise him of his Miranda rights and his confession was voluntary. The court deferred ruling on the motion until after all of the evidence and oral arguments were presented at the adjudication hearing.
Regarding the circumstances of Samuel's interrogation, the People presented at the adjudication hearing the testimony of Deputy Abutin (discussed, ante). As also discussed, ante, the defense presented the testimony of Samuel, his mother, and Travis, who all testified to the circumstances of the questioning, and the People challenged the defense evidence with the rebuttal testimony of Deputy Abutin.
Following closing arguments, and noting that "what the case boils down to is whether or not the confession of the minor is admissible, " Judge Meza ruled that Samuel's confession was voluntary. In support of her decision, Judge Meza found that, based on his testimony, Samuel was a "bright young man" and "very well spoken"; he was interrogated for 15 minutes in his and his mother's home, and in the presence of his mother, who was "pretty aggressive" and "able to stand up for herself" and "speak up for herself"; and Samuel's own testimony showed he confessed because his mother told him to, "[not] because the officers made him confess." Judge Meza concluded that, "looking at all of the testimony here, [Deputy Abutin's] testimony and the testimony of [Samuel's mother] and the other juvenile, Travis, and [of Samuel], I find that the confession was voluntary."
C. Analysis
We conclude that Judge Meza's findings and decision are supported by substantial evidence. Samuel testified he was 15 years of age when Deputy Abutin, who was in uniform, questioned him in his and his mother's home on February 23, 2008. Samuel stated the officers never drew their weapons or handcuffed him, the questioning lasted about 15 minutes, the officers were standing and he and his mother were sitting on the couch during the questioning, and his mother was with him the entire time. Samuel's mother also testified she was with Samuel "during the entire questioning" of her son.
The court's finding that Samuel, who was 16 years of age at the time of the hearing, was a "bright young man" and "very well spoken" is supported by his own careful testimony, which demonstrated thoughtful sophistication. For example, the prosecutor asked him during cross-examination, "[N]ow it's your testimony that your mom said[, '[J]ust admit it and we'll solve it later'?" Samuel replied, "Yes, some variant of that. I don't know exactly what she said, 'just go with it.' " The prosecutor then asked, "And she told you that after Travis... admitted having gone over there [to Crawford's house] and throwing eggs?" Samuel answered, "Yes, " and then added, "I was still oblivious to what was going on." When the prosecutor followed up by asking him, "Do you normally admit to things you're oblivious about?, " Samuel responded, "When my mother tells me to, she knows best."
The court's findings that Samuel's mother was "pretty aggressive" and could "speak up for herself" was amply supported by her own testimony. For example, during cross-examination the prosecutor asked her whether Crawford spoke to her about an alleged incident that involved Samuel, one of Samuel's friends, Crawford's son Ian, and an air rifle. She replied that "[Crawford], I believe, came over to our home and accused Sam[uel] in rather, you know, his usual very pushy style, that Sam[uel] had done this and this, " and also stated that Crawford "accused us of an incident happening which never has been proven." When asked whether she was afraid of either Deputy Abutin or the other deputy when they came to her home late at night upon her invitation, she responded, "Why would I be?" and "I was not."
The court's determination that Samuel's confession was voluntary was also supported by the testimony given by both Samuel and his mother. On direct examination, defense counsel asked Samuel why he admitted to Deputy Abutin that he threw eggs at Crawford's house. Samuel replied, "Because once Travis had admitted[, ] my mother told me that 'just admit and we'll get it solved, we'll take care of it. Don't even worry.'" Defense counsel then asked, "So you did it because your mother told you to admit?" Samuel answered, "Yes. I just trusted what she said." As already noted, Samuel acknowledged on cross-examination that he admitted throwing eggs at Crawford's house because his mother told him to, and because "she knows best."
We note that defense counsel then asked Samuel: "Did either of the deputies in your opinion coerce you to admit to throwing the eggs?" Samuel responded, "Yes, " and asserted the other officer told him not to lie or he would take him to juvenile hall.
Samuel's mother's testimony also supported the court's finding that Samuel's confession was voluntary. After stating on direct examination by defense counsel that Samuel denied "[50] however many" times that he egged Crawford's house, Samuel's mother testified she "whispered to Sam[uel], '[A]gree with him.['] And he didn't at first. And the questioning went on and I said it again." (Italics added.) When defense counsel asked her whether her testimony was that Samuel was "hesitant" to admit egging the house, Samuel's mother's answered, "Sam[uel] absolutely hesitated, yes." Defense counsel then asked her, "In your mind did he admit to throwing the eggs because you told him to?" Samuel's mother replied, "Absolutely." She then added, "I absolutely told him I -- I at first I think I said [']appease him.['] And, that might be why he didn't do it because maybe he didn't know what appease was but I said [']agree.[']"
The foregoing testimony by Samuel's mother, like Samuel's own testimony, strongly supports the court's findings that Samuel confessed because she told him to and "[not] because the officers made him confess."
In sum, the record shows that Samuel resisted confessing until his mother, who was protectively present during the deputies' entire questioning inside their home, repeatedly told him to confess. Having considered the totality of the circumstances surrounding the interrogation, we reject Samuel's contentions that his confession to the officers was coerced and its admission violated his Fourteenth Amendment right to due process.
III. MIRANDA
Samuel also contends his statements to the police were admitted into evidence in violation of Miranda, supra, 384 U.S. 436. We reject this contention as the record shows Samuel was not in custody at the time of the interrogation.
A. Applicable Legal Principles
"To protect the Fifth Amendment privilege against self-incrimination, a person undergoing a custodial interrogation must first be advised of his right to remain silent, to the presence of counsel, and to appointed counsel, if indigent." (People v. Stitely (2005) 35 Cal.4th 514, 535, italics added, citing Miranda, supra, 384 U.S. at pp. 436, 444, 467-473, 478-479.)
A suspect is in custody for purposes of the Fifth Amendment when he is " 'deprived of his freedom of action in any significant way.' " (People v. Mickey (1991) 54 Cal.3d 612, 648, 661, quoting Miranda, supra, 384 U.S. at p. 444.) To determine whether a person who has not been formally arrested is in custody, courts examine, based on a totality of the circumstances, "how a reasonable man in the suspect's position would have understood his situation." (Berkemer v. McCarty (1984) 468 U.S. 420, 442; see also Yarborough v. Alvarado (2004) 541 U.S. 652; People v. Ochoa (1998) 19 Cal.4th 353, 401.) "[T]he ultimate inquiry is simply whether there is a '... restraint on freedom of movement' of the degree associated with a formal arrest." (California v. Beheler (1983) 463 U.S. 1121, 1125; People v. Ochoa, supra, at p. 401.) The test is objective, and the subjective views harbored by the interrogating officers or the defendant are not generally relevant to the determination. (Stansbury v. California (1994) 511 U.S. 318, 323.)
In determining whether a defendant is "in custody, " courts consider a number of objective criteria, such as whether contact was initiated by law enforcement, whether the suspect voluntarily agreed to an interview, the ratio of officers to suspects during the interview; the officers' demeanor, whether the officers informed the suspect he was under arrest or free to terminate the interview and leave, whether the officers dominated and controlled the course of the interrogation, whether the officers manifested a belief the person was culpable and they had evidence to prove it, whether techniques to pressure the suspect were employed, and whether the suspect was arrested at the close of the interview. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162; People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) "[C]ourts [also] consider highly significant whether the questioning was brief, polite, and courteous or lengthy, aggressive, confrontational, threatening, intimidating, and accusatory." (Aguilera, at p. 1164.)
1. Standard of review
"In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under [Miranda], supra, 384 U.S. 436, we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we ' "give great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence.' " (People v. Wash (1993) 6 Cal.4th 215, 235-236.)
B. Analysis
It is undisputed that Samuel was not advised of his Miranda rights before he gave his confession to Deputy Abutin. As a preliminary matter, we note the People's argument that Samuel forfeited this Miranda violation claim because (1) he filed no opposition to the People's motion to admit Samuel's confession, in which the People argued Samuel's incriminating statements were not taken in violation of Miranda because he was not in custody; (2) defense counsel said nothing about Miranda during his opening statement; (3) at trial, Deputy Abutin testified about Samuel's confession without a defense objection; and (4) the defense never contended Samuel's statements were taken in violation of Miranda. Samuel argues that (1) "[t]he fact the court's ruling focused only on the voluntariness inquiry should not amount to a forfeiture of [his] Fifth Amendment claim"; and (2) in the event this court determines he forfeited the issue, the forfeiture was the result of ineffective assistance of counsel.
Assuming, without deciding, that Samuel did not forfeit this claim, we conclude Samuel's Miranda rights were not violated because the evidence shows he was not in custody. As already discussed, two deputies questioned Samuel for a brief period of about 15 minutes in the protective presence of his mother in the living room of their home, and at the invitation of Samuel's mother. Samuel was not handcuffed or placed under formal arrest during the questioning, and although the deputies were in uniform, they did not draw their weapons.
The evidence is in conflict with respect to the demeanor of Deputy Willmont, the deputy who accompanied Deputy Abutin. Deputy Abutin testified on direct examination that Deputy Willmont did not tell Samuel he would take him and the other boys to juvenile hall if he did not tell the truth. Deputy Abutin also testified that Deputy Willmont's demeanor was professional, and he did not seem aggravated or upset with the boys. On cross-examination during the People's rebuttal case, Deputy Abutin repeated his testimony that he never heard Deputy Willmont threaten to take Samuel or the other boys to juvenile hall if they did not admit the egg throwing.
Samuel, however, testified that Deputy Willmont told him he would take him to juvenile hall if he did not stop lying. He also indicated that Deputy Willmont's demeanor was uncivil. Samuel's mother testified that she heard the deputies threaten they would take Samuel to juvenile hall if he did not confess. She also described the questioning as "brutal."
We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.) Accordingly, we will not resolve this conflict in the evidence or independently evaluate the credibility of these witnesses with respect to Deputy Willmont's demeanor during the questioning.
After reviewing the totality of the circumstances surrounding the questioning, we conclude Samuel's freedom of movement was not restrained to the degree associated with a formal arrest, and thus he was not in custody during that questioning for purposes of Miranda. (See California v. Beheler, supra, 463 U.S. at p. 1125; People v. Ochoa, supra, 19 Cal.4th at p. 401.) Accordingly, we reject Samuel's contention that his confession to Deputy Abutin was admitted into evidence in violation of his Miranda rights.
IV. VOLUNTARINESS OF TRAVIS'S STATEMENTS
Samuel further contends the court violated his Fourteenth Amendment right to due process by admitting evidence of coerced statements by his friend Travis. We conclude Samuel forfeited this claim by failing to object at trial to the evidence of Travis's incriminating statements.
A. Background
Deputy Abutin testified during the People's rebuttal case that he took Travis's statement during the evening of February 23, 2008. When the prosecutor asked him whether Travis told him "anything about why Sam[uel] would have wanted to egg Ian's house, " defense counsel objected on the ground the question called for inadmissible hearsay. The court overruled the objection on the ground the question called for evidence that Travis had made a prior inconsistent statement. As previously noted, Deputy Abutin testified that Travis told him that he and a group of his friends walked to Crawford and Ian's house to throw eggs at the house because Samuel did not like Ian. He also testified that Travis told him that they threw eggs at the house when they arrived there and that Samuel had thrown eggs at the house on other occasions.
B. Analysis
The record shows, and Samuel does not dispute, that his counsel did not object to Deputy Abutin's testimony regarding Travis's foregoing statements on the ground those statements were coerced. As a result, the parties had no incentive to fully litigate this claim below, and the trial court had no opportunity to resolve material factual disputes and make necessary factual findings. "Under such circumstances, a claim of involuntariness generally will not be addressed for the first time on appeal." (People v. Ray (1996) 13 Cal.4th 313, 339.) Having failed to raise such an objection in the juvenile court, Samuel has forfeited this claim on appeal. (See People v. Cruz (2008) 44 Cal.4th 636, 669 [holding that a defendant's motion to suppress a confession based on a Miranda violation does not preserve on appeal a claim that the confession was also involuntary]; Ray, supra, 13 Cal.4th at p. 339 [same].)
V. VINDICTIVE PROSECUTION
Samuel also contends the prosecutor's act of recharging the dismissed misdemeanor charge as a felony constituted vindictive prosecution and violated Samuel's right to due process. The People assert that Samuel forfeited this claim by failing to object to the felony petition in the juvenile court and that the record does not support this claim. We conclude Samuel did not forfeit these claims, but reject his contentions on the merits.
A. Applicable Legal Principles
Under the doctrine of prosecutorial vindictiveness, in certain circumstances "[w]here the defendant shows that the prosecution has increased the charges in apparent response to the defendant's exercise of a procedural right, the defendant has made an initial showing of an appearance of vindictiveness. [Citation.] The defendant need not demonstrate that the prosecution in fact acted with a retaliatory motive. [Citation.] Once this prima facie case is made, the prosecution bears a 'heavy burden' of dispelling the appearance of vindictiveness as well as actual vindictiveness." (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 371, italics added.)
The California Supreme Court has also explained that "the due process clauses of the federal and state Constitutions (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15) forbid the prosecution from taking certain actions against a criminal defendant, such as increasing the charges, in retaliation for the defendant's exercise of constitutional rights." (People v. Jurado (2006) 38 Cal.4th 72, 98 (Jurado), italics added.)
However, "[i]n the pretrial setting, there is no presumption of vindictiveness when the prosecution increases the charges or... the potential penalty." (Jurado, supra, 38 Cal.4th at p. 98, italics added, citing United States v. Goodwin (1982) 457 U.S. 368, 381-382 & People v. Michaels (2002) 28 Cal.4th 486, 515.) " ' " '[A] prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct [because] the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.' " ' " (Michaels, supra, 28 Cal.4th at pp. 514-515, italics added, .) Thus, when challenging a prosecutor's decision to increase the charges in a pretrial setting, "the defendant must 'prove objectively that the prosecutor's charging decision was motivated by a desire to punish him for doing something the law plainly allowed him to do.' " (Jurado, supra, 38 Cal.4th at p. 98.)
B. Analysis
1. Forfeiture
We reject the People's assertion that Samuel forfeited his vindictive prosecution and violation of due process claims. The reporter's transcript of the September 22, 2009 trial proceeding shows that in support of Samuel's motion to dismiss the felony petition, his counsel stated, "Your Honor, I'd like to move for dismissal based on due process grounds, " and argued that "[t]he refilling of this case as a felony was simply to allow the charge to be reopened after the misdemeanor case... was dismissed by Judge Kapiloff on June 30th, 2008. [¶] This vindictive prosecution circumvents [Samuel's] protection against double jeopardy prosecution.... [I]t's also unfair that they're able to refile this as a felony when it was initially filed as a misdemeanor with no additional evidence coming thereafter." (Italics added.) The record thus shows that Samuel did raise his vindictive prosecution claim in the juvenile court.
2. Merits
With respect to the merits, Samuel contends that a presumption of vindictiveness "applies squarely where[, ] as here, the prosecution increased the charges after appellant previously exercised his right to a trial on the misdemeanor charge." Asserting that this presumption of vindictiveness "can only be overcome where the prosecution can show the increase in the charges was justified by an objective change in the circumstances or in the state of the evidence, and where the new information could not have reasonably been discovered earlier, " Samuel also contends that, here, the prosecution "made no attempt to show the $400 threshold for the felony vandalism charge was only exceeded after the misdemeanor charge had been dismissed."
These contentions are unavailing. "California courts have followed the [United States] Supreme Court in refusing to apply a presumption of vindictiveness for prosecutorial action before commencement of trial." (People v. Bracey (1994) 21 Cal.App.4th 1532, 1544.) Here, trial did not commence, and jeopardy did not attach, when Judge Kapiloff questioned Deputy Abutin at the June 30, 2008 proceeding. The presumption of vindictiveness does not apply here, and thus the People have no burden to overcome a presumption that does not exist.
Furthermore, "[a]bsent a presumption, a denial of due process on grounds of prosecutorial vindictiveness requires objective evidence 'that the prosecutor's charging decision was motivated by a desire to punish [the defendant] for doing something that the law plainly allowed him to do.' " (People v. Bracey, supra, 21 Cal.App.4th at p. 1549, quoting United States v. Goodwin, supra, 457 U.S. at p. 384, fn. omitted.) Here, Samuel has presented no such evidence.
VI. RESTITUTION ORDER
Last, Samuel contends the restitution order was unlawful for several reasons. For reasons we shall explain, we affirm the order.
A. Applicable Legal Principles
"When a minor is adjudged a ward of the court, the juvenile court must order restitution to reimburse a victim for 'any economic loss' resulting from the minor's conduct bringing him within the court's jurisdiction." (In re Brian N. (2004) 120 Cal.App.4th 591, 593, disapproved on another ground by People v. Martinez (2005) 36 Cal.4th 384, 394, fn. 2); Welf. & Inst. Code, § 730.6, subds. (a)(1) & (h).) "The juvenile court is vested with discretion to order restitution in a manner that will further the legislative objectives of making the victim whole, rehabilitating the minor, and deterring future delinquent behavior." (Brian N., supra, 120 Cal.App.4th at p. 594.)
"The standard of review of a restitution order is abuse of discretion. 'A victim's restitution right is to be broadly and liberally construed.' [Citation.] ' "When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court." ' " (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.)
B. Background
Following the combined adjudication and restitution hearing, Judge Meza ordered Samuel to pay Crawford victim restitution in the amount of $2,479.96.
C. Analysis
Samuel has not met his burden of demonstrating Judge Meza abused her discretion in ordering him to pay victim restitution in the amount of $2,479.96. As the people point out, Judge Meza used a rational method for calculating the restitution award, and the victim's testimony supported the amount of that award. Specifically, Crawford testified that as a result of the egging of his property on February 23, 2008, he incurred the following economic losses, the sum of which is $2,479.96: (1) $94.50, the value of the personal time he spent on the initial cleanup; (2) $18.15 for water usage; (3) $650 for the cost of hiring a company to pressure wash the north- and east-facing walls of the house; (4) $1,628.31 for repainting the walls; and (5) $89.00 for the cost of hiring a window cleaner.
Samuel challenges the victim restitution order on four grounds.
1. Pre-existing egg stains
Samuel first complains that Judge Meza ordered him to pay restitution for egg stains caused by an egging incident that occurred in the summer of 2007. Specifically, he contends "[t]here is no reliable evidence showing that [he] had anything to do with the prior incident, " and Judge Meza "failed to consider the effect of the egg stains that were unrelated to this incident." We reject these contentions.
Although there is no specific direct evidence that Samuel was involved in egging Crawford's house in the summer of 2007, Deputy Abutin testified that when Samuel confessed to egging Crawford's house on February 23, 2008, he also admitted he had previously egged the house two or three other times. We have concluded that the Samuel's confession was voluntary and thus admissible. Deputy Abutin also testified that Travis told him that Samuel had thrown eggs at the house on other occasions. Also, the reporter's transcript of the adjudication proceeding on the felony petition shows that in presenting the People's case, the prosecutor segregated the damages caused on February 23, 2008.
2. Restitution "likely paid" by two other boys
Samuel next contends that "[t]he other two boys who admitted involvement in the present incident... likely paid restitution to the victim as part of their probation agreements" (italics added), and the victim (Crawford) "is not entitled to be reimbursed by several sources for the same damages." These contentions are unavailing.
A victim's testimony about the value of his losses constitutes prima facie evidence of that value. (See People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.) When the victim has presented prima facie evidence of the amount of his economic losses, " 'the defendant must come forward with contrary information to challenge that amount.' " (Ibid.) Absent such a challenge, a trial court does not abuse its discretion by awarding restitution in the amount established by the victim's prima facie evidence. (Ibid.)
Here, by asserting the other boys "likely paid restitution, " Samuel is presenting speculation in lieu of citations to evidence in the record in his attempt to challenge the victim restitution award. He did not submit any evidence of any restitution payments paid or owing by anyone other than himself. We conclude Samuel has failed to show Judge Meza abused her discretion.
3. Mitigation of damages
Samuel next contends Crawford was obligated to mitigate his damages by offering Samuel's mother's offer to power wash his house. He asserts that if Crawford had accepted the offer, it is "highly likely" the egg stains "would have been totally removed, " and "the damages would not li[kel]y have exceeded $400, and felony charges would not have been possible." We reject these contentions as Samuel is again presenting speculation in lieu of citations to evidence in the record.
4. Rate charged for Crawford's time
Last, Samuel complains that Crawford "billed" him a total of $94.50 for the 2.25 hours, at $42 per hour, that Crawford "spent aiming a garden hose at his house" during the initial cleanup. He contends this charge is unreasonable because it is calculated at $42 per hour, which is his rate of compensation as a flight instructor, and "[t]here is no indication in the record that [Crawford] missed any work or lost any profits due to the time he spent hosing down the walls of his house." This contention is unavailing.
Samuel acknowledges that "[h]ad [Crawford] paid someone a reasonable amount for the work, that amount could have been included." He had the opportunity to present evidence on the issue of what was a reasonable amount for the work, but he did not present any such evidence. Crawford's testimony constituted prima facie evidence that the cost of the work was $94.50, and Judge Meza did not abuse her discretion in awarding that amount as Samuel presented no evidence to challenge it. (See People v. Keichler, supra, 129 Cal.App.4th at p. 1048.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., IRION, J.
(3) Destroys." (Italics added.) Subdivision (b)(2)(A) of that section provides: "If the amount of defacement, damage, or destruction is less than four hundred dollars ($400), vandalism is punishable by imprisonment in a county jail not exceeding one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment." (Italics added.)