Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 52-003500
THE COURTIt is ordered that the opinion filed herein on March 23, 2009, be modified as follows:
Delete part III in its entirety, beginning on page 8 of the opinion and ending on page 11 of the opinion, and replace with the following new part III:
III
The minor contends the juvenile court erred in awarding $1,000 for replacement of the decorative rock group, because any damage was de minimis and there was no evidence of the costs of repair or replacement. We disagree.
In its restitution order, the juvenile court addressed the issue of “Decorative Rockwork” as follows: “From the testimony of [the original builder of the pool] and Exhibits 5, 6, 7, and 8, the Court finds that the minors’ conduct resulted in several rocks in the waterfall grouping being dislodged, and a part of one rock in the decorative rock grouping being broken off. The Court finds that the rocks in the waterfall can be repaired to their condition prior to the vandalism by re-mortaring the loose rocks, and re-grouting the entire waterfall so the grout color will match. [The builder] testified that it would cost approximately $350.00 for this repair. The Court further finds that the damaged rock in the decorative rock grouping must be replaced in order to return the rock grouping to its condition prior to the vandalism. As it would be nearly impossible to find a replacement rock of the same size and color, the victim is awarded restitution of $1,000.00 for replacement of the decorative rock grouping. Therefore, the victim is awarded the sum of $1,350.00 as restitution for the decorative rock work.” (Italics added.)
We first consider the minor’s claim that the photographs, exhibits 7 and 8, were not introduced in evidence. We conclude the photographs were before the court for its consideration; any evidentiary objection has been forfeited, and the forfeiture was not prejudicial.
When the restitution hearing began in July 2006, counsel for M.G. noted, “Your Honor, for the record, part of the reason we can’t do a full hearing today and the District Attorney is aware, we have requested the photographs that were taken. We have asked to produce, and they have not yet been produced.”
When the restitution hearing resumed on October 27, 2006, the prosecutor requested a stipulation to admit certain exhibits, including exhibits 5 (pool waterfall, close-up), 6 (pool waterfall, distant), 7 (rocks next to pool and patio), and 8 (rocks, close-up). According to the reporter’s transcript, the minor’s counsel replied, “I do not stipulate to the photographs[’] admissibility,” and M.G.’s counsel stated, “Likewise.” The clerk’s minutes for October 27 indicate that exhibits 1 and 2 had previously been admitted into evidence; and exhibits 3, 9, 10, and 11 were admitted on that date. No mention is made of exhibits 5 through 8. The minutes end with the notation that “[e]xhibits entered into evidence are retained in the court file.”
The reporter’s transcript master index of exhibits indicates that M.G. had exhibits 5 through 8 marked for identification on October 27, 2006. The index further suggests that the exhibits were entered into evidence on that date. However, unlike with certain other exhibits, the index does not list the page and line of reporter’s transcript where exhibits 5 through 8 were entered into evidence. As we have noted, the reporter’s transcript itself does not show the exhibits being admitted.
When the restitution hearing resumed on December 1, 2006, exhibits 12 through 15 were marked and entered into evidence. The clerk’s minutes for that date end with the notation, “[e]xhibits 1-15 will continue to be retained in the court file.”
When the hearing next resumed on December 8, 2006, the court considered exhibits 16 through 28. Near the end of the hearing, the parties discussed a reporter’s transcript of a prior hearing in this matter. The court remarked that the transcript was “in my Court’s file. So I take notice of anything in the Court’s file.” The court then reiterated, “I will take notice of everything in the Court’s file....”
While the appellate record is not free from ambiguity, it appears that exhibits 7 and 8 were not entered into evidence by stipulation; nor is it clear that the prosecutor or either minor ever formally moved them into evidence. However, the minute order stated that the exhibits would be “retained in the court file,” and the juvenile court stated its intent to “take notice of everything in the Court’s file,” which necessarily included exhibits 7 and 8.
In lieu of oral summations, the prosecution submitted a written “People’s Summary of Restitution requested Re: 11/18/05 Petition.” Regarding the rocks, the summary stated: “$6,000 Rock Work.. [Sic.] If the rocks were not damaged and they were just removed and could be repositioned and remortared back in then the cost would be a ‘couple of hundred bucks.’ [Citation.] The rocks, however, were damaged, as can be seen in Exhibits #5-8[].”
Both minors submitted written responses to the prosecution’s summary. Neither minor objected to the prosecution’s citation of, and reliance upon, exhibits that were in the court’s file but had not been formally entered into evidence.
The prosecution filed a written reply to the minors’ responses. In its discussion of the rocks, the reply again expressly referred to exhibits 5 through 8.
Thereafter, the juvenile court entered its written restitution order as set forth above. The order conspicuously relied on exhibits 5 through 8. Neither minor objected that the court had improperly taken notice of exhibits 5 through 8, or that they otherwise were not properly before the court.
“‘A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion;...’ (Evid. Code, § 353, italics added.)... The reason for the rule is clear—failure to identify the specific ground of objection denies the opposing party the opportunity to offer evidence to cure the asserted defect. [Citation.] ‘While no particular form of objection is required [citation], the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.’ [Citation.]” (People v. Holt (1997) 15 Cal.4th 619, 666-667.)
In this case, the minor’s written summation did not object that the prosecutor had improperly relied on exhibits 5 through 8 in his opening summation. Nor did the minor object to the prosecutor’s citation of the exhibits in his closing summation. Thus, the minor never alerted the People that the exhibits were not properly before the court or that further action by the People was necessary to cure an evidentiary defect. Nor did the minor object to the juvenile court’s discussion of the exhibits in its order. The minor never asked that the exhibits be stricken from the court file or that reference to the exhibits be stricken from the written restitution order. Thus, the minor has forfeited his claim of evidentiary error. (People v. Holt, supra, 15 Cal.4th at pp. 666-667.)
As the juvenile court found, and as the minor concedes, exhibits 7 and 8 show that a portion of one rock next to the pool and patio has been broken off. Having examined the photographs, we conclude the juvenile court did not abuse its discretion when it failed to find this damage “de minimis.” (People v. Giordano (2007) 42 Cal.4th 644, 663, fn. 7 [standard of review is abuse of discretion]; In re Johnny M., supra, 100 Cal.App.4th at p. 1134 [applying that standard].) Alternatively, even if the photographs are not considered, the victim testified that certain rocks had been hammered upon. The court could deduce that hammering on decorative rock had caused damage that was greater than de minimis.
The minor claims the restitution for the damage to the rock group should have been limited to “the diminution in value the spot makes to the pool, or the victim’s real estate.” Because no evidence was presented as to either measure of “diminution in value,” no evidence supports the minor’s argument that the diminution was less than the $1,000 awarded by the juvenile court.
The builder of the pool provided exhibit 1, an estimate of the costs to perform various repairs. The estimate includes $5,500 to replace two moss rock waterfalls, and $900 for “Misc. Moss Rock on Beam and Jump Rock.” At the hearing, the builder testified that it would cost approximately $6,000 to “re-do the rock, all the rock[,] because the rock won’t match.” The builder testified that he did not recollect having seen any damage to any rocks that had been hammered on. Thus, he never identified the “Misc. Moss Rock on Beam and Jump Rock” listed in his estimate as being the decorative rock grouping visible in exhibits 7 and 8. However, the photographs suggest the decorative rock grouping was only a small portion of the rock installed on the victim’s pool. Even if the photographs are not considered, there was no contention that the decorative rock grouping was more than a small portion of the total. The court could deduce that, if all the rocks could be replaced for approximately $6,000, then the decorative rock grouping could be replaced for about $1,000.
Finally, the juvenile court did not err in concluding that the rock grouping had to be replaced rather than repaired. The pool builder testified that chlorinated water in pools alters the color of rocks and that a replacement rock would look different than existing rocks. Although the testimony appeared to relate most specifically to rocks that comprised portions of the waterfall spillway, the court could deduce that that the principle also applied to the chipped rock at the edge of the pool. There was no abuse of discretion.
This modification does not change the judgment.
The petition for rehearing is denied.
NICHOLSON, Acting P. J., ROBIE, J.