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In re D.L.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Oct 17, 2018
A152104 (Cal. Ct. App. Oct. 17, 2018)

Opinion

A152104

10-17-2018

In re D.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.L., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1601123)

On January 17, 2017, the San Mateo County District Attorney filed a petition under Welfare & Institutions Code section 602 alleging that appellant D.L., born September 2001, committed misdemeanor vandalism (Pen. Code, § 594, subd. (b)(2)(a)), misdemeanor public intoxication (Pen. Code, § 647, subd. (f)), and misdemeanor giving false information to a police officer (Pen. Code, § 148.9, subd. (a)). Appellant admitted the vandalism charge, the remaining charges were dismissed, and the case was ordered transferred to Contra Costa County.

All undesignated statutory references are to the Welfare & Institutions Code.

The charges arose out of a January 13 incident during which appellant and a friend were detained after midnight for public intoxication and transported to a South San Francisco Police Department station. While waiting in an interview room, appellant removed makeup from her purse and wrote "FUCK" on the wall with lipstick or lip gloss. A police officer unsuccessfully attempted to clean the wall.

Because appellant admitted the vandalism charge, the facts are taken from the probation report. (People v. Rubics (2006) 136 Cal.App.4th 452, 454, fn. 2, disapproved on another ground in People v. Martinez (2017) 2 Cal.5th 1093, 1107, fn. 3.)

In February 2017, appellant was adjudged a ward of the court and ordered to reside at home with her parents after completion of a residential treatment program. A restitution hearing was held on July 24, during which the parties discussed a $682.00 invoice for repainting the interview room. The trial court ordered appellant to pay $682.00 in restitution to the South San Francisco Police Department for damages resulting from the vandalism charge.

The details of appellant's conduct while in residential treatment and thereafter are irrelevant to the issue on appeal.

On appeal, appellant challenges the restitution award. Section 730.6, subdivision (h)(1) directs the juvenile court to order restitution "of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor's conduct" unless it finds a "compelling or extraordinary reason" for not doing so. " '[T]he court may use any rational method of fixing the amount of restitution, provided it is reasonably calculated to make the victim whole, and provided it is consistent with the purpose of rehabilitation.' [Citation.] The court may order full or partial payment for the value of stolen or damaged property and has the discretion to assess the value of stolen or damaged property at 'the replacement cost of like property, or the actual cost of repairing the property when repair is possible.' (§ 730.6, subd. (h)(1).)" (In re Alexander A. (2011) 192 Cal.App.4th 847, 853-854.) We review the juvenile court's restitution award for abuse of discretion. (Id. at p. 852.)

In the present case, it is apparent that at the restitution hearing appellant's counsel had in her possession a copy of a painting invoice in the amount of $682.00. Counsel stated, "So we're here today regarding a restitution bill from the South San Francisco Police Department for $682.00 to repair an entire interrogation room as the result of a small amount of writing on the wall written with lipstick or lip gloss." She also commented, "looking at the invoice, I'm confused as to what the thirty minutes of equipment use at a hundred dollars an hour was. I'm not sure what that equipment was or why it was only needed for thirty minutes if they were painting for eight hours." Appellant presented testimony from a witness who searched online for methods of cleaning lipstick or lip gloss off walls. The witness testified the online search indicated lipstick or lip gloss can be removed with toothpaste, rubbing alcohol, or "a citrus-based solvent." Appellant's counsel objected to a $682.00 restitution award, arguing "there were a number of other options that took a Google search to find that would remove lipstick or lip gloss from the wall . . . . Each of these would have taken only a few minutes and a few dollars to purchase the supplies. Other options that existed could have been repainting over just the spots where the writing was or just one wall. I don't see any reason why they needed to repaint the whole wall."

In response, the prosecutor argued that the police department did unsuccessfully attempt to clean the wall, that the department had no duty to mitigate the cost, and that the department "provided the amount of cost to do that." The prosecutor also observed, "it's common knowledge that San Francisco has some high labor costs as just part of their city policy and regulations. And so they gave us an amount $682.00 to paint a room is fair."

Appellant argues the juvenile court's restitution order was not supported by substantial evidence because "no exhibits were lodged with the court and made a part of the record." Appellant forfeited his claim. (People v. Brasure (2008) 42 Cal.4th 1037, 1075; see also People v. Garcia (2010) 185 Cal.App.4th 1203, 1218 ["An objection to the amount of restitution may be forfeited if not raised in the trial court."].) At the restitution hearing, appellant objected on the basis that it was unnecessary to paint the room, not that $682.00 was an excessive expense to paint the room. His objection to the requested award on the one ground did not preserve his objection on the other. As the Garcia court observed, "The appropriate amount of restitution is precisely the sort of factual determination that can and should be brought to the trial court's attention if the defendant believes the award is excessive." (Garcia, at p. 1218.) Had appellant objected to the adequacy of the proof of the $682.00 expense, the juvenile court could have taken the invoice into evidence or given the prosecutor an opportunity to present other evidence. Accordingly, rejection of appellant's claim is fully consistent with the "considerations of judicial economy" underlying the forfeiture doctrine. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1469.)

We do not construe appellant's counsel's expression of confusion regarding the 30-minute equipment rental as an objection to inclusion of that expense in the restitution award. --------

Respondent argued in its brief on appeal that appellant forfeited his claim, but appellant failed to file a reply brief. While this is not an admission the appeal lacks merit (Ellerbee v. County of Los Angeles (2010) 187 Cal.App.4th 1206, 1218, fn. 4), we will not endeavor to respond to respondent's argument on appellant's behalf (see Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11; Burchett v. City of Newport Beach (1995) 33 Cal.App.4th 1472, 1481).

The juvenile court's restitution award is affirmed.

/s/_________

SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.


Summaries of

In re D.L.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Oct 17, 2018
A152104 (Cal. Ct. App. Oct. 17, 2018)
Case details for

In re D.L.

Case Details

Full title:In re D.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Date published: Oct 17, 2018

Citations

A152104 (Cal. Ct. App. Oct. 17, 2018)