In re David L.

Filed 1/12/07  In re David L. CA6

Received for posting 1/23/07

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Statement of the Case

            On August 26, 2005, the Santa Cruz County District Attorney's Office filed a petition under Welfare and Institutions Code section 602 to declare David L., a minor, a ward of the court.[1]  The petition, as later amended, alleged five counts of felony vandalism and one count of possession of marijuana.  (Pen. Code, § 594, subd. (a); Health & Saf. Code, § 11357, subd. (e).)  After the minor was deemed eligible for deferred entry of judgment (§ 790), he admitted all counts and was advised that he faced a maximum commitment of five years and eight months.  The juvenile court then granted deferred judgment for two years.

            On February 3, 2006, the district attorney filed a second petition.  As amended, it alleged five counts of misdemeanor possession of marijuana.  (Health & Saf. Code, §  11357, subd. (b).)

            On February 7, 2006, the minor denied the allegations in the second petition, and the court held a restitution hearing concerning the acts of vandalism.  On February  22,  2006, the minor admitted two counts of possession, the other three were dismissed, deferred entry of judgment was revoked, the minor was declared a ward of the court, and the restitution hearing was concluded.  The minor and other minors were found jointly and severally liable for (1) $3,900.00 for damage to a retaining wall owned by Catherine and Jeffery Thermond; and (2) $2,567.47 for damage to a train trestle and two retaining walls belonging to the City of Capitola (City).

            The minor appeals from the restitution order.  He claims the court abused its discretion in including in the amount of restitution to the City the cost of repainting a retaining wall a second time.

            We agree and reverse the restitution order.

Background[2]

            As noted, the minor admitted vandalizing a paint trestle and two retaining walls with graffiti.  The minor and others were seen vandalizing the property, and he was later found and arrested.  A search at the time of the arrest revealed marijuana, marijuana plants, beer, stencils, and spray paint.

            Ed Morrison, assistant public works director for the City, testified about the cost of repairing the vandalism.  He said that the total cost of the repairs was $2,627.47.  He testified that covering the graffiti on the Wharf Road retaining wall and getting the color to be true was a two-coat job.  On August 24 and 25, 2005, within days of the vandalism, the wall was painted with two coats of Plymouth Gray, which was the color of the wall before the vandalism occurred.  However, in December it was repainted.  Morrison explained that the City Council did not like the first color and decided to have the wall repainted with a color that blended better an adjoining architectural wall, which was a more natural color, that the City Council liked.[3]  Two coats were needed to cover the Plymouth Gray.  Performance Painting did the work.  The first coat was a color called Cargo, which no one liked; the second coat was a color called Crème de Carmel, which passed muster.  Of the $2,627.47 total cost of repairs, $1,010.00 represented the amount paid for the December repainting, of which $810.00 went to Performance Painting and $200.00 was for the time Morrison spent consulting with the company about the repaint job.

            In including the cost of the second repainting in the restitution award, the juvenile court opined that the damage to the wall by the vandalism was aesthetic but real.  It noted that the City Council sought to put the wall â€