In re Richard L.

Filed 8/29/07 In re Richard L. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Douglas N. Gericke, Judge. Affirmed.

Sachi Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett Beaumont, Elizabeth A. Hartwig, and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.

Introduction

Alleging abuse of discretion, appellant Richard L. (appellant) seeks modification of the trial courts restitution order. Finding no error, we will affirm.

Factual and procedural history

On October 23, 2005, appellant was arrested and taken to Juvenile Hall when his mother called police after a family argument. Two days later the District Attorney of San Bernardino County filed a Welfare and Institutions section 602 petition (the Petition) charging appellant with three counts of misdemeanor battery against various family members and one count of misdemeanor vandalism for breaking his mothers cell phone. (Pen. Code, 242 & 594, subd. (b)(2)(A).)^[1] On October 26, 2005, appellant admitted the vandalism and the juvenile court dismissed the battery allegations. The court released him to the care of his mother under the SUCCESS probation program, with terms and conditions. One of the terms was that he not possess or have under your control any aerosol paint containers, permanent markers or etching devices. The court imposed this condition because appellant, also known as PACSER, was a member of the tagging crew Dedicated to Art or DTA. A review hearing was set for February 7, 2006.

Meanwhile, on December 9, 2005, appellant was found to be in possession of a folding knife at school. On March 6, 2006, the district attorney filed an amended Welfare and Institutions section 602 petition (the Petition Subsequent) alleging felony burglary ( 459, count 1); felony graffiti vandalism ( 594, subd. (b)(1), count 2); and having a weapon at school, also a felony ( 626.10, subd. (a), count 3.) The burglary and vandalism allegations arose from an incident that predated appellants earlier grant of probation; it had occurred sometime between September 15 and September 20, 2005, when a vacant rental house was spray-painted with graffiti inside and out.

At a jurisdictional hearing on the Petition Subsequent on March 8, 2006, a delivery driver testified that on September 15, 2005, he found the house in question locked and vacant with no graffiti evident on the outside. A property manager who inspected the house five days later found the front door and two windows open and extensive graffiti damage inside and outside of the house. DTA and PACSER were spray-painted on one outside wall, on the entry-area tile floor, and on the walls of the laundry room, the kitchen, the dining room, the living room, three bedrooms, two bathrooms, and the hallway. SCR and MIST were also spray-painted in many of the same locations. Some of the graffiti appeared to be written over other graffiti.

Two graffiti task force police officers who investigated the matter after receiving an anonymous tip testified at the jurisdictional hearing. Officer Barilics said when he questioned appellant he admitted to spray painting everything in the vandalized house that said DTA and PACSER, but that the door and window were already open when he entered the property. Barilics believed that more than one tag crew was involved in the vandalism. Officer Gabera testified that DTA and PACSER were spray painted in several places in appellants own house, including in his room, inside two closets, on door frames, and in the patio. One closet also had LCE, SONK, and DS2C, as well as DTA and PACSER painted inside it. Gabera believed these were from several different tag crews.

A State Farm Insurance Company claims agent testified that the company paid a total of $5,353.10 to paint and repair the vandalized rental house. One of appellants teachers and a school security officer testified that appellant had a folding knife at school on December 9, 2005. At the end of the jurisdictional hearing on the Petition Subsequent, the court found counts 2 and 3 true and referred the matter to the probation department for a report.

Appellant admitted to the probation officer who interviewed him on March 29, 2006, that he associated with the DTA tagging group and used the street name PACSER. But he adamantly denied vandalizing the property. He suspected that the police had lied and believed they had unfairly arrested him. Regarding the charge for having a knife at school, he said he had lent his shorts to a friend who left a knife in the pocket. The report noted that appellant had been doing poorly on probation for several months. Although he had completed his community service requirement, he had failed to keep several counseling appointments; had not attended the drug and alcohol abuse classes to which he had been referred; he was missing a lot of school; and his latest academic report contained four Fs and one D. Appellant refused to take responsibility for his actions and demonstrated a lack of remorse. The report recommended that appellant be continued on probation under all the same terms imposed in November 2005 with the addition of four more.

At the disposition hearing on April 7, 2006, the court adopted the recommendations in the probation report. Appellant was continued on probation in the custody of his mother on the terms imposed on November 9, 2005, plus the recommended additional four: he was to make restitution to the victim in the amount of $5,413.10; he was not to associate with the victim; he was not to possess paint, aerosols, permanent markers, or etching devices except under adult supervision; he was to serve 100 hours of additional community service. Appellant requested a hearing on the restitution issue and the court continued the matter to the following month.

At the restitution hearing on May 5, 2006, appellants counsel argued that because the house was damaged by more than one tagging crew his client should only have to pay for painting those specific parts of the house where he actually sprayed graffiti. Counsel thought $500 would be an appropriate amount for his client to pay. Before imposing the full $5,413.10 recommended in the probation report, the court first noted the difficulty of proportioning responsibility. As far as having the Court try and say that for six or eight inches of writing that we would have to proportion the amount of paint and rehabilitation costs for only those things that he [sic] could be directly attributed to the minor, I dont think that works very well. When you have to paint a wall, you have to paint the entire room . . . . You cant paint a portion of them and say the damages [sic] is repaired. [] And thats what happens when you go in and damage someones property. It can be very, very, expensive. And the person who owns the property is entitled to have his house put back in the case that it was in before. And theres no rational or convenient way to proportion that out when we have no other persons before the Court who have been found to have caused the damage.

Discussion

Standard of Review:

A juvenile court has broad discretion to impose terms and conditions of probation designed to achieve justice and enhance the reformation and rehabilitation of the juvenile. A court acts within its discretion if the restitution order is reasonably related to the crime the defendant was found to have committed or to the risk of future criminality. (Welf. & Inst. Code, 730, subd. (b).) We review a restitution order for abuse of discretion. (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) No abuse of discretion will be found if there is a factual and rational basis to the restitution order. (Ibid.)

Restitution:

[A] victim of conduct for which a minor is found to be a person described in [Penal code] Section 602 who incurs any economic loss as a result of the minors conduct shall receive restitution directly from that minor. (Welf. & Inst. Code, 730.6, subd. (a)(1).) A victims right to restitution is to be broadly and liberally construed. (In re Johnny M., supra, 100 Cal.App.4th at p. 1132.) Restitution is not limited to losses directly caused by the minor; it may include losses caused by conduct the minor partially participated in or conduct the minor aided and abetted. (In re S.S. (1995) 37 Cal.App.4th 543, 550.) Restitution may help a minor understand that he or she has harmed others and has a responsibility to make them whole; such a purpose would be directly undermined by a rule that each participant in a criminal scheme may be held responsible only for a portion of the overall harm. (Ibid.) The juvenile court is therefore vested with discretion to allocate restitutionary responsibility in a manner that will effectuate the legislative objectives of making the victim whole, rehabilitating the minor, and deterring future delinquent behavior: While the juvenile court should take into account other culpable parties in imposing a restitution order, there are no rigid guidelines for apportionment. Responsibility of criminal confederates is merely one factor to be considered by the court in exercising its discretion. (In re Brian S. (1982) 130 Cal.App.3d 523, 533.)

Furthermore, as this court has held on more than one occasion, Where two or more persons act in concert, it is well settled both in criminal and in civil cases that each will be liable for the entire result. (People v. Campbell (1994) 21 Cal.App.4th 825, 834, quoting People v. Flores (1961) 197 Cal.App.2d 611, 616, italics added.) Joint and several liability . . . increases the likelihood that the victim will be fully compensated, which is an important component of the restitution scheme. (People v. Zito (1992) 8 Cal.App.4th 736, 744.) Properly imposed restitution serves the salutary purpose of making the criminal understand that he has harmed not only society, but individual human beings -- and that he has a responsibility to make the victim whole. (Ibid; see also People v. Madrana (1997) 55 Cal.App.4th 1044, 1048.)

We see no reason for this principle not to be extended where, as here, there happens to be only one responsible offender before the court. There is no doubt that the victim, the owner of the damaged house, suffered economic loss from appellants criminal conduct and was entitled to restitution directly from him. (Welf. & Inst. Code, 730.6, subd. (a)(1).) Appellants moniker and the initials of his tagging crew were spray-painted not only on an outside wall, but throughout the interior of entire the house. Appellant had spray painted the entry area tile floor, the walls of the laundry room, the kitchen, the dining room, the living room, three bedrooms, two bathrooms, and the hallway.

Moreover, the restitution order and allocation of responsibility had a rational and factual base. (In re Johnny M., supra, 100 Cal.App.4th at p.1132.) The court had the repair bill for more than $5,000 in front of it. The court was absolutely correct that apportioning the cost of painting segments of the damaged walls would not only be difficult, but would not make the victim whole: When you have to paint a wall, you have to paint the entire room . . . . Thus, even if no other tagging team had been involved, the damage appellant caused would have necessitated the painting of the whole house. Nor would apportionment for a small amount of the damage have served the salutary purpose of teaching appellant that damaging someone elses property can be very, very, expensive. (People v. Zito, supra, 8 Cal.App.4th at p. 744.)

Finally, although appellant may not have been the only person who sprayed graffiti in the victims house, he was a major participant in the vandalism and was therefore jointly and severally liable for the result. (People v. Campbell, supra, 21 Cal.App.4th at p. 834.) Restitution does not have to be limited to losses he directly caused. (In re S.S., supra, 37 Cal.App.4th at p. 550.)

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

RICHLI

J.

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^[1] Unless indicated, all further statutory references will be to the Penal Code.