P. v. Akiyoshi

Filed 7/24/07 P. v. Akiyoshi CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I. Sandoval, Judge. Affirmed as Modified.

Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Derek Akiyoshi was charged with 20 counts of felony vandalism of buses belonging to the Metropolitan Transit Authority (MTA). He pleaded no contest to three counts. Defendant entered into a Harvey waiver,[1] and was sentenced to five years of probation and 500 hours of graffiti removal. The court further ordered defendant to pay MTA restitution in the amount of $34,814 pursuant to Penal Code section 1202.4.[2]

Defendant appeals, contending there was insufficient evidence to justify the trial courts restitution order. We hold there was insufficient evidence to support a portion of the restitution order, and direct that the order be modified to reflect an award of $30,814.

Factual and Procedural Summary

Between November 2003 and October 2004, defendant vandalized MTA buses by marking or etching his moniker AZMAH on air conditioning vents and windows. Photographs were taken of the sections of the buses damaged by defendants moniker. Deputy Loren Worthington, a Deputy Sheriff for Los Angeles County assigned to the Metro Special Problems Unit, presented the photographs to defendant. Defendant acknowledged the damage he caused by signing each relevant photograph with his initials and the approximate date on which the damage occurred.

Defendant was charged with 20 counts of felony vandalism. He pleaded no contest to counts 1, 2, and 3; counts 4 through 20 were dismissed. Defendant was granted five years of probation and ordered to perform 500 hours of graffiti removal. The judge also stipulated that restitution would be determined at a later hearing pursuant to section 1202.4. Defendant waived his rights under People v. Harvey, supra, 25 Cal.3d 754, allowing the damage alleged in the dismissed counts to be taken into consideration when determining the restitution order.

The restitution hearing began on July 11, 2005. The prosecution presented testimony from Deputy Worthington and John Gregory Freeman, the equipment maintenance supervisor at the Regional Rebuild Center of the MTA. During the hearing, the photographs of damage for which defendant admitted responsibility were entered into evidence. Additionally, Deputy Worthington provided a report he prepared following the investigation, which listed the cost of repair necessary for each bus damaged by defendant. Deputy Worthington testified that he received information regarding the costs of repair listed in the report from Mr. Freeman.

Deputy Worthingtons report listed two separate amounts for repair costs. The original amounts indicated on the report were collected by officers during the investigation between 2003 and 2004. Deputy Worthington received the updated amounts from Mr. Freeman during his final investigation in 2005.

The total updated cost of repairs was $46,814. The trial court found, however, that some of the vandalized buses were damaged by taggers other than defendant. The court therefore reduced defendants responsibility for the cost to repair these buses by half. Defendant was thus ordered to pay the MTA $34,814 in restitution.

Discussion

1. The Restitution Statute

In 1982, California voters enacted Proposition 8 (Cal. Const., art. I,  28, subd. (b)), which provided in part that victims of criminal activity have the right to restitution from the perpetrator of the crime for losses they have suffered as a result of that activity.

Directly thereafter, section 1202.4 was enacted, which controls restitution. In its current form, section 1202.4 provides, in pertinent part:

(f) . . . in every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. [] . . . [] (3) To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of defendants criminal conduct, including, but not limited to, all of the following: [] (A) Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible.

2. Standard of Review

The trial court is vested with great discretion in fixing a restitution award. That discretion, however, is not unlimited. Although the trial court is not required to make an order in keeping with the exact amount of loss, it must use a rational method that could reasonably be said to make the victim whole, and there must be a factual basis for the award. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.)

3. Analysis

a. Actual Cost of Repair

Defendant contends that the evidence presented at the restitution hearing failed to establish the actual cost of repair to the MTA buses because it did not include specific figures for the employee hours required to repair the buses, the cost of paint, and the hourly rate of labor. Without this information, defendant argues there was insufficient evidence to justify the award. This argument is without merit.

A trial court may use any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole. (In re Brian S. (1982) 130 Cal.App.3d 523, 531.) It was rational for the court to use Mr. Freemans estimates in calculating the restitution. Mr. Freeman supervised the body shop at the Regional Rebuild Center. One of his duties as supervisor was to know how to calculate repair estimates for the buses using MTAs costs.

Mr. Freeman testified that he used MTAs computer to look up the cost of the parts and the amount of labor required to replace windows. He then took that figure and calculated the estimate using the cost of labor given to him by the body shop. For painting the sides of the buses, he went directly to MTAs paint shop and asked what the costs of parts and labor would be. Based upon Mr. Freemans testimony, it was reasonable for the trial court to use his estimates in calculating the restitution award.

Defendant relies on People v. Vournazos (1988) 198 Cal.App.3d 948to support his argument that the lack of itemized, verifiable costs makes the restitution award unjustifiable. His reliance is misplaced. In Vournazos, the appellate court rejected using a car theft victims statement as to the damage, without more evidence of the actual costs of repair. The victim did not consult with a mechanic, nor was he a mechanic himself. Thus, the court found that the evidence the prosecution presented was mere hearsay, and therefore insufficient to support the restitution award. In contrast, in this case, Mr. Freeman is a maintenance supervisor who oversees $9 million worth of repairs to MTA buses each year. He based his estimates on the cost of replacement parts and the amount and cost of labor required to replace or repair the damaged parts His testimony provided sufficient evidence of MTAs repair costs to support the restitution award.

b. Adjusting Repair Costs for Inflation

Defendant argues that the trial court improperly based its restitution amount on repair estimates from 2005, even though the damage was done in 2003-2004. He maintains that the 2005 costs are 15-20 percent higher than the costs would have been in 2003-2004. Therefore, defendant asks this court to order restitution based on the estimates collected during the 2003-2004 investigation, as evinced by the original amounts in Deputy Worthingtons supplemental report. In the alternative, defendant requests that we reduce the amount of restitution by 20 percent, to correct for inflation.

Defendant did not request the court to use the 2003-2004 estimates in its calculation, nor did he ask that the court reduce the repair costs to account for inflation. Consequently, defendant has forfeited this issue on appeal.

In any event, [t]here is no requirement the restitution order be limited to the exact amount of the loss in which defendant is actually found culpable. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) As long as there is a factual and rational basis for the restitution amount ordered, the court need not use a fair market value standard at the time the crime was committed. (In re Brian S., supra, 130 Cal.App.3d at p. 532.) As noted above, we find the courts calculation of the cost of repair to be both rational and factually supported. Therefore, we conclude that it was reasonable for the court to use damage estimates from 2005 in awarding restitution.

c. Insufficient Evidence for Certain Repair Costs

The photographs entered into evidence at the restitution hearing depict 30 MTA buses vandalized by defendant. Each MTA bus has its own unique DR number. The evidence is organized by DR number, with each exhibit representing a single damaged MTA bus. In many cases, defendant vandalized a single bus more than once; therefore, many of the individual exhibits contain more than one photograph. Each photograph depicts defendants moniker, etched or marked onto the windows or air conditioning vents of the buses. In the case of damage committed to air conditioning vents, it is sometimes extremely difficult to tell exactly which portion or side of the bus has been damaged, based on the photographs alone.

Air conditioning vents run along both sides of a bus along the interior. Each vent is divided into two or three sections of panel. Mr. Freeman testified that when an air conditioning vent is vandalized, MTA must repaint the entire side of the bus to maintain color continuity. It does not matter if only one section is damaged, or if multiple sections are damagedthe entire side is repainted. The cost to repaint one side of a bus is $1600; the cost to repaint both sides is $3200.

Deputy Worthington and Mr. Freeman were both unsure as to whether certain exhibits depicted damage to one side of the bus or to both sides. Specifically, the witnesses gave uncertain testimony regarding Exhibits 17, 33, 44, and 47, but the trial court awarded restitution based upon damage to both sides of the buses at issue. Defendant contends that the amount of restitution for these incidents should be cut in half, citing insufficiency of the evidence to support the restitution awarded.

The court refused defendants request to reduce the amounts of damage in these exhibits based on the courts mistaken belief about Deputy Worthingtons testimony in the restitution hearing. The court believed Deputy Worthington who testified that where the exhibits contain dual photographs, the damage was done to both sides of a bus. As illustrated below, there was no such testimony. In fact, with regard to Exhibits 17, 33, and 47, neither Deputy Worthington nor Mr. Freeman could determine if the depicted damage was to one side or both. Therefore, there was insufficient evidence to support the courts finding that those buses were damaged on both sides.

1. Exhibits 17 and 33

The two photos contained in Exhibit 17 depict two incidents of damage, both signed with defendants initials and the date. It is unclear whether the damage in the two photographs is done to different sides of the bus, or merely to different panels of a vent on the same side. Deputy Worthington testified that defendant admitted causing damage to only one side of the bus, in which case the damage would have been $1600. Mr. Freeman testified that the damage was done to different panels, but that he could not tell from the photos whether the damage occurred on different sides. He nevertheless acknowledged that the supplemental report listed the cost of repair as $3200.

Exhibit 33 included damage to five sections of air conditioning vents. Unlike all other exhibits, Deputy Worthington calculated the cost of this particular incident by section of the air conditioning vents in his preliminary report. He did not testify whether the damage occurred on opposite sides of the bus. However, he acknowledged that his supplemental report indicates that the updated amount was $3200, which reflects the cost of repair to both sides. Mr. Freeman testified that he could not establish whether the images reflected both sides of the bus, but stated that if the damage had been to only one side, the repair cost would be $1600.

The trial court cut the repair costs for these exhibits in half to account for multiple incidents of tagging.[3] We further reduce the costs to repair Exhibits 17 and 33, as we find insufficient evidence in the record to support the courts finding. Defendant is therefore ordered to pay $800 for Exhibit 17, and $800 for Exhibit 33.

2. Exhibit 47

Exhibit 47 includes two photographs depicting two areas of damage. Deputy Worthington testified that he knew that the damage was not on the same piece of panel; however, he could not recall whether the damage was on the same or opposite sides of the bus. Mr. Freeman further testified that the damage did not occur on the same vent, but could not say for sure whether it was on the same side. The amount was listed in the supplemental report as $3200; if the damage occurred on only one side, the correct amount would be $1600.

We again conclude that there was insufficient evidence to support the courts finding that there was damage to both sides of the bus. Accordingly, we reduce this portion of the restitution award by $1600.

3. Exhibit 44

Exhibit 44 consists of two photos. One photo depicts the appellants common tag, AZMAH. The other depicts the word ASMA. Deputy Worthington testified that because this was a recent incident, he was certain that the damage occurred on opposite sides of the bus. However, defendant stated that he did not write ASMA, nor did he sign the photo with his initials and the date. Deputy Worthington testified that because he did not attribute the word ASMA to the appellant, he listed the updated amount as $1600. However, the amount stated in his supplemental report is $3200.

Exhibit 44 presents an issue that is different from Exhibits 17, 33, and 47. Deputy Worthington testified that the bus depicted in Exhibit 44 was damaged on both sides. Defendant nevertheless argues he cannot be ordered to pay the cost to repair both sides because Deputy Worthington testified that he did not attribute the damage on one side to defendant. Defendant is incorrect. The trial court is not limited to imposing restitution for losses resulting from the crimes of which defendant was convicted. The court may also consider uncharged crimes that are apparent based on facts brought forth at trial. (People v. Goulart (1990) 224 Cal.App.3d 71, 79.) During his arrest, defendant admitted to using alternate monikers, including ASMA. Thus, there is sufficient evidence to conclude that defendant was responsible for this incident, as it involved one of his admitted monikers and occurred directly across from damage for which he accepted full responsibility. Therefore, the court did not abuse its discretion by including the cost to repair this damage in its restitution order.

c. Computational Error

Defendant points out that the trial court erred in its calculation of the restitution amount. The trial judge ordered restitution in the amount of $34,814. The People agree that the correct amount should be $34,014. Therefore, the order will be corrected on remand.

Disposition

The restitution order is modified. Defendant is ordered to pay restitution in the amount of $30,814. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1]People v. Harvey (1979) 25 Cal.3d 754.

[2] All further statutory references are to the Penal Code unless otherwise indicated.

[3] Defendant was ordered to pay $1600 for each exhibit, reduced from the updated amount of $3200.