Filed 9/12/19




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                        DIVISION THREE


 In re A.W., a Person Coming Under the
 Juvenile Court Law.


 THE PEOPLE,
                                                      G056266
      Plaintiff and Respondent,
                                                      (Orange Co. Super. Ct.
          v.                                          No.18DL0129; Los Angeles Co.
                                                      Super. Ct. No. MJ24129)
 A.W.,
                                                      OPINION
      Defendant and Appellant.



                  Appeal from a judgment of the Superior Court of Orange County, Fred W.
Slaughter, Judge. Affirmed in part and reversed in part with directions.
                  Steven A. Torres, under appointment by the Court of Appeal, for Defendant
and Appellant.
                  Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos
and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
                                    *          *          *
              The court found it to be true that minor A.W. committed five counts of
                                                  1
felony vandalism. (Pen. Code, § 594, subd. (a).) The court declared minor a ward of the
state and ordered him to serve 37 days in juvenile hall.
              The sole question on appeal is whether the evidence supported a finding
that, for each count, “the amount of defacement, damage, or destruction [was] four
hundred dollars ($400) or more,” as required to elevate the crime from a misdemeanor to
a felony. (§ 594, subd. (b)(1).) The only competent testimony on that issue came from
an employee of the City of Palmdale who helped prepare an analysis of the average cost
to clean up an instance of graffiti.
              We find three flaws in that testimony. First, the use of an average, by itself,
was not enough to prove beyond a reasonable doubt that the amount of damage inflicted
by minor was equal to the average cleanup cost, rather than some other number. The use
of an average, or arithmetic mean, recognizes that cleanup costs for some graffiti is less
than the average, and the cleanup costs for other graffiti exceeds the average. The
average cleanup cost is untethered to the actual damage caused by minor. Second, the
calculation included the cost of law enforcement, which, though proper in certain
restitution settings, was not a proper consideration in assessing the damage minor
inflicted under section 594. Third, Palmdale’s methodology for calculating the average
cost is flawed, for reasons we explain below. Accordingly, there was insufficient
evidence that minor inflicted $400 or more in damages, and thus we reverse the
adjudication in part with instructions to reduce the felony counts to misdemeanors.




1
              All statutory references are to the Penal Code unless otherwise stated.

                                             2
                                          FACTS


                                                                       2
              Minor admitted to 22 taggings in the City of Palmdale. The city workers
who removed the graffiti took photographs of each instance and uploaded the
photographs to a software program called Graffiti Tracker. Graffiti Tracker contains
information about the size of the graffiti, the surface type, the removal method, the date
the photograph was taken, and the date the graffiti was removed. The People submitted
into evidence a printout from Graffiti Tracker for each of minor’s taggings.
              The detective who investigated the matter assigned a remediation cost of
$545 to each incident based on Palmdale’s grafitti restitution cost calculation (Cost
Calculation). Ruth Oschmann, a crime prevention specialist for Palmdale, helped prepare
the Cost Calculation. Because it is central to this appeal, we have attached a copy of the
Cost Calculation as an appendix to this opinion. The Cost Calculation consists of two
parts.
              In the first part, Palmdale calculated the hourly rate of the various city
employees involved in graffiti remediation, as well as the hourly rate of the supplies
involved. The use of an “hourly rate” for supplies is itself a problematic concept, but was
calculated by Palmdale by dividing the total annual cost of graffiti remediation supplies
by the number of hours in a year, assuming a 40-hour workweek. In addition to supplies,
hourly rates were calculated for the following categories: vehicles, staff time, Graffiti
Tracker, and a Los Angeles Sheriff Department graffiti investigator (Palmdale pays for a
full-time investigator). The hourly rates for each of those categories were added together
to come up with a total hourly rate of $327.32 for cleaning graffiti. That was then
divided by 60 to come up with a per minute rate of $5.45.


2
             “Tagging is the term for marking walls and surfaces with graffiti.” (In re
Angel R. (2008) 163 Cal.App.4th 905, 912, fn. 6.)

                                              3
              In the second part of the Cost Calculation, the average amount of time
devoted to various tasks associated with graffiti removal was listed and assigned an
average number of minutes to complete the task. The tasks listed, with minutes in
parentheses, are: work order preparation (5), equipment preparation time (20), travel
time to location (20), time spent at each individual location for graffiti removal (25),
vehicle and equipment clean up time (20), and incident report log preparation time (10).
The total is 100 minutes. The average minutes (100) were then multiplied by the per
minute rate ($5.45) to arrive at an average cost of $545 to clean up a single instance of
graffiti. This figure does not take into account the size of the graffiti, but according to
Oschmann, the additional time it takes to paint over larger graffiti is insignificant. Most
of the time is spent preparing, traveling, setting up, and cleaning up. Oschmann had no
personal knowledge of the graffiti perpetrated by minor.
              At the conclusion of the hearing, minor’s counsel argued the evidence was
insufficient to prove minor had inflicted $400 or more in damages for each count. The
court, without comment on that issue, found the charges to be true beyond a reasonable
doubt. Minor appealed.


                                       DISCUSSION


              Every person who maliciously “[d]efaces with graffiti or other inscribed
material” (§ 594, subd. (a)(1)) “with respect to any real or personal property not his or her
own . . . is guilty of vandalism” (id., subd. (a)). “If the amount of defacement, damage,
or destruction is four hundred dollars ($400) or more, vandalism is punishable” as a
felony. (§ 594, subd. (b)(1).) The sole issue on appeal is whether the People carried the
burden of proving the amount of damages was $400 or more. We review this issue for
substantial evidence. Minor contends Oschmann’s testimony about the average cost of
cleaning up an instance of graffiti was insufficient to meet the People’s burden of proving

                                              4
that the damage inflicted by minor was $400 or more. We agree for three reasons. First,
simply reciting an average remediation cost is inadequate to establish the specific amount
of damage minor inflicted. Second, Oschmann’s testimony about the average cost
included law enforcement costs, which was improper. Finally, Palmdale employed a
flawed methodology in calculating its average costs.


The People Must Establish the Specific Damages Caused by Minor
               Much of the statutory and case law touching on the issue of damages for
vandalism arises in the context of restitution, and the People rely heavily on this area of
the law to support the court’s ruling. To provide some context for the People’s position
that citing the average cost of clean up is sufficient, we begin by setting forth the two
statutory schemes for restitution that apply in graffiti cases, one of which does permit the
use of averages. We then explain why that statutory scheme cannot apply here.
               The first restitution statute that applies in graffiti cases is the Graffiti
Removal and Damage Recovery Program (Graffiti Program). (Welf. & Inst. Code,
§ 742.10 et seq.) The Graffiti Program has two aims: (1) to aid cities and counties in
recouping the costs of cleaning up graffiti (id., subd. (b)), and (2) “[t]o safeguard the
fiscal integrity of cities and counties by enabling them to recoup the law enforcement
costs of identifying and apprehending minors who deface the property of others with
graffiti or other inscribed material” (id., subd. (c), italics added).
               The Graffiti Program implements these aims by permitting a city or county,
by ordinance, to elect to have a probation officer recoup the municipality’s average costs
for the following two categories (Welf. & Inst. Code, § 742.14, subd. (a)): (1) “the
average costs per unit of measure incurred by the law enforcement agency with primary
jurisdiction in the city, county, or city and county in identifying and apprehending” the
minor (id., subd. (b), italics added); and (2) “the average cost to the city [or] county . . .
per unit of measure of removing graffiti and other inscribed material, and of repairing

                                                5
and replacing property of the types frequently defaced with graffiti or other inscribed
material that cannot be removed cost effectively” (id., subd. (c), italics added). If a minor
contends that the use of averages does not reflect the damage actually caused, the minor
is entitled to a hearing to raise that issue, but the burden is on the minor: “[T]here shall
be a presumption affecting the burden of proof that the findings of the court . . . represent
the actual damages and costs attributable to the act of the minor . . . .” (Welf. & Inst.
Code, § 742.16, subd. (h).)
              The second restitutionary scheme is the more general statute, Welfare &
Institutions Code section 730.6, which provides for restitution “in the amount of the
losses,” which “shall be 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”
(id., subd. (h)(1)), and which shall include “the actual cost of repairing the property when
repair is possible” (id., subd. (h)(1)(A)). Under this scheme the court has broad
discretion to award restitution, provided the evidence establishes a “factual nexus”
between the amount sought and the evidence of minor’s actual conduct. (Luis M. v.
Superior Court (2014) 59 Cal.4th 300, 309 (Luis M.).)
              What sets these two statutory schemes apart is that the Graffiti Program
permits the recovery of average costs, as well as law enforcement costs associated with
investigating graffiti. In contrast, “[a]wards under [Welfare & Institutions Code] section
730.6 are based on proof of the damage actually linked to the minor’s conduct and do not
include investigative costs.” (Luis M., supra, 59 Cal.4th at p. 307.) But even under
Welfare and Institutions Code section 730.6, “the court need not ascertain the exact dollar
amount of the City’s losses,” provided “its calculation [has] some factual nexus to the
damage caused by the minor’s conduct.” (Luis M., at p. 309.) Elsewhere our high court
described this inquiry as a “rational estimate of costs.” (Ibid.)
              Neither of these statutory restitution schemes can provide an adequate basis
for determining whether the People have satisfied their burden of proving $400 or more

                                              6
in damages under section 594. It is axiomatic that the elements of a crime must be
proved beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 361.)
Accordingly, the People must prove beyond a reasonable doubt that minor in fact
inflicted damages of $400 or more. This requirement is wholly inconsistent with Welfare
and Institutions Code section 730.6, the more general restitution statute, which requires
only a factual nexus, or rational estimate. The People must prove the elements of the
crime, not approximate them.
              This requirement also precludes the use of a generic average for proving
$400 or more in damages under section 594, as would be permitted under the Graffiti
Program. The fundamental problem with the use of an average is that it leaves
unanswered the following basic question: What if the damage here was below the
average? One might imagine a hypothetical scenario where a minor tags the wall right
outside the maintenance worker’s office, such that the worker simply has to step outside
with a can of paint and a brush and spend two minutes covering it up. The use of an
average in that scenario would work a clear injustice. Fundamentally, the use of an
average, without more, can result in a conviction for crimes that others committed.
              This is not to say that averages and estimates are completely irrelevant. For
example, hypothetically, if it were proved that the average cost of remediating graffiti
was $6,000, and in no event could it be remediated for less than $5,000, that would
satisfy the element of $400 in damages. The average could also provide a useful starting
point for an opinion on damages, provided there was additional evidence bearing on how
minor’s graffiti differed from the average case, and how those differences impacted
actual costs. But it is not enough to simply cite the average cost, particularly where the
average cost is relatively close to the $400 threshold.
              In re Kyle T. (2017) 9 Cal.App.5th 707 is on point. There, as here, the
People relied on a city’s estimate of the average cost to remediate graffiti to supply proof
that the minor had inflicted damages of $400. (Id. at pp. 710-711.) The court rejected

                                              7
that approach, disparaging the average cost as a “generic, one-size-fits-all removal cost of
$400 for every incident of graffiti on City-owned property. . . . [T]his mechanistic flat
rate seems to control the City’s damages calculation in all cases, regardless of the
particulars of a given incident, such as the graffiti’s dimensions, the type of material used
in creating the graffiti, the nature of the surface on which the graffiti was written, and the
method and manpower employed for cleaning up the graffiti. In short, the list reflects a
generalized, non-case-specific damages estimate, not an estimate tethered to the facts of
                           3
[the minor’s] vandalism.” (Id. at p. 714, fn. omitted.)
              Turning to the proof here, it is clear the People were improperly relying on
Palmdale’s average cost estimate under the Graffiti Program to substitute as proof of the
element of actual damages under section 594. (Kyle T., supra, 9 Cal.App.5th at p. 717
[“Welfare and Institutions Code section 742.14 does not authorize use of the average cost
method beyond the restitution context”].) The detective who offered an opinion on
damages based his testimony on the Cost Calculation. And the Cost Calculation reflects
an average cost. It was not tailored to minor’s particular case in any way. While there
were some specific details of minor’s offenses in the record—e.g. the size of the graffiti,
and the type of surface it was on—no witness connected the dots by explaining what the
average case consists of, how minor’s offenses compared to the average case, and how
any differences impacted the actual costs. Accordingly, the evidence was insufficient to
prove minor inflicted damage of $400 or more.




3
              The People distinguish Kyle T. on the ground that, there, the cost sheet was
not in evidence, nor were there photographs or any other specific evidence of the minor’s
vandalism. (Kyle T., supra, 9 Cal.App.5th at p. 711.) We agree that this is a point of
distinction—here the evidentiary record is more complete—but we do not read Kyle T. as
turning on those evidentiary failures. Kyle T. rejected a one-size-fits-all approach to
calculating graffiti damages, and that is precisely what we have here: the use of an
average as a substitute for an individualized damages calculation.

                                              8
Law Enforcement Costs Cannot Be Counted in Calculating Damages
              Even if the average remediation cost were proof enough, the evidence here
suffered from another fatal flaw: It included the costs of law enforcement. Law
enforcement costs cannot be included in calculating damages under section 594.
              On this point, the discussion in Luis M., supra, 59 Cal.4th 300 is
instructive. Although Luis M. was a restitution case, it arose in the context of the more
general restitution statute, Welfare and Institutions Code section 730.6. That statute
permits recovery of the “actual cost of repairing the property . . . .” (Welf. & Inst. Code,
§ 730.6, subd. (h)(1)(A).) Similarly, section 594 requires the People to prove the amount
of “defacement, damage, or destruction,” which we interpret to include the cost of
repairing or replacing the vandalized property. While the two statutes are different in that
the burden of proof is much higher under section 594, they cover roughly the same
categories of costs. What makes Luis M. instructive is that in the context of Welfare &
Institutions Code section 730.6, our high court held that law enforcement costs are not
recoverable: “These general provisions do not authorize restitution orders for law
enforcement investigative costs. [Citations.] ‘Under the relevant case law and the
statutory scheme, public agencies are not directly ‘victimized’ for purposes of restitution
under Penal Code section 1202.4 merely because they spend money to investigate crimes
or apprehend criminals.’” (Luis M., at p. 305.) Instead, restitution is limited to the cost
of repair, replacement, or restoration—these “direct abatement costs” do “not include the
costs of investigation.” (Id. at p. 310.) Given the similarities in the recoverable
categories of costs, investigative costs also cannot be included in the damage calculation
under section 594. (See Kyle T., supra, 9 Cal.App.5th at p. 713 [“As the People
acknowledge, the standard of proof in a restitution case is less exacting than the standard
of proof in a vandalism case. Thus, failure to meet the lower restitution standard would,
by definition, mean failure to meet the standard of proof of the underlying crime”].)
Moreover, unlike the Graffiti Program, which has a specific aim of helping cities and

                                              9
counties recover investigative costs, and specifically permits them, section 594 contains
no such provision.
              Here, once law enforcement costs are excluded, employing the average cost
method does not result in damages of $400 or more. Palmdale estimated an average
hourly rate of personnel and supplies associated with graffiti remediation of $327.32. Of
that amount, $118.91 was attributed to the deputy sheriff. Subtracting that amount results
in an aggregate hourly rate of $208.41, which, when divided by 60, results in a per-
minute rate of $3.47. Multiplying that rate by the average time to clean up graffiti, 100
minutes, results in an average cost of $347 per instance of graffiti. Thus, even assuming
the People could meet its burden purely by utilizing a cost average, the People failed to
meet that burden here.


Palmdale’s Cost Calculation is Flawed
              Third, and finally, we note a significant methodological flaw that inflated
Palmdale’s cost estimate. The method Palmdale employed was to add up the hourly rate
of every cost associated with graffiti remediation to come up with an aggregate hourly
rate. The problem with that approach is that it assumes that every resource is being
utilized for the entire hour. Palmdale then divided its aggregate hourly rate by 60 to
calculate an aggregate per-minute rate, which it then multiplied by 100 minutes. But
again, the initial flaw persists: The method assumes that every resource is being utilized
for the entire 100 minutes.
              It is clear from Palmdale’s descriptions of the various tasks associated with
graffiti remediation that it could not have been utilizing all of its resources that entire
time. For example, “Work Order Preparation and Time” is described as “Retrieving
incident messages from the ‘Graffiti Hot Line’, individuals call-in’s, WEB Submissions
for graffiti removal, preparation of each Work Order and distribution to personnel.” This
description does not appear to require any vehicles, any of the supplies included in the

                                              10
cost analysis, nor does it seem to involve a deputy sheriff. Yet the Palmdale average cost
method charges five minutes for all of those unused resources. Another entry is for
“Travel time to location,” which, presumably, only involves the actual maintenance
workers who remove the graffiti. Not the “Office Assistant II,” nor the “Community
Safety Supervisor,” nor, especially Oschmann, the “Crime Prevention Officer” who
testified that she does not go to view the actual graffiti in person. Yet the Palmdale
average cost method reflects 20 minutes of travel time for those individuals even though,
on average, that expense is not actually incurred. Thus, even if the use of a cost average
was proper, and even if law enforcement costs could be included, Palmdale’s flawed
calculation would not prove that minor caused $400 or more in damages.


                                      DISPOSITION


              The judgment is reversed and remanded with directions to reduce the
felony vandalism adjudications to misdemeanors and to enter a new disposition
consistent with the reduction of the felony counts to misdemeanors.



                                                  IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



FYBEL, J.




                                             11
APPENDIX




           12
