Filed 10/27/16
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                        DIVISION FOUR



THE PEOPLE,                                 B269709

       Plaintiff and Respondent,            (Los Angeles County
                                            Super. Ct. No.PA084106)
       v.

CHRISTIAN AGUILAR,

       Defendant and Appellant.



      APPEAL from an order of the Superior Court of
Los Angeles County, Hilleri G. Merritt, Judge. Affirmed.
      Joy A. Maulitz, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Margaret E. Maxwell and Peggy Z. Huang,
Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant Christian Aguilar pled no contest to one count of
felony vandalism (Pen. Code, § 594, subd. (a)).1 The trial court
ordered defendant to pay restitution in the amount of $475 to the
City of Los Angeles, which paid a contractor to remove the graffiti
defendant admitted painting. Defendant now contends the
restitution order must be vacated because it lacks a factual nexus
to the damage caused by his conduct. We disagree and affirm.
                         BACKGROUND
       In a felony complaint filed August 17, 2015, the District
Attorney for the County of Los Angeles alleged that defendant
caused damage exceeding $400 by painting graffiti on a wall
belonging to the Foothill Childhood Development Center, Inc.
(§ 594, subd. (a).) Defendant pled no contest to the charge,
thereby admitting that he caused damage in excess of $400.
       At the subsequent restitution hearing, the prosecution
called as its witness Gerry Valido, a graffiti abatement
coordinator with the City of Los Angeles Department of Public
Works. Valido testified that the graffiti at issue “was profane in
nature and anti-police in nature, and it was sprayed in black
spray paint across the length of the wall” of a day care center.
The graffiti covered an area that was approximately 500 square
feet: approximately 80 feet long and five or six feet high. Three
photographs of the graffiti were admitted into evidence “by
reference only.” The day care center notified its city council
member about the graffiti, and the city council member in turn
contacted one of the City’s graffiti removal contractors. The
contractor, Northeast Graffiti Busters, abated the graffiti. Valido
prepared an invoice for costs the City incurred as a result: $475.

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


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The invoice was admitted into evidence “by reference only.”
       Valido testified that he arrived at a cost of $475 by
“utilizing the cost sheet that we use for these types of cases.” He
explained that $475 “is the flat rate for private property graffiti
removal, and the costs are taken from a graffiti removal cost
sheet which lists different surfaces and the costs of graffiti
removal from those particular surfaces.” Under this flat rate
system, as the prosecutor put it, a vandal who “put[s] one
sentence on a wall . . . might get screwed,” while someone who
vandalizes “an 80-foot wall . . . [will] benefit from that.”
According to Valido, the fixed price factored in “the costs for
vehicles and maintenance, graffiti removal equipment, the cost of
the personnel it takes to remove the graffiti, city administrative
costs, [and] costs of insurance.” That is, the rate of $475
“reflect[s] the cost of what it takes to run a city-wide graffiti
removal program.” Law enforcement investigative costs were not
included.
       Valido also opined that, based on his experience, $475 was
a “fair price” for the abatement of this particular graffiti. “Based
on the size and the extent of the graffiti, it took a good deal of
paint to cover that up. Plus the manpower, and the fact that it
was profane graffiti, it had to be done quickly.”
       On cross-examination, Valido conceded that the City does
not pay its graffiti removal contractors on a per-incident basis.
Instead, the contractors “receive an annual contract amount,”
and “get a 12th of their annual payment every month.” Thus,
Northeast Graffiti Busters did not receive $475 from the City for
cleaning up appellant’s graffiti. The monthly amount the
contractor received was not dependent upon the number or
complexity of the abatements it performed each month. Valido




                                 3
did not know the cost of the paint used to cover the graffiti, or the
number of hours spent, or the hourly rate that was paid to the
person or persons who actually performed the work. Valido also
did not know the City’s annual budget for graffiti abatement.
       Defense counsel argued that the testimony Valido provided
was insufficient to support an award of restitution under Luis M.
v. Superior Court (2014) 59 Cal.4th 300 (Luis M.). Counsel
contended that Luis M. “does not permit a cost sheet analysis”
like the one Valido did, because such analyses have “no actual
relationship to the graffiti that is removed.” She asserted that
Valido properly could have tabulated the removal costs by
tallying the exact costs of paint and labor, or by dividing the
City’s annual budget by the annual number of graffiti incidents
and assessing appellant the cost of one incident. She also noted
that, in her experience, “when a private individual does the
repairs instead of the graffiti abatement program, we find repairs
cost $100, $200, instead of the $475 in this case.”
       The prosecutor argued that Valido’s testimony was
adequate to support a restitution order under Luis M. He
pointed out that the trial court examined photographs of the
graffiti to assess its extent and scope, and that Valido had opined
that $475 was a reasonable amount to abate the graffiti. He
requested that the court order restitution in that amount,
payable to the City.
       The court agreed with the prosecutor. It stated that it
looked “specifically at the holding of the California Supreme
Court in LuisM., and their amendment does allow recovery.” The
court continued, “There was extensive damage as shown, and the
court will note that if you get anyone to paint anything
nowadays, good luck getting anything under $500. I think it is




                                  4
perfectly reasonable, and there is a nexus. That will be the
order.”
       Appellant timely appealed.
                             DISCUSSION
       Section 1202.4 requires the trial court to order full victim
restitution “in every case in which a victim has suffered economic
loss as a result of the defendant’s conduct,” “unless it finds
compelling and extraordinary reasons for not doing so and states
them on the record.” (§ 1202.4, subd. (f); see also People v.
Giordano (2007) 42 Cal.4th 644, 652.) A governmental entity
“that is responsible for repairing, replacing, or restoring public or
privately owned property that has been defaced with graffiti or
other inscribed material . . . and that has sustained an economic
loss as a result of a violation of Section 594 . . .” is a “victim” for
purposes of section 1202.4. (§ 1202.4, subd. (k)(5).) The amount
of restitution must be “based on the amount of loss claimed by
the victim or victims or any other showing to the court.”
(§ 1202.4, subd. (f).) It also must reflect “economic loss incurred
as a result of the defendant’s criminal conduct,” such as “the
actual cost of repairing the property when repair is possible.”
(§ 1202.4, subd. (f)(3)(A).)
       “The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution.”
(§ 1202.4, subd. (f)(1).) At that hearing, the prosecution bears the
initial burden of making a prima facie showing of the victim’s
economic loss. Once that showing is made, the burden shifts to
the defendant to demonstrate that the amount of the loss is other
than that claimed by the victim. (People v. Millard (2009) 175
Cal.App.4th 7, 26; People v. Santori (2015) 243 Cal.App.4th 122,
126 (Santori).) Section 1202.4 does not by its terms require any




                                   5
particular type of evidence. (People v. Gemelli (2008) 161
Cal.App.4th 1539, 1542 (Gemelli).) The standard of proof is
preponderance of the evidence. (Ibid.)
       On appeal, we review the trial court’s order for abuse of
discretion. (Gemelli, supra, 161 Cal.App.4th at p. 1542.) No
abuse of discretion occurs if the restitution order is supported by
a rational and factual basis. (Ibid.) We reverse only if the trial
court’s order is arbitrary or capricious. (Ibid.)
       Defendant contends the trial court abused its discretion by
violating the teachings of Luis M., a case involving a juvenile
defendant which is relevant here because of the substantial
similarities between section 1202.4 and the restitution statute for
juveniles, Welfare & Institutions Code section 730.6. (Santori,
supra, 243 Cal.App.4th at p. 126.) In Luis M., a minor defaced
six locations in the City of Lancaster with nine acts of graffiti.
(Luis M., supra, 59 Cal.4th at p. 303.) At his restitution hearing,
a crime prevention officer used a five-year-old cost model to
estimate the City’s annual graffiti abatement costs; the model
included labor and material costs for both investigation and
removal of graffiti. (Id. at p. 304.) She compared that cost model
to the City’s annual expenditures and concluded that the City’s
average outlay per graffiti incident was $431.32. She multiplied
that figure by defendant’s nine instances of graffiti to arrive at a
total loss amount of $3,881.88. (Ibid.) The officer “did not
produce photographs or otherwise describe [defendant’s] graffiti
except to note that it involved a traffic arrow sign and several
electrical boxes,” and offered “no information about the actual
abatement costs related to Luis’s conduct.” (Ibid.) The trial court
ordered restitution in the amount of $3,881.88,based on the
officer’s testimony. (Ibid.) The Court of Appeal issued a writ




                                 6
vacating the order, and the Supreme Court affirmed. (Id. at p.
303.)
       The Supreme Court concluded the order “was not based on
sufficient evidence that the amount of claimed loss was a result of
Luis’s conduct.” (Luis M., supra, 59 Cal.4th at p. 303.) It
explained that the general restitution statute applicable to
juvenile offenders, Welfare & Institutions Code section 730.6,
which is “‘parallel’” to section 1202.4, limits restitution to
“‘economic losses incurred as a result of the minor’s conduct,’”
such as “‘the actual cost of repairing the property when repair is
possible.’” (Id. at pp. 304, 305, emphases in original.) The award
may include “the materials, equipment, and labor costs incurred
for remediation,” as well as “[p]reexisting expenditures, such as
salaried employees and equipment purchases, . . . provided those
costs can be fairly apportioned on a pro rata basis to the minor’s
conduct.” (Id. at p. 309.) It may not include law enforcement
investigative costs. (Id. at p. 305.) A trial court awarding
restitution under Welfare & Institutions Code section 730.6 “need
not ascertain the exact dollar amount of the City’s losses,” and
“retains broad discretion . . . to estimate the material,
equipment, and labor costs necessary to repair the damage
caused by a discrete act of graffiti,” but its calculation “must have
some factual nexus to the damage caused by the minor’s
conduct.” (Id. at pp. 309, 310.)
       Defendant argues that the trial court’s order did not comply
with the requirements of Welfare & Institutions Code section
730.6 because the court “based its estimate on an average of all
costs of graffiti cleanup rather than a rational estimate of costs
occasioned by Luis’s conduct.” (Luis. M., supra, 59 Cal.4th at p.
309, emphasis in original.) The Supreme Court noted there was




                                 7
“no evidence of the size or type of Luis’s graffiti,” and “no
evidence about the materials, equipment, and labor required to
remove it.” (Ibid.) By way of example, the Court observed that it
could not determine “if the City painted over a small area or used
more expensive equipment to restore the property’s surface.”
(Ibid.) The Court also noted that the trial court’s order included
law enforcement investigative costs, which are not recoverable
under Welfare & Institutions Code section 730.6. (Id. at p. 310.)2
       Defendant argues that the “evidence provided by the City
in this case was even less substantial than that found lacking in
Luis M.” He asserts there was no evidence apportioning the costs
of labor or materials, and no evidence of the City’s annual graffiti
removal budget or the number of incidents it must abate each
year. He further argues that the photographs of the graffiti in
this case “do not support a calculation of $475 without additional
evidence.” In his view, “the City must also provide an estimate of
average cost per square foot to paint over the graffiti, or
alternatively, the City could provide business records reflecting
time and materials.”


      2 The Luis M. Court also concluded the restitution order did
not comply with a special restitution scheme for juvenile
offenders, the Graffiti Removal and Damage Recovery Program
(Welf. & Inst. Code, § 742.10, et seq.). (Luis M., supra, 59 Cal.4th
at pp. 305-306.) That program “authorizes a city or county to
calculate and recover restitution based on average costs rather
than requiring individualized proof under the general provisions
of [Welfare & Institutions Code] section 730.6.” (Id. at p. 306.)
The City in Luis M. could not take advantage of the program
because it had not enacted the required ordinances. We do not
address this portion of Luis M. further because defendant is not a
minor.


                                 8
       Luis M. does not bear the weight defendant accords it. The
Supreme Court did not hold that photographs of graffiti must be
accompanied by “an estimate of average cost per square foot to
pain over the graffiti or some other measure.” The Court held
that “the trial court retains broad discretion . . . to estimate the
material, equipment, and labor costs necessary to repair the
damage caused by a discrete act of graffiti.” (Luis M., supra, 59
Cal.4th at p. 310.) The Court explained that “a witness familiar
with graffiti abatement” could use photographs or other evidence
of “the size, extent, and type of graffiti involved” to “estimate the
average cost per square foot or other measure to paint over or
otherwise restore the defaced surfaces. Alternatively, business
records reflecting time and materials might provide a rational
basis for estimating costs.” (Ibid.) This language does not
require the use of any one method or measure. Thus, the absence
of business records or a specific estimate of “average cost per
square foot” does not render the prosecution’s showing
insufficient.
       This case is analogous to Santori, supra, 243 Cal.App.4th
122. There, a crime prevention officer testified that it took the
City of Los Angeles an average of 100 minutes to remove a piece
of graffiti. She examined photographs of an adult defendant’s 32
instances of graffiti and concluded that 100 minutes was a
reasonable estimate for each incident, even though some may
have taken more time to remove and others less; she did not
know the actual number of hours the City spent abating
defendant’s graffiti. The officer considered the costs of a cleanup
crew, administrative costs, her salary, investigative costs and a
graffiti-tracking computer program to arrive at a per-minute
graffiti abatement cost. (Id. at p. 125.) She multiplied the 32




                                  9
incidents by the 100 minutes by the per minute cost to arrive at
an estimate. After the trial court deducted the portion
attributable to investigative costs, it relied on the officer’s
estimate to award the City $18,878.23 in restitution. (Ibid.)
       The defendant contended that the evidence underlying the
order was insufficient to establish the “factual nexus” required by
Luis M. (Santori, supra, 243 Cal.App.4th at p. 126.) The Santori
court disagreed and concluded that the witness “followed the . . .
mandate in Luis M. She was familiar with graffiti abatement
and established the average cost per minute to restore the
defaced surfaces. . . . In contrast to Luis M., here the crime
prevention officer considered the photographs depicting
defendant’s graffiti when she calculated the cost to restore the
defaced surfaces. [Her] opinion was based on defendant’s graffiti,
not just an average for removal of the city’s graffiti.” (Id. at p.
127.)
       The analogy to Santori is not perfect: Valido did not
calculate a per-minute graffiti removal cost, and he did not
provide a time estimate for remediation of defendant’s graffiti.
However, Valido “considered the photographs depicting
defendant’s graffiti” and, given his experience, opined that the
flat fee of $475 was a “fair price” to abate defendant’s graffiti. He
considered the large size and extent of the graffiti, as well as the
necessity for an expedited removal, given its profane content and
location on a day care center, and factored the costs of both paint
and manpower into his opinion as well. This testimony provided
a factual nexus to defendant’s graffiti. In substance, it was akin
to the Santori witness’s testimony that 100 minutes was a
“reasonable estimate” of the time it would take to remove each
piece of graffiti in that case, and that 100 minutes of work would




                                 10
cost a specific dollar amount.
       Defense counsel’s assertion that the repairs could have
been accomplished for “$100, $200, instead of the $475” was not
supported by any evidence. Accordingly, it was not sufficient to
overcome the prosecution’s prima facie case, particularly in light
of defendant’s no contest plea to causing more than $400 in
damage.
       The trial court did not violate Luis M. or otherwise abuse
its discretion in ordering defendant to pay $475 in restitution to
the City of Los Angeles.
                           DISPOSITION
       The restitution order is affirmed.
                CERTIFIED FOR PUBLICATION



                           COLLINS, J.

We concur:



EPSTEIN, P. J.



WILLHITE, J.




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