People v. Kyle T.

Filed 3/13/17
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re KYLE T., B267722

a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. YJ37350)

THE PEOPLE,

Plaintiff and Respondent,

v.

KYLE T.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Wayne C. Denton, Commissioner. Affirmed in
part, reversed in part and remanded with directions.
Gerald Peters, 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 Tasha G. Timbadia,
Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

INTRODUCTION

Kyle T. appeals from juvenile court adjudication and
disposition orders. The adjudication order declared Kyle a ward
of the court and sustained a petition that the People filed under
Welfare and Institutions Code section 602 alleging that Kyle had
committed one count of felony vandalism (Pen. Code, § 594,
subds. (a), (b)(1)) and one count each of misdemeanor vandalism
(id., subd. (b)(2)) and misdemeanor possession of an aerosol
container with intent to vandalize (id., § 594.1, subd. (e)(1)). The
disposition order directed that Kyle be placed in a suitable
juvenile detention facility for a maximum of three years.
Kyle argues on appeal that there is insufficient evidence to
support the juvenile court‟s finding on the felony vandalism count
that Kyle caused $400 or more in property damage, which is the
amount of damage necessary to punish vandalism as a felony
rather than as a misdemeanor. (Pen. Code, § 594, subd. (b)(1) &
(2)). We agree. In our view, the People failed to present
sufficient evidence, specific to Kyle‟s acts of vandalism,
demonstrating that the actual amount of damage he caused
reached the felony vandalism threshold of $400. Therefore, we
reverse the adjudication order in part and instruct the juvenile
court to reduce the felony vandalism count to a misdemeanor
vandalism count. We also reverse the disposition order and

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remand for a new disposition consistent with the reduction of the
felony count to a misdemeanor.

FACTUAL AND PROCEDURAL BACKGROUND

On the night of May 28, 2015, Los Angeles Police
Department Officer Jonathan Chavez noticed what appeared to
be fresh blue graffiti, also known as “tagging,” on an abandoned
building at 2231 South Barrington Avenue in Los Angeles that
was owned by the City of Los Angeles (City). Officer Chavez read
the tagging to contain the word “Frost” or “Frosty,” as well as the
initials “JRH,” and he estimated that the size of the tagging was
two feet by three feet. A passerby whom Officer Chavez
encountered near that building pointed down the street and
stated, “He‟s over there tagging now.” Based on the passerby‟s
tip, Officer Chavez alerted other officers who were working in the
area. One of those officers, Gina Roh, found fresh blue tagging
with the initials “JRH” on the south side wall of 2250 South
Barrington Avenue, which also was City-owned. Additionally,
Officer Roh saw fresh blue spray paint with the word “Frost” at
Hai‟s Liquor, a nearby store. Officer Roh was uncertain of the
size of the tagging at 2250 South Barrington Avenue and Hai‟s
Liquor.
Later that same night, Officer Samuel Leon spotted Kyle
walking along South Barrington Avenue and stopped him. Kyle
confessed to Officer Leon, “I did it. I was painting the wall
because I was bored.” Kyle showed Officer Leon his waistband,
where he had a can of blue spray paint and a paint marker; Kyle
had blue paint on his fingers as well.

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 On July 20, 2015, pursuant to Welfare and Institutions
Code section 602, the People filed a three-count petition alleging
Kyle, who was then 17 years old, had committed (1) felony
vandalism by defacing with graffiti walls of properties owned by
the City, causing damage to that property in an amount over
$400 (Pen. Code, § 594, subd. (a); count 1); (2) misdemeanor
vandalism by defacing with graffiti the wall at Hai‟s Liquor,
causing damage to that property in an amount under $400 (id.,
subd. (a); count 2); and (3) misdemeanor possession of an aerosol
paint container with the intent to deface (id., § 594.1, subd. (e)(1);
count 3).
The adjudication hearing on the petition was tried in front
of the juvenile court on September 22, 2015. Officer Miguel
Barragan was the lone prosecution witness to testify whether, for
purposes of the petition‟s felony vandalism count, the amount of
damage that Kyle caused to the two City-owned properties on
South Barrington Avenue was $400 or more.1 Officer Barragan
testified that he previously had handled vandalism cases and
that part of his assignment is to determine the cost of repairing
walls and other structures damaged by vandalism. The
prosecutor asked him, “[H]ow is it that you go about determining
the dollar amount of City property that needs to be repaired due
to vandalism or tagging?” Officer Barragan answered, “[F]or City
properties, we have a graffiti removal cost list. [¶] . . . [¶] It is
issued by the [City] for my investigations on how to come up with
estimates of removal of graffiti.”

1 For purposes of the misdemeanor vandalism count, the
juvenile court accepted the parties‟ stipulation that the amount of
damage to Hai‟s Liquor was under $400.

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 With implicit reference to the dimensions of the tagging at
2231 South Barrington Avenue, the prosecutor asked Officer
Barragan, “Does [the graffiti removal cost list] have a dollar
amount for how much it costs to approximate [sic] a two- by
three-foot tag on a wall?” “Yes,” Officer Barragan answered.
“What is that dollar amount?” the prosecutor asked. Kyle‟s
counsel objected to that question on the grounds of hearsay and
lack of foundation. The court overruled the objections, and
Officer Barragan responded, “According to the graffiti removal
cost list, it is $400 for each incident of removing graffiti.”
Applying that per-incident rate, Officer Barragan stated that it
would cost a total of $1,200 to remove the three tags on the two
City-owned properties (two tags on one wall at 2231 South
Barrington Avenue and one tag at 2250 South Barrington
Avenue).
On cross-examination, Officer Barragan stated that the
graffiti removal cost list was one page long. He conceded that he
did not prepare the list—someone else, whom he did not identify,
prepared it. Nor was Officer Barragan able to explain how the
list‟s cost removal determinations were made. Officer Barragan
also conceded that he was unaware whether any repairs had been
made to the two City-owned properties in question. Additionally,
he conceded that he was unaware of the cost of materials to make
the repairs. And he conceded that he did not know how long it
would take to make the repairs and how many people would be
needed to make them. Officer Barragan did say that he had
visited the two properties as part of his investigation. But he
acknowledged that his repair cost figures were based entirely on
the graffiti cost removal list.

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 At the close of their case, the People did not offer into
evidence the graffiti removal cost list, photographs of the tagging,
or any other document.
After the People rested, Kyle‟s counsel made an oral motion
to reduce the petition‟s felony vandalism count to a misdemeanor,
“based on the testimony of the evaluation of the cost of repair.”
The court denied the motion.
Kyle did not testify or present any evidence in his defense.
After the People waived closing argument, Kyle‟s counsel
renewed his argument that the felony vandalism count should be
reduced to a misdemeanor because any damage Kyle caused to
the City-owned properties was less than $400. The court again
denied the request. The court then proceeded to sustain the
felony vandalism count, as well as the petition‟s two
misdemeanor counts, and memorialized its findings in an
adjudication order.
Following an October 19, 2015 disposition hearing, the
juvenile court ordered Kyle suitably placed in a “Level 14
facility,” with a maximum period of confinement of three years.2
Kyle‟s appeal was timely.

2 In rendering that disposition, the court aggregated the
petition in this case with two prior petitions filed against Kyle,
both of which resulted in Kyle admitting to allegations of
vandalism in connection with settlements of the petitions. (See
Welf. & Inst. Code, § 726, subd. (d); John L. v. Superior Court
(2004) 33 Cal.4th 158, 183 [the juvenile court may aggregate
terms of confinement for multiple Welf. & Inst. Code, § 602
counts or petitions, including previously sustained petitions].)

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 DISCUSSION

A. Standard of Review and Governing Law
Our review of a claim of insufficiency of the evidence in a
juvenile criminal case is governed by the same deferential
standard that applies to an insufficiency of the evidence claim in
an adult criminal case. (In re V.V. (2011) 51 Cal.4th 1020, 1026.)
Under that standard, we determine whether, after viewing the
evidence in the light most favorable to the prosecution, any
reasonable fact finder could have found the elements of the crime
to be true beyond a reasonable doubt. (Ibid.) We do not reweigh
the evidence or reevaluate the credibility of witnesses (People v.
Jennings (2010) 50 Cal.4th 616, 638); and we presume the
existence of every fact the trier of fact reasonably could infer from
the evidence (In re V.V., supra, at p. 1026). “„“A reasonable
inference, however, „may not be based . . . on imagination,
speculation, supposition, surmise, conjecture or guess work.‟”‟”
(People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416.)
Vandalism is proscribed by section 594 of the Penal Code.
A person commits vandalism if he or she maliciously defaces with
graffiti (or other inscribed material), damages, or destroys any
real or personal property that is not his or her own. (Id.,
subd. (a).) Vandalism may be punished as a felony, but only “[i]f
the amount of defacement, damage, or destruction is four
hundred dollars ($400) or more . . . .” (Id., subd. (b)(1).) Damage
of less than $400 is punishable solely as a misdemeanor. (Id.,
subd. (b)(2).)

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B. The Evidence Was Insufficient To Support the Felony
Vandalism Finding
Kyle contends that there is insufficient evidence to support
the juvenile court‟s felony vandalism finding that he caused $400
or more in damage to the two City-owned properties that were
the subject of the felony vandalism count.3 Kyle is right. The
People failed to present individualized proof, specific to the facts
of this case, that the actual amount of damage that Kyle‟s
vandalism caused reached the $400 threshold necessary to
sustain the felony vandalism count.
Penal Code section 594 does not itself specify a method for
proving the amount of property damage in a vandalism
prosecution, and there are no reported decisions on that subject.
By contrast, there are “two statutory approaches,” and reported
decisions analyzing those approaches, for determining the
amount of a restitution award arising from the abatement of
juvenile vandalism of property. (Luis M. v. Superior Court (2014)
59 Cal.4th 300, 307 (Luis M.).) First, section 730.6,
subdivision (h) of the Welfare and Institutions Code “authorizes
full restitution for economic losses, including „the actual cost of
repairing [damaged] property when repair is possible.‟ ([Welf. &
Inst. Code,] § 730.6, subd. (h)(1) . . . .) Awards under [Welfare
and Institutions Code] section 730.6 are based on proof of the
damage actually linked to the minor’s conduct . . . .” (Luis M., at
p. 307.) This method for determining restitution arising from the
abatement of juvenile vandalism “parallel[s]” the method for

3 Kyle does not dispute that he committed acts of
vandalism—he contends only that those acts did not rise to the
level of felony vandalism.

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determining restitution arising from the abatement of adult
vandalism set forth in Penal Code section 1202.4, subdivision (f).
(Luis M., at p. 304; see Pen. Code, § 1202.4, subd. (f)(3)(A)
[restitution shall be of a dollar amount sufficient to fully
reimburse the victim for every determined economic loss
“incurred as the result of the defendant‟s criminal conduct”; the
“value of . . . damaged property shall be . . . the actual cost of
repairing the property when repair is possible”].) Second, the
Graffiti Removal and Damage Recovery Program (Welf. & Inst.
Code, § 742.10 et seq.) authorizes restitution “based on the
average costs for graffiti investigation and remediation per unit
of measure,” provided that criteria set forth in Welfare and
Institutions Code section 742.14 are met. (Luis M., at p. 307.)
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. Here, the evidence of property
damage that the People presented does not satisfy either the
“actual cost” or “average cost” method for determining restitution
awards.

1. The People Provided Insufficient Evidence of the
Actual Cost To Repair the Property Damage Kyle
Caused
The most obvious way for the People to prove that Kyle
committed felony vandalism would have been to introduce at the
adjudication hearing an invoice setting forth the actual cost of
repairs to the two properties. No such evidence was introduced.
The absence of an invoice may have been because the City had

9
not completed repairs as of the hearing date. Indeed, Officer
Barragan testified he did not know whether that work had been
done. Had the People introduced an invoice showing actual
repair costs of $400 or more, properly authenticated the invoice,
and laid a proper foundation, the trial court could have found
that Kyle committed felony vandalism and we would not have
disturbed that finding.
This is not to say that it was necessary for the City already
to have made repairs in order for the trial court to find felony
vandalism—a contractor‟s estimate of the cost to repair the
actual damage that Kyle caused might have sufficed, again
assuming proper authentication and foundation. But the People
offered no such estimate either.
The one-page graffiti cost removal list formed the basis of
Officer Barragan‟s damages calculation. Because the People did
not introduce the list itself and therefore it is not in the record on
appeal, we are unaware of its exact contents. What we know
about the list is based on Officer Barragan‟s description of it.4
And based on that description, we know that the list did not
contain an invoice of actual repair costs. We also know that the
list is not an estimate of the actual cost to repair the damage that
Kyle caused. Rather, the list apparently sets forth a generic, one-
size-fits-all removal cost of $400 for every incident of graffiti on
City-owned property. From what Officer Barragan said, this

4 Kyle objected on hearsay and foundation grounds to Officer
Barragan‟s testimony about the list at the adjudication hearing.
The trial court overruled the objection. Because Kyle does not
contest the trial court‟s evidentiary ruling on appeal, we do not
address it.

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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,5 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 Kyle‟s vandalism.
This deficiency of the graffiti cost removal list is
underscored by Officer Barragan‟s acknowledgement that he
knew neither the length of time it would take to repair the
damages that Kyle caused nor the number of people necessary to
make the repairs, as well as his acknowledgment that he did not
know the cost of the materials to repair that damage. The list‟s
flat rate of $400 per incident thus bears, at best, an attenuated
correlation to the cost of removing the graffiti for which Kyle was
responsible.
To make matters worse, Officer Barragan was unable to
explain how the list was prepared and hence how its flat rate of
$400 per incident was even derived in the first place. This has
left us wondering whether or not it was just a coincidence that
the list‟s damages calculation hit Penal Code section 594‟s felony
vandalism mark of $400 right on the nose.

5 Initially, Officer Barragan testified that the list states it
costs $400 to remove graffiti having the dimensions (two feet by
three feet) of the graffiti on the wall at 2231 South Barrington
Avenue. Subsequently, however, Officer Barragan indicated that
it also would cost $400 to remove the graffiti on the wall at 2250
South Barrington Avenue, the dimensions of which were never
specified in the record.

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 The People argue that Officer Barragan‟s damages estimate
was not based solely on the graffiti cost removal list, but also on
his review of the photographs of the graffiti on the two City-
owned properties and his observations of the graffiti during his
visit to those sites. Yes, Officer Barragan did review the
photographs, and he did visit the sites. However, neither the
photographs nor any notes summarizing his site visit were
introduced into evidence. And more fundamentally, Officer
Barragan testified unequivocally that his damage estimate was
based exclusively on the graffiti cost removal list.
The People‟s contention that the juvenile court could
determine the amount of damage based on the testimony of
Officers Chavez and Roh, not just Officer Barragan‟s, is incorrect.
Officers Chavez and Roh both testified only about their
observations of the tagging. Neither testified regarding the
extent of the damage the tagging caused.
Because Officer Barragan was the only prosecution witness
who testified regarding damages, and his damage calculation was
predicated on the graffiti cost removal list, the juvenile court‟s
felony vandalism finding necessarily rested on the list. And
because the list‟s damages calculation was not tied to the specific
facts of this case, the court‟s finding fails to satisfy even the
relaxed scrutiny of sufficiency of the evidence review. The list is
an insufficient basis for the juvenile court‟s finding that Kyle
caused $400 or more in damages to the City-owned properties
and the resulting imposition of felony punishment on Kyle.6

6 At the adjudication hearing, the prosecution suggested that
the stipulated $100 worth of damage to Hai‟s Liquor could be
aggregated with the damage to the City-owned properties for
purposes of calculating whether the felony vandalism level of

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 Reported decisions on the “actual cost” method for
determining restitution awards arising from vandalism support
our conclusion. Under this method, the amount of the award
“must have some factual nexus to the damage caused by the
[juvenile‟s] conduct.” (Luis M., supra, 59 Cal.4th at p. 309; see
also id. at p. 307; Welf. & Inst. Code, § 730.6.)
In Luis M., the government entity seeking restitution failed
to satisfy that standard because it “had no information about the
actual abatement costs related to [the juvenile‟s] conduct.” (Luis
M., supra, 59 Cal.4th at p. 304.) In particular, the entity
introduced no photographs of the juvenile‟s graffiti. (Id. at
pp. 303-304.) And it provided “no evidence about the materials,
equipment, and labor required to remove it.” (Id. at p. 309.)
Under those circumstances, the restitution award was reversed.
Luis M. highlights the problems with the People‟s felony
vandalism case against Kyle. Just as in Luis M., no photographs
of Kyle‟s graffiti were introduced into evidence, and no evidence
was offered regarding the cost of labor and materials to remove
Kyle‟s graffiti.

$400 or more in damage was reached. As a general proposition,
acts of vandalism that cause less than $400 in damage may be
aggregated to form the predicate for a felony vandalism charge.
(See In re Arthur V. (2008) 166 Cal.App.4th 61, 68.) Here,
however, the damage to Hai‟s Liquor was not alleged in petition‟s
felony vandalism count—it was alleged in the misdemeanor
vandalism count only. The incorporation of the misdemeanor
vandalism damage to Hai‟s Liquor in tallying felony vandalism
damages thus would have been impermissible. (In re Robert G.
(1982) 31 Cal.3d 437, 445.) The People do not advocate for such
aggregation on appeal.

13
 People v. Santori (2015) 243 Cal.App.4th 122 is in sharp
contrast to Luis M. and our case. In Santori, the restitution
award was based on an estimate of the amount of damage
actually caused by the defendant‟s graffiti, including manpower
necessary to remove the graffiti, not an average based on other
incidents of graffiti. (Santori, at pp. 126-127.) Under those
circumstances, the award was upheld.
In People v. Aguilar (2016) 4 Cal.App.5th 857, 860, the City
of Los Angeles derived its claimed amount of restitution from “„a
graffiti removal cost sheet which lists different surfaces and the
cost of graffiti removal from those particular surfaces.‟” Whether
this is the same list on which Officer Barragan predicated his
damages calculation in this case is unclear. In Aguilar, however,
the City‟s damages witness did not tie his damages calculation to
a per-incident rate generated by the list. Instead, in making his
calculation, the witness considered photographs depicting the
graffiti at issue in the case, the “size and extent of the graffiti,”
the need “for an expedited removal” (it was on a children‟s day
care center) and “the costs of both paint and manpower.” (Id. at
p. 865.) Aguilar reflects a case-specific damages determination
and thus is quite different from the generalized damages
determination on which the juvenile court‟s felony vandalism
finding here rests.

2. The Graffiti Cost Removal List Fails to Satisfy the
Criteria for Use of Average Costs in Restitution Cases
The average cost method for determining restitution
awards appears to bear some resemblance to the per-incident
damages calculation of the graffiti cost removal list on which the
juvenile court‟s felony vandalism finding in this case rests. As

14
the People acknowledge, however, Welfare and Institutions Code
section 742.14 does not authorize use of the average cost method
beyond the restitution context. In any event, we question
whether this method could be applied constitutionally to the
adjudication of vandalism allegations against a juvenile in a
Welfare and Institutions Code section 602 petition. Our doubts
flow from the distinction between a restitution proceeding and an
adjudication proceeding. A juvenile who comes out on the wrong
end of a restitution proceeding is not deprived of his or her
liberty. The juvenile is simply ordered to pay money, as would be
the case following a civil judgment. The standard of proof in a
restitution proceeding requires an entity seeking restitution for
acts of vandalism to make only a prima facie showing of the
amount of damage; the burden then shifts to the defendant to
demonstrate that the amount of damage is less than that
amount. (People v. Santori, supra, 243 Cal.App.4th at p. 126.)
By contrast, a juvenile who comes out on the wrong end of
the adjudication of a Welfare and Institutions Code section 602
petition alleging vandalism may be deprived of his or her liberty.
Accordingly, the standard of proof is the same as in an adult
criminal case: the prosecutor must prove beyond a reasonable
doubt that the juvenile committed acts of vandalism, and, if
felony vandalism is alleged, that the damage the juvenile caused
is $400 or more. (In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct.
1068, 25 L.Ed.2d 368]; CALCRIM No. 2901.)
It is one thing to use the average cost method used to
determine the amount of restitution for juvenile vandalism. It is
quite another thing to use that method to determine whether a
juvenile‟s vandalism is subject to punishment as a felony. The
imposition of that degree of punishment should be based on the

15
damage the juvenile actually caused, not on the average damage
that other juveniles cause. The graffiti cost removal list bases
the imposition of felony penalties on a per-incident average. We
need not decide if this mode of determining punishment would be
constitutional. For even if the average cost method of Welfare
and Institutions Code section 742.14 applies outside the
restitution setting, the graffiti cost removal list does not satisfy
the statutory criteria. Among other requirements, average cost
determinations for calculating restitution awards must be
reviewed every three years by government entities using that
method. (Welf. & Inst. Code, § 742.14; Luis M., supra, 59 Cal.4th
at p. 308.) There is no evidence that the graffiti cost removal list
was subject to such a review.

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 DISPOSITION

The adjudication order is reversed in part. The juvenile
court is instructed to reduce the felony vandalism count to a
misdemeanor vandalism count. The adjudication order is
affirmed in all other respects. The disposition order is reversed.
We remand for a new disposition consistent with the reduction of
the felony count to a misdemeanor.

SMALL, J.*

We concur:

ZELON, Acting P. J.

SEGAL, J.

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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