People v. Hurtado

247 Cal. Rptr. 3d 768, 35 Cal. App. 5th 871
CourtCalifornia Court of Appeal, 5th District
DecidedMay 29, 2019
DocketD074351
StatusPublished
Cited by12 cases

This text of 247 Cal. Rptr. 3d 768 (People v. Hurtado) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Hurtado, 247 Cal. Rptr. 3d 768, 35 Cal. App. 5th 871 (Cal. Ct. App. 2019).

Opinion

HUFFMAN, J.

*873Antonio Hurtado appeals an order requiring him to pay victim restitution to the City of San Diego (City) for seven incidents of graffiti. Hurtado argues the City's method for calculating restitution was "generalized and non-case-specific," and thus, violated the requirements set forth in Luis M. v. Superior Court (2014) 59 Cal.4th 300, 173 Cal.Rptr.3d 37, 326 P.3d 969 ( Luis M. ). Accordingly, Hurtado maintains that the trial court abused its discretion when it relied on the City's methodology to impose victim restitution in the amount of $3,000. We are not persuaded. The trial court properly exercised its discretion when awarding restitution, and we agree with the People that the restitution amount awarded was based on a rational and factual basis reasonably related to Hurtado's criminal vandalism. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The San Diego District Attorney filed an information alleging Hurtado committed three counts of vandalism over $400 ( Pen. Code,1 § 594, subd. (a)(b)(1); counts 1-3); and four counts of vandalism under $400 ( § 594, subd. (a)(b)(2)(A) ; counts 4-7). The district attorney further alleged that Hurtado committed all seven counts for the benefit of a criminal street gang within the meaning of section 186.22, subdivisions (b)(1) and (d). Also, the information alleged that Hurtado had a prior strike conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12.

Hurtado pled guilty to counts 4 and 5, admitted the gang enhancement for each count, and admitted the prior strike conviction. Hurtado also agreed to a Harvey2 waiver. On the People's motion, the court dismissed the remaining counts against Hurtado.

*874The court sentenced Hurtado to prison for a total of eight years, eight months.3

*770In connection with the vandalism counts, the People, on behalf of the City, sought victim restitution in the amount of $3,112.02. In their restitution brief, the People argued that the probation report, the request from the City, and the preliminary hearing transcript provided sufficient basis to establish the requested restitution amount. It explained that the City determined the cost of abating graffiti by using a cost per square foot, which was $3.39 based on its 2016 fiscal year graffiti calculation. It then multiplied the total square footage of Hurtado's graffiti abatement to determine the requested restitution amount. The brief also included costs associated with each count. Attached to the brief were various documents supporting the restitution amount, including the probation report, a report from the district attorney's office that detailed each specific alleged graffiti incident, emails from the City regarding the total restitution amount, and a restitution request form.

Hurtado opposed the amount of restitution the City requested, arguing in his restitution brief that the amount claimed by the City was not based on the actual damages caused by Hurtado but instead, on a generalized and non-case specific restitution estimate. Specifically, he stated the $3.39 cost per square foot did not consider the specifics of Hurtado's graffiti, such as the method of creating the graffiti, the surface the graffiti was on, the materials used to abate, or the manpower used for abatement. Hurtado also maintained that the sole factor considered by the City's damage estimate was square footage, which was "highly subjective." Hurtado thus requested the court order restitution in the amount of $963.78 and submitted a chart explaining how he calculated the requested amount.

In response, the People filed a supplemental brief, arguing there was a sufficient factual nexus between the City's calculations and Hurtado's acts of graffiti.

The court subsequently held a restitution hearing. The People submitted on the preliminary hearing transcript, which the court took judicial notice of and admitted into evidence.

Relevant here, P.H., a supervising management analyst for the City, testified at the preliminary hearing. He explained that graffiti on City property is abated by in-house utility workers while graffiti on private property is abated by Urban Corps, a nonprofit organization that had a contract with the *875City. The City does not pay Urban Corps on a per-incident basis. Instead, Urban Corps sends the City a monthly invoice for all abatement completed in that month. P.H. believed the value of the annual contract between the City and Urban Corps was about $300,000.

According to P.H., the City uses Sales Force, an app, to track all graffiti removed in San Diego. For each incident, the individual abating the graffiti uploads a photograph of the graffiti as well as the date, time, location, type of surface defaced, and the removal method. The individual also includes the total square footage of damage. The information contained in Sales Force is then entered into a graffiti tracking program called Graffiti Tracker. Graffiti Tracker can generate a "D.A. Report" that details all information about a specific graffiti incident. Additionally, the report includes the estimated cost of abatement for each incident, which is automatically calculated using a cost per square foot *771based on a formula developed by the City. The City uses a cost per square foot because it does not have work order information about specific abatements. Its formula divides the projected budget for graffiti abatement for that fiscal year by the total square footage abated the previous year. The expenses included in calculating the budget consider employee salaries, employee benefits, materials, equipment, running the dispatch center, the Urban Corps contract, and other overhead. P.H. also explained that the square footage calculation accounted for the surface type and the method of removal.

For the 2016 fiscal year, the City's graffiti restitution cost per square foot for graffiti abatement was $3.39. P.H. calculated this amount by dividing the total expenses for the graffiti abatement program ($1.1 million) by the total square footage abated (332,000 square feet).4

At the restitution hearing, Hurtado's counsel called P.H. as a witness. In addition to having P.H. repeat some of his preliminary hearing testimony, including reviewing the calculations that led to the $3.39 per square foot figure, counsel asked P.H. to specifically look at the incident of graffiti for count 3. In doing so, Hurtado's counsel referred P.H. to an email where P.H. was analyzing the specific cost of the abatement for count 3. In conducting that analysis, P.H. assumed the abatement would take two and a half to three and a half hours for the actual abatement.

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Cite This Page — Counsel Stack

Bluebook (online)
247 Cal. Rptr. 3d 768, 35 Cal. App. 5th 871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hurtado-calctapp5d-2019.