Damage calculation based on a county list specifying the average cost to abate each graffiti incident did not provide sufficient evidence to prove defendant’s graffiti caused more than $400 in damage for purposes of felony vandalism. Kyle T. tagged three buildings with the word “frosty” in blue spray paint. The People filed a Welfare and Institutions Code section 602 petition alleged felony vandalism of city property and other offenses. An officer testified that the damage caused by the tags was $1200 based solely on the city’s graffiti “cost list,” which provided a $400 per-incident graffiti removal cost. The juvenile court sustained the petition and Kyle T. appealed, asserting insufficient evidence established the element of causing damage over $400. Held: Reversed. The vandalism statute (Pen. Code, § 594) does not provide a formula for calculating the amount of property damage. While there are two statutory methods for determining an appropriate restitution amount to abate damage caused by juvenile vandalism (actual cost and average cost) the cost list evidence presented in this case fails to satisfy either. (See Luis M. v. Superior Court (2014) 59 Cal.4th 300, 307.) The People admitted no evidence of the actual cost to the city to abate Kyle T.’s graffiti and average cost methods must be reviewed every three years, which was never established in this case. (See Welf. & Inst. Code, § 742.14.) The court also questioned the constitutionality of using an average cost determination outside the restitution context to establish an element of a criminal offense (i.e., that the vandalism in a particular case exceeded $400).

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B267722.PDF