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People v. Phu

November 17, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
VAN L. PHU, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Sacramento County, Robert C. Hight, Judge. Affirmed as modified. |(Super. Ct. No. 07F09023).

The opinion of the court was delivered by: Nicholson, J.

CERTIFIED FOR PUBLICATION

After pleading no contest to conspiracy to sell marijuana (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11360), defendant Van L. Phu was sentenced to two years in state prison. Following a restitution hearing, defendant was ordered to pay $24,752.35 to the Sacramento Municipal Utility District (SMUD).

Defendant appeals, claiming the trial court abused its discretion in setting the amount of restitution. We conclude there was a rational basis for the trial court's order, although we will adjust the amount of restitution to $24,704.91 to conform to the evidence presented at the restitution hearing.

PROCEDURAL AND FACTUAL BACKGROUND

In May 2007, an illegal diversion of electrical power was discovered at a house for which defendant was the utilities subscriber. The discovery arose out of a police operation involving 21 residences being investigated for marijuana cultivation. A surveillance of the house was initiated, which entailed driving by "numerous times to check to see if there was any change in the status of the house." No removal of processed marijuana was observed during the surveillance.

A search of the house four months later uncovered a marijuana growing operation, including grow lights, ballasts, fans, and 504 marijuana plants in pots at different stages of maturity. The record does not indicate that any dried marijuana was found at the scene. Defendant's fingerprints were found on light bulb sockets in bedrooms that were set up for growing marijuana. During the search, modifications in the wiring were discovered, indicating that the meter had been bypassed in order to steal power.

Initially, SMUD reported a loss of $5,258.39 for the power that had been stolen during the illegal operation. However, at the restitution hearing, the prosecuting attorney reported that SMUD was requesting $24,752.35.

At the hearing, the police detective in charge of the operation testified that the setup at the house was that of an ongoing, long-term marijuana cultivation business, requiring a large monetary investment in equipment. According to the detective, marijuana plants typically take three to four months to mature to a stage at which they can be harvested for commercial use.

An investigator with SMUD testified that the power in the house was being diverted through a sub-panel inside, which was connected to a timer system. He explained that SMUD had calculated the amount of power that was stolen based on the timer settings and the wattage of the equipment in the house that was connected to the sub-panel. The time period for which reimbursement was being sought was calculated based on the date that utility service was started by defendant, which was the previous December. The investigator offered the following explanation for using this date: "[W]e've got to use the best information that we have at hand. And [defendant] . . . did not call us to tell us when he was going to start stealing power from us as a utility. So, you know, the assumption is that we're going to bill from the service start date because, as far as we're concerned, he entered into a contract with us, and he had a chance to have that service metered accurately, and he chose not to. He chose by bypassing the service that we are able to render a bill to, you know, to the best information that we have in front of us for the time period he's been on contract with us." The investigator acknowledged there was "no way to tell" the exact date the theft of power began. Based on this approach, SMUD calculated its loss at $24,704.91. However, the trial court set restitution in the amount of $24,752.35.

DISCUSSION

Defendant contends the trial court's restitution order was an abuse of discretion because the calculations on which it was based were speculative. We disagree.

"[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." (Pen. Code, § 1202.4, subd. (f).) Restitution must "`be set in an amount which will fully reimburse the victim for his or her losses unless there are clear and compelling reasons not to do so. . . .'" (People. v. Mearns (2002) 97 Cal.App.4th 493, 499; see Pen. Code, § 1202.4, subd. (f)(3).) "While it is not required to make an order in keeping with the exact amount of loss, the trial court must use a rational method that could reasonably be said to make the victim whole, and it may not make an order which is arbitrary or capricious." (People. v. Mearns, supra, at p. 498.)

"A victim's restitution right is to be broadly and liberally construed." (People. v. Mearns, supra, 97 Cal.App.4th at p. 500.) "`"[S]entencing judges are given virtually unlimited discretion as to the kind of information they can consider"'" in determining victim restitution. (People v. Foster (1993) 14 Cal.App.4th 939, 946-947, quoting People v. Baumann (1985) 176 Cal.App.3d 67, 81.) Restitution orders are reviewed for abuse of discretion. (People v. Mearns, supra, 97 Cal.App.4th at p. 498.) When ...


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