(Super. Ct. No. S09CRF0218)
The opinion of the court was delivered by: Raye , P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Shawn Gary Stenzel and co-defendant Alysha Christine Maskaly entered a residence and stole marijuana plants, cultivating tools, smoking devices, and an iPod portable media player. An information charged defendant with residential burglary, receiving stolen property, and possession of marijuana for sale. It also alleged defendant had a prior serious felony conviction. Defendant entered a plea of no contest to receiving stolen property and admitted the prior serious felony.
The court sentenced defendant to four years in state prison and imposed victim restitution. Defendant appeals, contending the court erred in imposing restitution for property the victim unlawfully possessed, and the restitution order should be reduced. He also contends there are several errors on the abstract of judgment. We shall direct the trial court to correct the abstract of judgment and affirm in all other respects.
Factual and Procedural Background
On a summer evening in 2009 defendant entered the home of Dan French and Dani Aposhian. Defendant stole marijuana plants, cultivating tools, smoking devices, and an iPod from the residence.
Both French and Aposhian had prescriptions to use marijuana for medicinal purposes. During the burglary, 15 plants were cut off near their bases and removed. The plants were approximately four feet tall, budding, and ready for harvest. The plants were expected to yield five pounds of processed marijuana after drying, curing, and trim processing.
Following the burglary, two pounds of marijuana and the iPod were returned to the couple. French testified the returned marijuana was unusable and he threw it away.
An information charged defendant with residential burglary, receiving stolen property, and possession of marijuana for sale, and alleged he had a prior serious felony conviction. (Pen. Code, §§ 459, 496, subd. (a), 667, subd. (a), 1192.7, subd. (c); Health & Saf. Code, § 11359.) Defendant entered a plea of no contest to receiving stolen property, and admitted the prior conviction. He also admitted he violated his probation in case No. S08CRF0106. The court sentenced him to the low term of 16 months, doubled, for receiving stolen property, and a consecutive 16 months (one-third the middle term) for residential burglary in case No. S08CRF0106. The court dismissed the remaining counts in the interest of justice.
The court reserved jurisdiction for victim restitution. The victims filed a claim for restitution in the amount of $14,600.*fn1 Following a restitution hearing, the court found defendant and his co-defendant jointly and severally liable for victim restitution in the amount of $14,467. Defendant filed a timely notice of appeal.
Defendant argues the restitution amount should be limited to the market value of the "non-contraband" property (which he defines as nonmarijuana) lost in the burglary. Alternatively, he argues the restitution amount should be reduced by at least $7,000, which, according to defendant, represents the two pounds ...