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The People v. Shawn Gary Stenzel

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)


August 31, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SHAWN GARY STENZEL, DEFENDANT AND APPELLANT.

(Super. Ct. No. S09CRF0218)

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

P. v. Stenzel CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

Discussion I.

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 of marijuana that French grew not for personal use, but for the purpose of sale.

Background*fn2

The victim restitution claim at issue was for $14,600, calculated by multiplying the four pounds of marijuana the victims claimed were stolen by $3,500, the approximate value of marijuana per pound if purchased at a patient collective. The remaining $600 loss consisted of items stolen during the burglary, including scissors, trimmers, and smoking devices. The restitution claim was signed under penalty of perjury by both Aposhian and French.

During the restitution hearing, French testified that 15 marijuana plants were taken from the residence he shared with Aposhian. The marijuana produced by eight of the plants would fulfill French's medical prescription; that produced by the other seven plants would fulfill Aposhian's medical prescription. When the plants were stolen they had completed budding and were ready for harvest. Based on French's experience, the 15 plants would have yielded five pounds of processed marijuana.

Almost two pounds of marijuana were returned to French; however, the marijuana was unusable and French threw it away. As a result, French purchased about two pounds of marijuana at a cost of $3,200 per pound to replace the spoiled marijuana.

According to French, his average use of marijuana varied. The amount depended upon his work schedule, stress levels, and day-to-day circumstances. In a typical week, he used from one to two ounces of marijuana.

French's plants yielded about five pounds of marijuana three times a year. However, French did not usually need the full amount for personal consumption. In the past, he sold the excess marijuana to "collectives," "clubs," or "dispensaries." French used the proceeds to finance future operating costs for future crops.*fn3 [3]

Co-defendant Maskaly testified she took the marijuana plants, trimmed off the buds, and laid the buds on a tarp to dry. She did not dispose of any of the buds prior to their seizure, nor did she steal the scissors French claimed were stolen during the burglary.

A sheriff's detective testified he found evidence that raised the specter of sales activity by co-defendant Maskaly. He found a ledger with notes about sales and an estimation of earnings for selling the marijuana in $50 amounts.

The court ordered restitution in the amount of $14,467: $870 for stolen smoking devices, $80 for stolen cultivation tools, $117 for three grinders, and $13,400 for four pounds of stolen marijuana. Defendants argued that French was not entitled to compensation for the illegal sales of marijuana. The court responded: "Whether it's legal or not legal I don't think is an issue in determining the amount of restitution. You can certainly, once I make my ruling, if you think it's appropriate, file an appeal, and perhaps the Court of Appeals would have a different view."

Discussion

Penal Code section 1202.4, subdivision (a)(1), governing restitution, states in part: "[A] victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." The statute also provides that "in 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).)

We construe a victim's right to restitution broadly and liberally. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) We shall not disturb the trial court's decision to grant restitution absent an abuse of discretion. An abuse of discretion occurs when the court orders an amount of victim restitution that is arbitrary and capricious. (People v. Giordano (2007) 42 Cal.4th 644, 663; People v. Rubics (2006) 136 Cal.App.4th 452, 462.)

Trial courts possess great discretion as to the types of information they may consider in determining victim restitution. Once a victim has made a prima facie showing of loss, the burden shifts to the defendant to demonstrate the amount of loss is incorrect. (People v. Phu (2009) 179 Cal.App.4th 280, 283; People v. Prosser (2007) 157 Cal.App.4th 682, 691.)

Defendant contends the court's restitution award was improper because it awarded restitution for French's "ongoing criminal enterprise," since French was growing more than his estimated consumption of one to two ounces of marijuana per week. The residual amount, defendant argues, was illegally possessed for sale. The People do not dispute that a victim does not have the right to recover restitution for an item possessed illegally.

As noted, once French made a prima facie showing of the amount of marijuana lost, the burden shifted to defendant to show this amount was in error. However, defendant cannot meet this burden.

Both French and Aposhian had prescriptions for medical marijuana. French testified his level of marijuana use varied depending on a variety of factors, making an exact estimation of his individual use impossible.

In addition, as defendant acknowledges, approximately half of the marijuana grown was for Aposhian's use under her medical marijuana prescription. No testimony pinpointed the amount used by Aposhian, and the trial court cannot be faulted for inferring that Aposhian's needs were comparable to French's and would account for the rest of the stolen marijuana. There is no evidence that at the time of the burglary French intended to sell any of the marijuana. Defendant's argument to the contrary is not supported by the record.

Given the evidence before it, the trial court did not abuse its discretion in setting restitution at $13,400 for the stolen marijuana. Defendant failed to establish that the restitution included marijuana French and Aposhian could not legally possess.

II.

Defendant also contends the court erred in that it did not allocate the restitution order between French and Aposhian even though roughly half of the stolen property belonged to Aposhian.

The court was not required to allocate the amount between French and Aposhian. French and Aposhian filed a single joint claim for restitution. During the restitution hearing, the court noted there were two victims in the case, "Mr. French and his girlfriend [Aposhian]." The court stated: "So I'm going to order total restitution in the amount of $14,467 jointly and severally between the two coparticipants."

The minute order states restitution in the amount of $14,467 is payable to the court "in favor of victim Danielle A. and Daniel F." The orders for restitution and abstracts of judgment, however, are inconsistent with the court's order; they list the restitution amount separately for Aposhian and French. We shall direct the trial court to correct the order of restitution and abstract of judgment to accurately reflect that the restitution order is payable to both French and Aposhian. (People v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell).)

III.

Finally, defendant notes several clerical errors on the abstract of judgment. He is correct that the abstract of judgment should be corrected to conform with the court's oral pronouncement of judgment. (Mitchell, supra, 26 Cal.4th 181 [if abstract of judgment fails to reflect judgment orally pronounced by court, error is clerical and may be corrected at any time].)

Here, as amended, the abstract of judgment inaccurately reflects that the court imposed a two-year term for grand theft in case No. S08CRF0106. As the court did not impose such a term, it must be stricken from the abstract of judgment. Additionally, the abstract of judgment reflects a 16-month term for receiving stolen property in the instant case, and a 16-month enhancement on this count. Defendant's sentence should be reflected, however, as a 32-month term (16 months, doubled) for receiving stolen property ("A2" on the abstract of judgment).

We disagree with defendant, however, that the custody credits are improperly delineated on the abstract of judgment. Defendant earned custody credits on both the instant case and on case No. S08CRF0106, and both cases were listed on the abstract of judgment. Defendant asserts that, although the number of credits awarded is accurately reflected on the abstract of judgment, the abstract should not reflect to which underlying case the credits were related but should be combined into one total. We find no error. Custody credit is given "only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." (Pen. Code, § 2900.5, subd. (b).) The abstract of judgment here accurately reflects defendant's custody credits.

DISPOSITION

The court is directed to correct the order for restitution and abstract of judgment to reflect that restitution in the amount of $14,467 is payable jointly and severally to both French and Aposhian. The court is further directed to correct the abstract of judgment to delete reference to a two-year term for grand theft in case No. S08CRF0106 and to reflect that defendant received a 32-month term for receiving stolen property. In all other respects, the judgment is affirmed. The court is directed to forward to the Department of Corrections and Rehabilitation certified copies of the corrected order for restitution and abstract of judgment.

We concur: NICHOLSON , J. MURRAY , J.


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