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The People v. Nicholas Luke Miley

October 30, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
NICHOLAS LUKE MILEY, DEFENDANT AND APPELLANT.



(Super. Ct. No. S10CRF0120)

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

P. v. Miley 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Nicholas Luke Miley pled no contest to vandalism exceeding $400. Imposition of sentence was suspended and defendant was placed on probation for three years on the condition, among others, that he pay victim restitution in the amount of $25,844.70 for damage to the residence vandalized.

On appeal, defendant contends the trial court erred when it entered the restitution order because the majority of the victim's loss was not caused by defendant or his crime. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At a contested restitution hearing, victim Robert Jones testified that for more than 25 years he had owned the residence that was vandalized by defendant's marijuana growing operation. During the 15 years he personally had lived in the residence, he never had any problems with mold.

When Jones rented the property to defendant and his fellow tenants in July 2009, the tenants executed, inter alia, a rental agreement that included a mold addendum. In the addendum, the tenants indicated that they had inspected the dwelling before occupancy and had not observed, inter alia, any moisture leaks or mold. At this time, Jones went to the house and did not see any evidence of a marijuana growing operation or any leakage from the exterior of the residence. From July 2009 to May 2010, no one from the residence complained that there were any problems with the residence or asked for permission to do any work on the residence.

On May 12, 2010, officers executing a search warrant found 172 marijuana plants growing in the residence. To facilitate their growing operation, defendant and his cohorts had: (1) removed drywall and studs; (2) removed carpet and floor trim from two bedrooms; (3) damaged and/or removed doors and floor vents; (4) cut large holes in the ceilings of two bedrooms to vent moisture into the attic and to run water lines from the bathroom for irrigation; (5) damaged window blinds and drywall; and (6) caused significant mold damage.

After defendant was arrested and Jones recovered the property, Jones attempted to repair the damage that defendant's marijuana growing operation had caused. Jones submitted a list that detailed the expenses he had incurred in trying to remedy the damage. Jones also submitted several documents that detailed the various services that had been performed to repair the residence. He said each of the services was necessary due to the condition of the residence when it was recovered from defendant and his fellow tenants.

Jones incurred damages in the amount of $25,844.70, which included, inter alia, over $9,000 in mold-related treatments.

A May 24, 2010, environmental testing report stated: "Considering the evident conditions (visible fungal growth, extent and location of fungal growth, elevated moisture presence, etc.) currently existing, it appears that the building materials throughout the loft and the attic became wet and were not dried properly or in a timely manner and unusual microbial amplification began to proliferate. Furthermore, considering the reported recent history, evidence of plant growing, flex ducts venting into the attic and the lack of observed or noted past water intrusion incidents, it is highly probable that the moisture generated during said growing process entirely caused or as a minimum contributed significantly to the current uncharacteristic fungal presence in the attic and loft." (Italics added.) In May 2010, Jones spent approximately $7,625 to have the mold described in this report remediated.

In April 2011, Jones discovered that mold had reappeared. Jones spent $2,200 to have the newly ...


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