People v. Phu

[282]

Opinion

NICHOLSON, J.

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.