People v. Wong CA1/1

Filed 9/21/16 P. v. Wong CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A145225 v. HOWARD FU WONG, (Alameda County Super. Ct. No. H54369A) Defendant and Appellant.

After defendant Howard Fu Wong pleaded no contest to cultivating marijuana, he was placed on five years of probation pursuant to the terms of a negotiated disposition. As part of the plea deal, he also agreed to pay restitution to Pacific Gas & Electric Company (PG&E) for stolen electricity used in the grow operation. Following a contested restitution hearing, the trial court ordered him to pay $393,939.93. As he did in the trial, he contends on appeal that PG&E is limited to its wholesale cost for the stolen electricity and, absent lost profits evidence, cannot recoup the amount it would have received had the power flowed through its meter and been billed and paid for. We find this argument meritless, if not specious, and affirm the restitution award. BACKGROUND We summarize only the facts and procedural background relevant to the one issue on appeal. Defendant was determined to have “exclusive control” of three warehouses used for a marijuana growing operation. At each, PG&E’s metering equipment was bypassed, enabling defendant to use large amounts of electricity for the cultivation operation without paying for it.

1

After police discovered the operation and seized 5,414 marijuana plants, the district attorney charged defendant with cultivating marijuana (Health & Saf. Code, § 11358) and possession of marijuana for sale (Health & Saf. Code, § 11359). Pursuant to a negotiated disposition, defendant pleaded no contest to the cultivation count, and the remaining count was dismissed on the district attorney’s motion. In accordance with the plea deal, the trial court suspended imposition of the sentence and placed defendant on five years of probation. As part of the plea agreement, defendant agreed to pay PG&E restitution in an amount to be determined at a later hearing. PG&E sought $393,939.93 for the value of the electricity defendant had stolen from it.1 At the restitution hearing, a PG&E investigator testified the amount was calculated by estimating the number of kilowatt hours used at the three warehouses, then multiplying that number by the scheduled rate that would have been charged for the power. Defendant did not present any evidence, but maintained PG&E had not presented sufficient evidence to justify the amount sought. The trial court disagreed and awarded PG&E $393,939.93 in restitution. DISCUSSION Defendant contends that under Penal Code section 1202.4,2 the victim restitution statute, PG&E could not recover the retail rate of electricity unless it presented evidence of lost profits––for example, evidence showing the energy demands of defendant’s unlawful grow operation prevented PG&E from providing power to another customer. Without such evidence, defendant maintains “the trial court should have ordered restitution calculated at the wholesale rate, or the value of the energy itself to PG&E, absent profits.”