Opinion
A131863
10-28-2011
THE PEOPLE, Plaintiff and Respondent, v. SHAORONG FANG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 1 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC068272A)
Shaorong Fang (appellant) appeals from a post-judgment restitution orderrequiring him to pay $56,507 to Pacific Gas and Electric Company (PG&E) after he was convicted of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) and theft of utility services (Pen. Code, § 498, subd. (d)). Appellant's counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record "to determine whether it contains any arguable . . . post-plea issues." Appellant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment.
Appellant has separately appealed from the judgment in which he raises a pre-judgment issue—the trial court's denial of his Penal Code section 1538.5 motion.
FACTUAL AND PROCEDURAL BACKGROUND
An amended information was filed October 4, 2010, charging appellant with: (1) planting, cultivating, harvesting, drying or processing of marijuana (Health & Saf. Code, § 11358, count 1); (2) possession of marijuana for sale (Health & Saf. Code, § 11359, count 2); (3) theft of utility services of a value exceeding $950 (Pen. Code, § 498, subd. (d), count 3); and (4) transportation of marijuana (Health & Saf. Code, § 11360, subd. (a), count 4). The information was filed after the police searched appellant's home and found 22 pounds of processed marijuana, over 800 marijuana plants in various stages of growth, high wattage light bulbs and a bypassed electric meter. Appellant pleaded guilty to counts 3 and 4 and the remaining counts were dismissed. Appellant was sentenced to two years in prison for count 3 and received a concurrent 16-month sentence for count 4. He received a total of 309 days in custody credits, which consisted of 155 actual days and 154 conduct days.
At a post-judgment restitution hearing, San Bruno Police Officer Mike Blundell testified that the police received an anonymous report of suspected "indoor cultivation of marijuana" occurring at a residence in Daly City. Blundell helped execute a search warrant at that residence on November 24, 2008. Upon searching the residence, he found 873 marijuana plants of various states of maturity, 28 1,000 watt light bulbs, and nutrients and other supplies necessary for ongoing cultivation of marijuana. The light bulbs were connected to electronic ballasts which were connected to timers that were set up to provide the marijuana with enough light for a certain number of hours each day. Blundell also found 22 pounds of processed marijuana that were packaged in "turkey bags," each of which held approximately one pound of marijuana. The total value of the 22 pounds of marijuana was $3,000 to $4,500. Over $10,000 in cash was found in another residence that was part of the execution of the search warrant. Blundell testified that it takes three to five months for a marijuana plant to be ready to harvest and that the processing time is approximately five to ten days. He could therefore determine that the operation had been going on for at least four to five months; he could not say with certainty when it had started. Blundell was also unable to determine whether anyone was living in the house. All of the marijuana was downstairs and the upstairs living area was "extremely messy." There were some household items, including pots, pans, an apron or towel, some food, furniture, children's toys and a Christmas tree.
The parties stipulated that the trial court would also receive into evidence the preliminary hearing testimony of Ron Field, an "energy theft investigator" for PG&E who testified regarding the amount of electricity theft associated with the residence in which the marijuana was found. Field testified that the PG&E account at the residence was opened in appellant's name on October 24, 2004, and had continuously been held in his name through November 24, 2008, the date of the search. Field testified that the electric meter at the residence had been bypassed, and that if the meter had been running properly, the power usage for the three years prior to the search would have cost $154,108.38 more than what was originally billed. He stated this was not an exact conversion because PG&E rates fluctuate according to volume consumed and have also changed over time.
The district attorney explained at the restitution hearing that Field calculated power usage for a three-year period because the statute of limitations for recovering lost utility services is three years.
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The trial court ordered restitution for one year of power usage, in the amount of $51,370 plus 10% interest of $5,137, for a total of $56,507.
DISCUSSION
We have reviewed the entire record and conclude there are no arguable issues that warrant further briefing. The restitution amount was reasonable in light of the fact that the residence had been receiving utility services under appellant's name for over four years and there were various facts supporting a finding that the operation was established and sophisticated, including numerous supplies in the house related to the ongoing cultivation of marijuana, 873 plants at various stages of growth, and 22 pounds of processed marijuana. Appellant was adequately represented by counsel throughout the proceedings. There are no issues that require further briefing.
DISPOSITION
The judgment is affirmed.
McGuiness, P.J. We concur:
Pollak, J.
Siggins, J.