Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F06131
CANTIL-SAKAUYE, J.
Defendant Dalshawn Edward Boson pled no contest to possession of marijuana for sale (Health & Saf. Code, § 11359) and utility theft (Pen. Code, § 498, subd. (b)). In exchange, a related count and two arming enhancements were dismissed. Defendant was sentenced to state prison for two concurrent low terms of 16 months plus eight months consecutive on an unrelated case. He was awarded 70 days of custody credit and 70 days of conduct credit. Following a contested restitution hearing, defendant was ordered to make restitution to the Sacramento Municipal Utility District (SMUD) in the amount of $44,137.56.
Hereafter, undesignated statutory references are to the Penal Code.
At the request of defendant’s appellate counsel, the trial court modified its previous award of conduct credit to conform to the recent amendments to section 4019, effective January 25, 2010. The court prepared an amended abstract of judgment reflecting the modification.
On appeal, defendant contends there was no “factual and rational basis” for a portion of the restitution order. We shall affirm the judgment.
Because the matter was resolved by plea, our statement of facts is taken from the probation officer’s report.
In May 2009, the Elk Grove Police Department was informed of suspicious activity at a residence on Drais Way. Detectives proceeded to the exterior of the residence where they observed signs of indoor marijuana cultivation and noticed that someone had tampered with the electric meter. Investigation revealed that defendant and a female were the primary residents, and that defendant had control of two other Elk Grove residences, which were located on Stevenson Avenue and Village Wood Drive. Both of those homes also showed signs of indoor marijuana cultivation on the premises.
The female was a codefendant in the trial court. She is not a party to this appeal.
In August 2009, search warrants were served on the three residences and for vehicles being driven by defendant and the female. At the Drais Way residence, officers found a loaded firearm, one-half ounce of processed marijuana, and a scale. They also found that a metal pin had been inserted into the electric meter to prevent it from functioning properly.
At the Stevenson Avenue residence, officers found nine grams of marijuana and a loaded firearm. A large workshop in the rear of the residence appeared to be in the process of being converted for marijuana cultivation. Again, a metal pin had been inserted into the electric meter to prevent its proper functioning.
At the Village Wood Drive residence, detectives located 681 marijuana plants, more than a pound of processed marijuana, and multiple scales. Again, a metal pin had been inserted into the electric meter to prevent its proper functioning.
DISCUSSION
Defendant contends there was no “factual and rational basis” for the order to pay $29,339.25 as restitution for electricity stolen at the Village Wood Drive residence. We disagree.
California law compels trial courts to order persons convicted of crimes to pay restitution to their victims. Section 1202.4, subdivision (f), mandates 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.”
“At a victim restitution hearing, a prima facie case for restitution is made by the People based in part on a victim’s testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] ‘Once the victim has [i.e., the People have] made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. [Citations.]’ [Citation.]” (People v. Millard (2009) 175 Cal.App.4th 7, 26.)
We review a challenge to the amount of victim restitution for abuse of discretion. (People v. Baker (2005) 126 Cal.App.4th 463, 468-469.) As this court recently noted, “‘“A victim’s restitution right is to be broadly and liberally construed.”’” (People v. Moore (2009) 177 Cal.App.4th 1229, 1231.)
“‘“‘When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.’” [Citations.]’ [Citation.] However, a restitution order ‘resting upon a “‘demonstrable error of law’” constitutes an abuse of the court’s discretion. [Citation.]’ [Citation.] ‘In reviewing the sufficiency of the evidence [to support a factual finding], the “‘power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, ’ to support the trial court’s findings.” [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] “If the circumstances reasonably justify the [trial court’s] findings, ” the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact. [Citation.]’ [Citation.]” (People v. Millard, supra, 175 Cal.App.4th at p. 26.)
In this case, SMUD calculated the amount of its loss at the Village Wood Drive residence by inventorying the marijuana-growing equipment found in the residence and examining the settings displayed on timers found at the residence. The equipment included thirteen 1, 000-watt grow lamps, and the timers were programmed to operate attached equipment for 18 hours per day. If all the lamps were in use and controlled by the timers, they would consume approximately 234 kilowatt hours per day. When the lamps were considered together with other found equipment, SMUD concluded that the residence was consuming 250 kilowatt hours per day in addition to the 30 kilowatt hours per day that had been registered by the electric meter and for which SMUD had already been paid.
To convert the 250 kilowatt hours per day into a dollar amount of loss, SMUD assumed that the entire 250 kilowatt hours had been consumed each day from October 17, 2007, when service was placed in defendant’s name (see People v. Phu (2009) 179 Cal.App.4th 280, 284 [whereas here there is no evidence of a definitive “start” date for the theft, any date other than the onset of SMUD service is speculative]) until the date of the search, August 12, 2009. Using this method, SMUD concluded that its loss was $29,339.25.
In order to “‘demonstrate that the amount of the loss [was less] than that claimed by’” SMUD (People v. Millard, supra, 175 Cal.App.4th at p. 26), defendant relies in part on the fact that, at the time of the search, the 13 grow lamps were unplugged and stacked up in the garage. In fact, the entire Village Wood Drive growing operation had the appearance of being torn down, whereas the Stevenson Avenue growing operation appeared to be in the process of being set up.
Although this evidence suggested that the operation was being moved from the Village Wood Drive residence to the Stevenson Avenue residence, no evidence showed when the alleged relocation process had begun or how long the grow lamps had been disconnected. The trial court was not required to speculate that the lamps had been disconnected for any particular period prior to the search. (People v. Phu, supra, 179 Cal.App.4th at p. 284.) The fact that the evidence could have justified a finding that the lamps had been disconnected for some brief period does not warrant reversal of the judgment. (People v. Millard, supra, 175 Cal.App.4th at p. 26.)
In People v. Phu, supra, 179 Cal.App.4th 280, a SMUD witness testified that inventorying the equipment hooked up to power is the “most accurate method for assessing power usage.” (Id. at p. 285.) Nothing in Phu suggests that where, as here, the discovered growing equipment isnot hooked up to power, the equipment must be excluded from the inventory upon which restitution is calculated.
Defendant relies, in part, on his testimony that he had purchased the 13 grow lamps just one month prior to the search and that he never had the opportunity to connect any of them to electricity. However, he conceded that in one of the bedrooms at the Village Wood Drive residence he had installed a single 1, 000-watt lamp, which was not one of the 13 found in the garage. Because detectives had located 681 marijuana plants at the Village Wood Drive residence, the trial court could deduce that more than one grow lamp had been used there and that defendant’s testimony on the point was not credible.
Defendant also relies, in part, on a real estate agent’s testimony that she had walked through the Village Wood Drive residence on June 15, 2009, about two months prior to the search, but she had not seen any marijuana. However, the agent added that in the backyard of the residence, she had observed some black plastic covering some green plants. Moreover, defendant conceded on cross-examination that he had moved some marijuana plants from the house to the backyard prior to the real estate showing. The trial court could deduce that defendant had prepared for the showing, not only by moving the marijuana, but also by moving the grow lamps. Because no evidence showed how long the lamps had been inoperative due to the real estate showings, any reduction of the restitution award would have been “necessarily speculative.” (People v. Phu, supra, 179 Cal.App.4th at p. 284.) No such reduction was required.
Defendant argues, “[a] reasonable assumption is that the marijuana operation at... Village Wood Drive did not steal any more electricity than was stolen at... Drais Way, which was $14,798.56.” This is simply an assertion that the circumstances reasonably would support a different finding. The point is unavailing under our standard of review. (People v. Millard, supra, 175 Cal.App.4th at p. 26.)
In any event, the evidence suggested that the restitution computation for the stolen electricity at the Drais Way residence was too low, not that the restitution computation for the Village Wood Drive residence was too high. At the Village Wood Drive residence, timers were found suggesting that electricity was being stolen for 18 hours per day. Because no timers were found at the Drais Way residence, SMUD merely assumed that electricity was being stolen for “a minimum of 12 hours” per day. But, if similar growing operations had been conducted at both locations, the electricity theft at the Drais Way residence could have continued for 18 hours per day, as they evidently did at the Village Wood Drive residence.
Defendant claims SMUD’s loss computation for the Drais Way residence was more accurate than its computation for the Village Wood Drive residence, because the Drais Way residence included “an actual meter reading in June 2007.” Specifically, the SMUD employee who had visited the Drais Way residence determined that the residence was then consuming 91 amperes. No similar amperage reading was taken at the Village Wood Drive residence because, by the time of SMUD’s first visit there, all the grow lamps had been unplugged and they were not contributing to the total amperage being consumed by the residence. Thus, while the amperage computation at the Village Wood Drive residence may have been less accurate than the measurement at the Drais Way residence, it was necessarily and reasonably so, due to the condition in which the growing equipment had been discovered. There was no error.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., ROBIE, J.