Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FVI702464 Gregory S. Tavill, Judge.
Stanley W. Hodge and Arshak Bartoumian for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
Pursuant to a plea agreement, defendant Fredrick Eugene Frogue pled nolo contendere to cultivation of marijuana. (Health & Saf. Code, § 11358.) In exchange, other charges and enhancements were dismissed, and defendant was placed on probation for two years. After holding a restitution hearing and determining that electricity had been taken, without payment, from Southern California Edison (SCE) for use in the cultivation of the marijuana, the court ordered defendant to be jointly and severally liable with his two codefendants to pay victim restitution in the amount of $71,883.06.
On appeal, defendant contends the court abused its discretion in ordering him to pay restitution to SCE, since he was not convicted of theft of the electricity. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are derived from the probation report.
On November 1, 2007, deputies from a marijuana eradication task force executed a search warrant at a residence in Lucerne Valley (the residence) and discovered 843 live marijuana plants. They also found a .45-caliber pistol and large amounts of equipment used for growing marijuana inside the residence. In addition, there was an electrical bypass, which allowed for the theft of electricity, found on the property.
Defendant arrived at the residence during the execution of the search warrant, and he told the deputies he was there to do some plumbing work. The deputies searched him and found $7,000 in cash, as well as business cards from businesses that supply equipment for the growing of marijuana, and two receipts for marijuana-growing supplies. Defendant refused to answer any questions but spontaneously stated that the residence was being supplied with natural gas, and he was not aware of the electrical bypass.
During an interview at the Victorville Probation Department, defendant said he met codefendant, Derrell Stanfield, and agreed to do plumbing work for Stanfield in exchange for about $2,000 worth of marijuana. Defendant said he was aware there was a firearm at the residence.
SCE conducted a field investigation and examined all of the electrical equipment inside the residence and the “sophisticated” electrical bypass, which fed stolen electricity to the residence. SCE estimated the total cost of the electricity used to cultivate marijuana at the residence was $430,632.76.
Defendant was originally charged with cultivating marijuana (Health & Saf. Code, § 11358, count 1), possession of marijuana for sale (Health & Saf. Code, § 11359, count 2), theft of services over $400 (Pen. Code, § 498, subd. (b), count 3), and sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a), counts 4 and 5). Various other firearm enhancements were also alleged against defendant. Defendant pled nolo contendere to count 1 and the remaining counts and enhancements were dismissed as part of a plea agreement.
Although the felony complaint for count 3 refers to Penal Code section 498, subdivision (b), the correct subdivision for theft of services over $400 is subdivision (d).
The court held a restitution hearing on March 7, 2008. An SCE investigator testified that the customer for electricity at the residence was codefendant Stanfield. The investigator walked through the residence and saw the equipment used to cultivate the marijuana, including “grow lights,” fans, an air conditioning unit, water pumps, carbon filters, and blowers. The investigator estimated that 1,963,606.6 kilowatt hours had been taken from SCE over a period of 1,695 days, without being billed, for a loss of approximately $462,000. SCE subsequently rebilled it at three years for a loss of $325,000, since it determined that it would be difficult to collect anything beyond three years.
Probation Officer Peter Bockman also testified at the hearing. Bockman had interviewed defendant, who admitted he was involved in the cultivation of marijuana at the residence for approximately one year. Defendant also told Bockman he was unaware that electricity was being stolen at the residence. Codefendant Stanfield told the probation officer he had been cultivating marijuana at the residence for seven to eight years.
The trial court determined the cost per kilowatt hour was .17 cents, which translated to a yearly loss of $71,883.06. The court noted that the crimes were not separate and unrelated but were “an on-going enterprise.” It stated the crimes “could be characterized possibly as an uncharged conspiracy.” It then asserted that defendant was, at a minimum, an aider and abettor. The court determined that defendant, another codefendant (Anthony Perez), and Stanfield would be jointly and severally liable for the cost of electricity during the last year, which would be $71,883.06, and that Stanfield would be liable for any amount in excess of that. The court granted two years of supervised probation for defendant, with payment of the victim restitution fine as one of the probation terms.
ANALYSIS
The Court Properly Ordered Defendant to Pay the Victim Restitution Fine
Defendant argues that the court abused its discretion in ordering him to pay the restitution fine in favor of SCE, since he did not aid and abet in the commission of the crime of theft of electricity. He contends that Penal Code section 1202.4 limits a restitution award to those losses caused by the crime of which a defendant is convicted. We find no abuse of discretion.
Defendant is correct that “when a court imposes a prison sentence following trial, [Penal Code] section 1202.4 limits the scope of victim restitution to losses caused by the criminal conduct for which the defendant sustained the conviction.” (People v. Woods (2008) 161 Cal.App.4th 1045, 1050.) However, “[t]his limitation does not apply in the context of grants of probation.” (Ibid.) “Restitution has long been considered a valid condition of probation. [Citation.] Penal Code section 1203.1 requires trial courts to ‘consider whether the defendant as a condition of probation shall make restitution to the victim or the Restitution Fund,’ and requires the court to ‘provide for restitution in proper cases.’ (Pen. Code, § 1203.1, subds. (b) & (a)(3).) California courts have long interpreted the trial courts’ discretion to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction. Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [Citation], by conduct underlying dismissed and uncharged counts [Citation], and by conduct resulting in an acquittal [Citation].” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, fn. omitted.)
“Thus, it is well settled that a court may impose a victim restitution order as a condition of probation regardless of whether or not the defendant has been convicted of the underlying crime. But this rule flows from the notion ‘that the granting of probation is not a right but a privilege, and that if the defendant feels that the terms of probation are harsher than the sentence for the substantive offense he is free to refuse probation.’ [Citation.] Because a defendant has no right to probation, the trial court may impose probation conditions that it could not otherwise impose, so long as the conditions are not invalid under the [People v. Lent (1975) 15 Cal.3d 481] criteria. [Citation.]” (People v. Percelle (2005) 126 Cal.App.4th 164, 179-180 (Percelle).) Our Supreme Court in People v. Lent stated the criteria for assessing the validity of a condition of probation, as follows: “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ [Citation.]” (People v. Lent, supra, 15 Cal.3d at p. 486, fn. omitted.) All three factors must be present for a condition of probation to be invalid. (People v. Wardlow (1991) 227 Cal.App.3d 360, 366.)
Here, the probation condition requiring defendant to pay restitution for one year of electricity loss was related to his crime. He admitted to the probation officer that he had been involved in the cultivation of marijuana at the residence for approximately one year. At the residence, the SCE investigator observed the equipment used to cultivate the marijuana, including “grow lights,” fans, an air conditioning unit, water pumps, carbon filters, and blowers. The investigator determined that 1,963,606.6 kilowatt hours of electricity had been stolen through the electrical bypass at the residence over a period of 1,695 days. SCE further estimated that the total cost of the electricity used to cultivate marijuana at the residence was approximately $462,000. Since defendant pled nolo contendere to cultivating marijuana, and the stolen electricity was used to grow the marijuana, the court properly ordered defendant to make restitution to SCE, the “victim” of the stolen electricity.
Therefore, the court did not abuse its discretion in ordering defendant to pay restitution as a condition of probation.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., GAUT, J.