Opinion
NOT TO BE PUBLISHED
Super. Ct. No. S09CRF0218
RAYE, P. J.Defendant Alysha Christine Maskaly and a codefendant entered a residence and stole marijuana plants, cultivating tools, smoking devices, and an iPod portable media player. An information charged defendant with residential burglary, receiving stolen property, and possession of marijuana for sale. Defendant entered a plea of no contest to the residential burglary charge; the court dismissed the other charges.
The court placed defendant on probation for three years and imposed victim restitution. Defendant appeals, contending the court erred in imposing restitution for property the victim unlawfully possessed, and the restitution order should be reduced. We shall direct the trial court to amend the abstract of judgment; in all other respects we shall affirm the judgment.
Factual and Procedural Background
On a summer evening in 2009 defendant entered the home of Dan French and Dani Aposhian. Defendant stole marijuana plants, cultivating tools, smoking devices, and an iPod from the residence.
Both French and Aposhian had prescriptions to use marijuana for medicinal purposes. During the burglary, 15 plants were cut off near their bases and removed. The plants were approximately four feet tall, budding, and ready for harvest. The plants were expected to yield five pounds of processed marijuana after drying, curing, and trim processing.
Following the burglary, two pounds of marijuana and the iPod were returned to the couple. French testified the returned marijuana was unusable and he threw it away.
An information charged defendant with residential burglary, receiving stolen property, and possession of marijuana for sale. (Pen. Code, §§ 459, 496, subd. (a); Health & Saf. Code, § 11359.) Defendant entered a plea of no contest to residential burglary, and the court dismissed the remaining counts in the interest of justice. The court suspended imposition of defendant’s sentence and placed her on probation for three years.
The court reserved jurisdiction for victim restitution. The victims filed a claim for restitution in the amount of $14,600. Following a restitution hearing, the court found defendant and her codefendant jointly and severally liable for victim restitution in the amount of $14,467. Defendant filed a timely notice of appeal.
Discussion
I.
Defendant argues the restitution amount to French should be reduced by $7,000. According to defendant, this amount represents the two pounds of marijuana that French grew not for personal use, but for the purpose of sale.
Background
The victim restitution claim at issue was for $14,999, calculated by multiplying the four pounds of marijuana the victims claimed were stolen by $3,500, the approximate value of marijuana per pound if purchased at a patient collective. The remaining $600 loss consisted of items stolen during the burglary, including scissors, trimmers, and smoking devices. The restitution claim was signed under penalty of perjury by both Aposhian and French.
During the restitution hearing, French testified that 15 marijuana plants were taken from the residence he shared with Aposhian. The marijuana produced by eight of the plants would fulfill French’s medical prescription; that produced by the other seven plants would fulfill Aposhian’s medical prescription. When the plants were stolen they had completed budding and were ready for harvest. Based on French’s experience, the 15 plants would have yielded five pounds of processed marijuana.
Almost two pounds of marijuana were returned to French; however, the marijuana was unusable and French threw it away. As a result, French purchased about two pounds of marijuana at a cost of $3,200 per pound to replace the spoiled marijuana.
According to French, his average use of marijuana varied. The amount depended upon his work schedule, stress levels, and day-to-day circumstances. In a typical week, he used from one to two ounces of marijuana.
French’s plants yielded about five pounds of marijuana three times a year. However, French did not usually need the full amount for personal consumption. In the past, he sold the excess marijuana to “collectives, ” “clubs, ” or “dispensaries.” French used the proceeds to finance future operating costs for future crops.
As a result of the burglary, French testified he lost four or five pairs of scissors, three grinders, and several pipes.
Defendant testified she took the marijuana plants, trimmed off the buds, and laid the buds on a tarp to dry. She did not dispose of any of the buds prior to their seizure, nor did she steal the scissors French claimed were stolen during the burglary.
A sheriff’s detective testified he found evidence that raised the specter of sales activity by defendant. He found a ledger with notes about sales and an estimation of earnings for selling the marijuana in $50 amounts.
The court ordered restitution in the amount of $14,467: $870 for stolen smoking devices, $80 for stolen cultivation tools, $117 for three grinders, and $13,400 for four pounds of stolen marijuana. Defendant argued that French was not entitled to compensation for the illegal sales of marijuana. The court responded: “Whether it’s legal or not legal I don’t think is an issue in determining the amount of restitution. You can certainly, once I make my ruling, if you think it’s appropriate, file an appeal, and perhaps the Court of Appeals would have a different view.”
Discussion
Penal Code section 1202.4, subdivision (a)(1), governing restitution, states in part: “[A] victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” The statute also provides 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.” (Pen. Code, § 1202.4, subd. (f).)
We construe a victim’s right to restitution broadly and liberally. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) We shall not disturb the trial court’s decision to grant restitution absent an abuse of discretion. An abuse of discretion occurs when the court orders an amount of victim restitution that is arbitrary and capricious. (People v. Giordano (2007) 42 Cal.4th 644, 663; People v. Rubics (2006) 136 Cal.App.4th 452, 462.)
Trial courts possess great discretion as to the types of information they may consider in determining victim restitution. Once a victim has made a prima facie showing of loss, the burden shifts to the defendant to demonstrate the amount of loss is incorrect. (People v. Phu (2009) 179 Cal.App.4th 280, 283; People v. Prosser (2007) 157 Cal.App.4th 682, 691.)
Defendant contends the court’s restitution award was arbitrary and capricious because it exceeded French’s estimated consumption of one to two ounces of marijuana per week. The residual amount, defendant argues, was illegally possessed for sale because no evidence suggests French grew the excess as a primary caregiver. The People do not dispute that a victim does not have the right to recover restitution for an item possessed illegally.
As noted, once French made a prima facie showing of the amount of marijuana lost, the burden shifted to defendant to show this amount was in error. However, defendant cannot meet this burden.
Both French and Aposhian had prescriptions for medical marijuana. French testified his level of marijuana use varied depending on a variety of factors, making an exact estimation of his individual use impossible.
In addition, as defendant acknowledges, approximately half of the marijuana grown was for Aposhian’s use under her medical marijuana prescription. No testimony pinpointed the amount used by Aposhian, and the trial court cannot be faulted for inferring that Aposhian’s needs were comparable to French’s and would account for the rest of the stolen marijuana. There is no evidence that at the time of the burglary French intended to sell any of the marijuana. Defendant’s argument to the contrary is not supported by the record.
Given the evidence before it, the trial court did not act arbitrarily or capriciously in setting restitution at $13,400 for the stolen marijuana. Defendant failed to establish that the restitution included marijuana French could not legally possess.
II.
Defendant contends the court erred in ordering her to pay $7,000 to French for the two pounds of marijuana she stole from him while also ordering her to pay $6,400 to French for the replacement of the other two pounds of stolen marijuana. According to defendant, these two pounds of marijuana belonged to Aposhian, not to French.
However, during the restitution hearing, the court noted there were two victims in the case, “Mr. French and his girlfriend [Aposhian].” The court stated: “So I’m going to order total restitution in the amount of $14,467 jointly and severally between the two coparticipants.”
The minute order states restitution in the amount of $14,467 is payable to the court “in favor of victim Danielle A. and Daniel F.” The abstracts of judgment are inconsistent with the minute order; they list the restitution amount separately for Aposhian and French. We shall direct the trial court to correct the abstract of judgment to accurately reflect that the restitution order is payable to both French and Aposhian. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The court is directed to correct the abstract of judgment to reflect that restitution is payable jointly and severally to both French and Aposhian. In all other respects, the judgment is affirmed.
We concur: NICHOLSON, J. MURRAY, J.