Filed 9/21/16 P. v. Wong CA1/1
                         NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                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.


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       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.”




       1
       PG&E also sought approximately $4,000 for investigation-related costs.
However, the district attorney did not seek these costs as part of the restitution award.
     2
       All further statutory references are to the Penal Code.


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       To begin with, the restitution awarded in this case is authorized by section 1203.1
(not § 1202.4) because it was ordered as a condition of probation.3 (§ 1203.1,
subd. (a)(3) [in granting probation, trial courts “shall provide for restitution in proper
cases”].) Under section 1203.1, courts have a “much freer hand to impose restitution as a
condition of probation” than they do under section 1202.4. (People v. Walker (2014)
231 Cal.App.4th 1270, 1274.) “As long as the restitution imposed is ‘ “reasonably
related to the crime of which the defendant was convicted or to future criminality,” ’ it
may be imposed as a condition of probation—“even when the loss was not necessarily
caused by the criminal conduct underlying the conviction.” [Citations.] This greater
latitude to impose restitution arises from the purpose of probation to foster rehabilitation
[citation] as well as from the defendant’s consensual decision to forgo imprisonment in
favor of probation and its potentially more onerous conditions [citation].” (Ibid.) “There
is no requirement the restitution order be limited to the exact amount of the loss in which
the defendant is actually found culpable, nor is there any requirement the order reflect the
amount of damages that might be recoverable in a civil action.” (People v. Anderson
(2010) 50 Cal.4th 19, 27.) A trial court may use any rational method of fixing the
amount of restitution which is reasonably calculated to make the victim whole. (People
v. Goulart (1990) 224 Cal.App.3d 71, 83.)
       Under these principles, the trial court plainly did not abuse its discretion by
ordering defendant, as a condition of his probation, to pay restitution to PG&E based on
the retail rate for its electricity. The award is directly related to defendant’s crime of
cultivating marijuana since he stole the power for the grow operation. He is also being
held accountable for the entire loss PG&E sustained, i.e., he is paying the amount he
would have paid as a legitimate customer—an entirely appropriate responsibility for a
probationer.


       3
         That the trial court failed to indicate the statutory basis for its restitution order is
immaterial since “[w]e do not review the trial court’s reasoning, but rather its ruling.”
(J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6,
15.)


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       Even if restitution in this case were governed by section 1202.4, we would reach
the same conclusion. Section 1202.4 requires a defendant to make restitution “in every
case in which a victim has suffered economic loss as a result of the defendant’s conduct.”
(§ 1202.4, subd. (f); see People v. Phu (2009) 179 Cal.App.4th 280, 282 (Phu) [affirming
restitution order to electrical utility in marijuana plea case under § 1202.4, subd. (f)].)
There is no question PG&E suffered an economic loss directly as a result of defendant’s
cultivation crime, given that the stolen power was an essential part of the operation.
       In the trial court, the prosecution cited Phu in support of the requested restitution
amount. Defendant vigorously argued, as he does on appeal, that Phu involved a
different situation and thus is immaterial. The trial court recognized the facts of Phu
differed, but concluded the case provided a formula to determine the amount of
restitution.
       In Phu, the defendant pleaded guilty to conspiracy to sell marijuana. (Phu, supra,
179 Cal.App.4th at p. 282.) He was the utility subscriber for a house involved in a grow
operation, wherein the police found 504 plants, a large collection of growing apparatus
and equipment, and an illegal diversion of electrical power. (Ibid.) The utility calculated
its loss based on the expected electrical consumption of the grow operation (based on its
size and the nature of the equipment used), from the time the defendant started the utility
service until the police conducted the search. (Id. at p. 283.) The utility candidly
acknowledged it did not know the precise date when the defendant started stealing its
power, explaining it had made a reasonable assumption. (Ibid.) “ ‘[T]he assumption is
that we’re going to bill from the service start date because, as far as we’re concerned, he
entered into a contract with us, and he had a chance to have that service metered
accurately, and he chose not to.’ ” (Ibid.) The trial court awarded the utility company
$24,752.35, approximately $50 more in restitution than the it had requested, and the
Court of Appeal affirmed $24,704.91, deducting the additional approximately $50. (Id.
at pp. 283, 286.)
       It is true the principal issue in Phu was the utility’s assumption as to the start of
the period of theft and calculating its loss from the date the defendant signed up for


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electrical service. It is also true, however, as the trial court here observed, that the utility
in Phu calculated its loss by replicating what it would have billed the defendant for the
power he stole. While defendant maintains that means nothing since no issue was raised
in Phu about using the billing rate, we think this could well be because using the billing
rate was an entirely rational way to measure the utility’s loss. Indeed, defendant did not
cite in the trial court, nor has he cited on appeal, a single case supporting his assertion
that a utility may only recover its wholesale cost for stolen power or water and cannot
recover the profit it would have made had the service or product been properly metered,
billed and paid for. Contrary to defendant’s assertion, PG&E is not recovering a
“windfall” by recouping what it would have been paid for the electricity defendant and
his cohorts used, had they not stolen it by circumventing the meter.
       While defendant insists People v. Chappelone (2010) 183 Cal.App.4th 1159, is on
point, that is not remotely the case. In Chappelone, the defendants stole merchandise
from a Target department store. (Id. at p. 1166.) The trial court awarded restitution to
Target at the retail rate of the merchandise even though “the bulk of the goods were
unsellable because they were either damaged merchandise or clearance items withdrawn
from the sales floor.” (Id. at p. 1173.) The appellate court reversed, stating that “Target
was entitled only to restitution equal to the value of the stolen property, and by all
accounts at the hearing, the value was substantially less than the last retail price for most
goods. By failing to account for the fact that a majority of the stolen merchandise was
already damaged at the time of the theft—and thus destined for donation—the trial court
awarded Target restitution for property that was of greater quality than that which
defendants stole.” (Id. at pp. 1176–1177, italics added.) Here, there was not a shred of
evidence PG&E’s electricity was “already damaged” and thus not worth its market price
when it was stolen. On the contrary, it appears the electricity was fully charged and
produced a verdant crop of cannabis.
       In sum, the trial court did not abuse its discretion in awarding $393,939.93 in
restitution to PG&E.



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                            DISPOSITION
The judgment is affirmed.




                                 6
                                _________________________
                                Banke, J.


We concur:


_________________________
Humes, P. J.


_________________________
Margulies, J.




A145225, People v. Wong




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