Filed 8/12/15 In re Anthony F. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re ANTHONY F., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                                                F070703

         Plaintiff and Respondent,                                            (Super. Ct. No. JJD067981)

                   v.
                                                                                         OPINION
ANTHONY F.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Michael B.
Sheltzer, Judge.
         Thomas W. Casa, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-


*        Before Kane, Acting P.J., Detjen, J. and Smith, J.
                                   INTRODUCTION
       Appellant Anthony F. was adjudged a ward of the juvenile court after admitting to
two felonies, grand theft and unauthorized cultivation, harvesting, or processing of
marijuana, and one misdemeanor, possession of marijuana on school grounds. Anthony
was placed on supervised probation and ordered to pay restitution in the amount of
$21,450. Anthony appealed the amount of restitution and on May 19, 2015, filed a
revised opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We
affirm the order.
                    FACTUAL AND PROCEDURAL SUMMARY
       In June 2014, Anthony was apprehended by Porterville police after curfew; he had
marijuana plants in his possession. Anthony stated he had taken the marijuana plants
from a residence and provided law enforcement with the location of the residence. Law
enforcement contacted the victim, James Lisenbery, who told the officers the value of the
plants was $1,700.00.
       On July 14, 2014, as to the first amended petition filed pursuant to Welfare and
Institutions Code section 602,1 Anthony admitted violating Penal Code section 487,
subdivision (a), grand theft, and Health and Safety Code sections 11358, cultivation,
harvesting, or processing of marijuana, and 11357, subdivision (e), possession of
marijuana on school grounds. On July 31, 2014, on a new petition, Anthony admitted
violating Penal Code section 148, subdivision (a)(1), evading a peace officer.
       While pending disposition, Anthony was placed on electronic monitoring in the
custody of his mother; he violated the terms of his electronic monitoring. The juvenile
court ordered that Anthony be detained until the disposition hearing.




       1Allfurther statutory references are to the Welfare and Institutions Code unless
otherwise specified.


                                            2.
       At the disposition hearing held on August 21, 2014, the juvenile court found that
the maximum period of confinement for the offenses was four years. Deferred entry of
judgment was denied. Anthony was declared a ward of the juvenile court, placed under
the supervision of the probation officer, and ordered to reside with his mother.
       The matter of restitution to the victim was set for further hearing. Defense counsel
indicated she intended to consult with an expert prior to the restitution hearing.
       On October 20, 2014, the juvenile court held the first of two victim restitution
hearings. At this hearing defense counsel requested a continuance because Anthony was
not present and counsel had not yet had an opportunity to consult with an expert on the
valuation of the marijuana plants. Lisenbery was present and the juvenile court ordered
that he be given an opportunity to testify.
       Lisenbery testified he had a recommendation from a medical doctor for medical
marijuana. He stated that a total of 16 marijuana plants had been taken from his property,
eight of which were mature plants. He had driven to Oakland to purchase the plants in
January 2014. Lisenbery testified that a “lot of time and effort” had gone into growing
the plants, and he estimated each mature plant would provide eight ounces of usable
marijuana. He had been growing marijuana plants for about three years.
       Based upon “research on the internet,” Lisenbery valued a single mature plant at
between $4,000 and $5,600. If he had to purchase marijuana, as opposed to growing it,
Lisenbery testified that one ounce would cost $350 if he had to purchase the medical
marijuana from Harborside,2 a cannabis dispensary Web site. Lisenbery produced a copy
of the price list from Harborside. A value of $350 per ounce, multiplied by eight ounces
per plant, equaled a value of $2,800 per mature plant. At a value of $2,800 per plant, the


       2In  the reporter’s transcript, the spelling of the cannabis dispensary is spelled
“Harvest Site.” For purposes of this opinion, we will spell it “Harborside,” as this is how
it is spelled in People’s exhibit 1 attached to trial court’s minute order of October 20,
2014.


                                              3.
value of eight mature plants equaled $22,400. Lisenbery testified that he was requesting
restitution in the amount of $24,600 to cover the cost of the mature plants, the immature
plants, and the shade cloth that was destroyed when Anthony stole the plants.
       Defense counsel cross-examined Lisenbery. Lisenbery had used the Harborside
Web site as a basis for his valuation. Defense counsel elicited information that various
factors contribute to the ultimate yield of marijuana plants and not all mature plants have
the same value. In response to a question from the juvenile court about the mature plants,
Lisenbery verified that he had purchased marijuana plants in January and had cultivated
them until July, when they were stolen by Anthony.
       At the continued restitution hearing on December 22, 2014, the trial court opined
that it was inclined to order restitution in the amount of $21,450. Defense counsel
challenged this figure, contending that the value of $350 per ounce for marijuana was a
“premium” value and Lisenbery admitted he could obtain marijuana for less. Defense
counsel also argued that the tentative restitution amount was excessive, considering
Lisenbery had acknowledged he was out of pocket only $6,000 and marijuana was
obtainable locally for around $250 per ounce.
       The juvenile court noted the objection and conceded that Lisenbery had so
testified. However, the juvenile court stated that Lisenbery had, in fact, paid $350 per
ounce to obtain replacement medical grade marijuana, and the juvenile court was going to
use that figure rather than a lesser value for what reportedly was a lower grade marijuana.
The juvenile court stated that after deducting some offsets, the value of restitution it was
awarding to Lisenbery was $21,450, and the juvenile court ordered payment of victim
restitution be added to the conditions of probation.
                                      DISCUSSION
       On January 2, 2015, Anthony appealed from the December 22, 2014, restitution
order. On May 19, 2015, Anthony filed a revised appellant’s brief pursuant to Wende,



                                             4.
supra, 25 Cal.3d 436. In his brief, Anthony asks this court to examine the record to
determine whether counsel rendered ineffective assistance.
       Our review of the record discloses that defense counsel cross-examined Lisenbery
regarding the valuation of the marijuana plants, challenged the method of valuation of the
plants, and argued for a significantly lower restitution award than the amount sought by
Lisenbery. The juvenile court did make an offset against the amount sought by
Lisenbery, ultimately awarding $21,450. A victim’s valuation of loss is a proper basis
for a restitution order. (People v. Phu (2009) 179 Cal.App.4th 280, 283-284.)
       After an independent review of the record, we find that no reasonably arguable
factual or legal issue exists.
                                      DISPOSITION
       The restitution order is affirmed.




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