Filed 3/19/14 P. v. Thomson CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B246367

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA085110)
         v.

PHILIP STUART THOMSON,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Thomas R. Sokolov, Judge. Affirmed.


         Burton C. Jacobson for Defendant and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.


                                        _________________________
          Appellant Philip Stuart Thomson pled no contest to one count of theft of services
(electrical) over $950 (Pen. Code, § 489, subd. (b)), and one count of possession of a
controlled substance (methamphetamine) (Health & Safety Code, § 11377, subd. (a)). He
was placed on probation for a period of three years. Appellant was ordered to pay the
victim, Southern California Edison, restitution in the amount of $5,481.71 ($5,000 in
stolen electricity plus $481.71 in investigative costs).
          Appellant’s sole contention on appeal is that “there was no basis for the court to
make a finding that restitution should be $5,481.71; or any sum at all.” We disagree and
affirm.
                                       BACKGROUND
          At the contested restitution hearing, the prosecution presented the testimony of
Craig Ashley (Ashley), an investigator for Southern California Edison, who testified that
the electrical power to appellant’s house was disconnected on August 18, 2011 for
nonpayment of bills. On July 3, 2012, in connection with an unrelated police
investigation, another investigator with Southern California Edison discovered that
appellant had been stealing electricity from a neighbor’s house by attaching a bypass
device to the power line. Because appellant tapped into the power line before it reached
an electrical meter, there was no way to notice an increase in power usage at the
neighbor’s residence.
          Southern California Edison estimated the amount of stolen power based on
appellant’s previous usage, called a daily average, multiplied by the 320 days between
August 18, 2011, and July 3, 2012, which totaled $5,216.21.1 Ashley testified that the
average customer uses the same amount of power every month. On cross-examination,
Ashley admitted that Southern California Edison did not know the exact date appellant
began tapping his neighbor’s power line.

1
       Ashley referred to a daily average of $60.48. Appellant correctly notes that
multiplying this amount by 320 days equals $19,353.60. This is almost four times the
amount Southern California Edison sought to recover as restitution. As the People note,
“the more likely explanation is that appellant received the benefit of the doubt and a
lower daily consumption was used to determine the restitution owed.”

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       Appellant testified that he only tapped into his neighbor’s line for approximately
three months. The trial court found Ashley to be an “honest witness” and found “some
question on the credibility” of appellant.
                                       DISCUSSION
I. Standard of Review
       “We review a restitution order for an abuse of discretion and will not disturb the
trial court’s determination unless it is arbitrary, capricious and exceeds the bounds of
reason.” (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409.) The trial court
must use a rational method that could reasonably be said to make the victim whole.
(People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172; People v. Mearns (2002) 97
Cal.App.4th 493, 498.) The standard of proof at a restitution hearing is by a
preponderance of the evidence, not proof beyond a reasonable doubt. (People v. Keichler
(2005) 129 Cal.App.4th 1039, 1045.)
II. No Abuse of Discretion
       The trial court did not abuse its discretion in setting the amount of restitution
because it used a rational basis. Ashley testified that the amount of the stolen power’s
value was based on appellant’s past power usage measured from the time appellant
stopped obtaining power legally. Ashley testified that the average customer uses about
the same amount of power every month. Therefore, it was not unreasonable to apply this
presumption to appellant.
       Appellant focuses on the fact that Southern California Edison did not know
exactly when he started stealing electricity. While this may be true based on the nature of
appellant’s crime, it does not follow that he owes no restitution, as he claims. An almost
identical argument was rejected in People v. Phu (2009) 179 Cal.App.4th 280. There, as
here, the power company could not determine the exact date the defendant began stealing
power from a neighbor. The reviewing court concluded that the trial court correctly
based its restitution award on the earliest possible date the theft began, because doing
otherwise “almost certainly would have resulted in a restitution award that would fall
short of fully compensating the victim for the losses suffered,” and that “[s]electing the

                                              3
earlier date was the best guarantee that the victim would receive full compensation.” (Id.
at p. 284.) Likewise, the trial court here reasonably started the measure of loss from the
date appellant stopped lawfully buying electricity. Selecting a later date would allow
appellant to profit from the uncertainty generated by his own criminality.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                   _____________________________, Acting P. J.
                                         ASHMANN-GERST


We concur:



______________________________, J.
           CHAVEZ



______________________________, J.*
           FERNS




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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