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Name: People v. Phu
Case #: C060511
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/17/2009

If there is a rational basis for determination of restitution, the order will be upheld; thus, an order for restitution to a utility company for electricity illegally diverted to grow marijuana that is calculated from the commencement of service, when there is no other evidence establishing the actual date of diversion as it relates to the cultivation, is reasonable. By his no contest plea, appellant was convicted of conspiracy to sell marijuana as a result of a marijuana growing operation in a house for which appellant was the utilities subscriber. In the investigation of the offense, it was discovered that modifications had been made to wiring in the residence that allowed for theft of electricity by bypassing the meter. At a restitution hearing, the court awarded restitution to the utility company for the cost of power from the date appellant first subscribed for utilities until the date of the discovery of the illegal diversion. Appellant argued that this was error because it was not definitively proven that this entire period of time was attributable to the illegal cultivation. The court disagreed, noting that a victim’s restitution right is to be broadly construed, and if there is a rational basis for the determination of the amount of restitution, the order will be upheld. Here, it could not be determined when the power began being illegally diverted and it was appellant’s misappropriation that resulted in the utility company’s inability to establish the date of theft. By selecting the initial date of subscription, the victim utility company would best be guaranteed full compensation for its loss.