P. v. Maskaly


Filed 6/1/11 P. v. Maskaly CA3



NOT TO BE PUBLISHED




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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(El Dorado)
----

THE PEOPLE, Plaintiff and Respondent, v. ALYSHA CHRISTINE MASKALY, Defendant and Appellant.

C065670 (Super. Ct. No. S09CRF0218)

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 â€