1

Filed 7/8/15 P. v. Kong CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNY KONG,

Defendant and Appellant.

 A139905

 (San Mateo County

 Super. Ct. No. SC074510A)

THE COURT:

The written opinion filed on June 18, 2015 is modified as follows:

In the first full paragraph on page 12 of the opinion, the sentence that reads, “As 

the Attorney General explains, however, defendant has not cited any federal case in 

which the court’s consideration of defendant’s lack of remorse in denying probation was 

found to violate the Fifth Amendment,” is modified by adding a new footnote at the end 

of that sentence reading: 

In a petition for rehearing, defendant, relying on Minnesota v. Murphy (1984) 

465 U.S. 420 (Murphy), contends that the Fifth Amendment protected him from being 

compelled to make admissions in order to secure a favorable probation decision. In 

Murphy, the court held that the Fifth Amendment right against self-incrimination not only 

protects an individual against being involuntarily called as a witness against himself at a 

criminal trial in which he is a defendant, but also “ ‘privileges him not to answer official 

questions put to him in any other proceeding, civil or criminal, formal or informal, where 

the answers might incriminate him in future criminal proceedings . . . unless and until he 

is protected at least against the use of his compelled answers. . . .’ ” (Murphy, supra, at

p. 426, quoting Lefkowitz v. Turley (1973) 414 U.S. 70, 77.) A person does not lose his 

Fifth Amendment rights simply because he has been convicted of a crime. Even where a 

person is imprisoned or on probation, if the state compels him to make incriminating 

statements that could be used in a prosecution against him for a crime other than for 
2

which he has been convicted, his Fifth Amendment rights have been violated. (Murphy, 

supra, 465 U.S. at p. 426.) Because the defendant in Murphy voluntarily told his 

probation officer about his crimes, he could not invoke his Fifth Amendment privilege to 

prevent the information from being used against him in a subsequent criminal 

prosecution. (Id. at p. 428–429.)

Here, defendant asserts that an expression of remorse would have exposed him to 

criminal charges for the Valleywood grow operation. Nothing in the record supports his 

claim that he could have been so charged. At sentencing, the court was concerned simply 

with whether defendant was remorseful, a factor that bore on the court’s decision to grant 

or deny probation.

This modification does not effect a change in the judgment. 

Dated: _________________ _____________________________, P. J.
1

Filed 6/18/15 P. v. Kong CA1/4 (unmodified version)

NOT TO BE PUBLISHED IN 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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNY KONG,

Defendant and Appellant.

 A139905

 (San Mateo County

 Super. Ct. No. SC074510A)

Kenny Kong appeals from a judgment upon a jury verdict finding him guilty of 

possession of marijuana for sale (Health & Saf. Code, § 11359), cultivating marijuana 

(Health & Saf. Code, § 11358), and theft of utility services exceeding $950 in value (Pen. 

Code, § 498, subd. (d)). The jury also found true the allegation that the value of utility 

services taken exceeded more than $65,000 within the meaning of Penal Code section 

12022.6, subdivision (a)(1). Defendant contends that the trial court violated his Fifth 

Amendment right against self-incrimination when it declined to grant him probation 

because he refused to express remorse and accept responsibility for his offenses. He also 

argues that the restitution award must be reversed because it violated his Sixth 

Amendment right to a jury trial. We affirm.

I. FACTS

A. The Exeter House

The parties stipulated that the house at 3651 Exeter in San Bruno was purchased 

by Leo Chang on May 15, 2005. The property was sold in a foreclosure sale at a public 

auction on April 6, 2011. On April 12, 2011, Manhattan Real Estate, acting for the new 
2

owner, hired a contractor to install new locks on the security gate and the front door. In 

the course of changing the locks, the contractor went inside the residence and observed 

marijuana plants growing there. He reported his observations to Manhattan Real Estate, 

which in turn called the police. 

Officer Plank, a member of the San Mateo County Narcotics Task Force, testified 

that he investigated the call on April 12, 2011, and responded to the Exeter Street house

at about 8:00 p.m. Upon arrival, he noticed that the windows on the front of the house 

were covered with curtains or blinds that prevented any view into the house and 

potentially blocked any type of light from coming in or out. In Plank’s experience, the 

windows in a house that has an indoor marijuana grow operation are typically covered 

with drywall or thick, heavy plastic material to prevent anyone from seeing inside the 

house and also to regulate the light on the plants growing inside the house. Plank also 

heard a humming sound coming from the inside of the house. Plank found this 

significant because an indoor grow operation requires a large amount of equipment 

including fans, pumps, and 1,000-watt light bulbs that may create a humming or buzzing 

noise. Based on the contractor’s and Plank’s observations, Plank obtained a search 

warrant to search the house. 

The warrant process took several hours. In the meantime, other members of the 

Narcotics Task Force conducted surveillance of the house. At approximately 11:00 p.m., 

these officers saw a U-Haul truck drive past the house and park on the street for about ten 

minutes. Plank directed them to effect a traffic stop on the truck. Plank went to the area 

of El Camino and Westborough Boulevard, where the truck had been stopped. There, 

Officer Blundell had detained Guow Liao, Yueri Wu, and Hao Jiang. The officers seized 

keys from the men and Plank took the keys to the Exeter residence to check whether any 

of the keys fit any of the doors or locks. The keys did not fit any of the locks. 

Plank executed the search warrant on the house. The house did not appear to be 

used for living purposes. There was no bedding in the bedrooms and no plates, pots, or 

pans in the kitchen. There were high-powered lights hanging from the ceiling in half of 

the two-car garage and trays with marijuana growing in them. There were three rooms 
3

dedicated to growing marijuana on the second floor of the house and two rooms on the 

first floor being used for that purpose. In total, Plank found 540 marijuana plants 

growing in the house. 

There were thirty-three 1000-watt lights affixed in the light hoods in the five 

rooms over the marijuana plants. Some of the trays for marijuana plants were not full or 

at their maximum capacity, so Plank surmised that some of the plants had either been 

taken out or moved to a different location. The downstairs rooms had a low number of 

plants given the amount of space available. Plank opined that the space was not being 

used optimally as grow operations tend to maximize the amount of plants. 

Plank also found items of personal property in the house. He found a black purse 

in one of the bathrooms on the second floor of the house. Inside or next to the black 

purse, Plank found a DMV registration renewal notice with a due date of March 22, 2011, 

for a 2005 BMW addressed to defendant at an address on Francisco Street in San 

Francisco. In addition, he found another DMV registration renewal notice for a 2003 

Toyota, also addressed to defendant at the Francisco Street address, with a due date of 

May 31, 2011. Other documents found included a collection notice dated February 25, 

2011, from LDC Collection System addressed to defendant at the Francisco Street 

address for unpaid parking tickets for a third license plate number, a child’s birth 

certificate with the mother listed as Hao Shun Huang (no father was listed), and a 

handwritten piece of paper with a set of names and numbers ranging from +120,000 to

-7,000. Plank explained that the paper could have been used to keep track of how much 

money was either being made inside the grow operation, the cost of the operation, or who 

got paid. Finally, there was a room key and an express checkout paper from Cache Creek 

Casino Resort, listing the guest name as Jinglian Mei, with an arrival and departure date 

of April 6, 2011. 

In the living room, Plank found additional documents including a letter from 

Chase Home Finance, a delinquent invoice from the City of San Bruno Utility Billing 

Department, and a Pacific Gas & Electric (PG&E) bill, all addressed to Leo Chang. He 

also found prescription medications in the name of Paty Vu that were issued in 2008. 
4

Plank explained that the 540 plants found in the house were at different stages of 

growth, from the beginning stage to the stage where the plants were ready to be 

harvested. On the low end, the plants would produce about two ounces of marijuana per 

plant, for a total of 67 pounds of marijuana if all of the plants completed their growth 

cycle. At the low end of the going rate at the time, the price per pound of marijuana was 

about $1,500, or a little over $100,000 for the 540 plants. 

Plank did not find any processed marijuana at the house. He opined that the 

processing was likely being done at another location while the primary purpose of the 

Exeter house was cultivation. 

The police called PG&E to determine whether the electricity meter for the Exeter 

house was bypassed. Joseph Torrigino, an electric troubleshooter for PG&E, investigated 

the meter at the Exeter house. Torrigino discovered that the meter had been bypassed—a

new electrical panel had been installed in the bathroom wall and a pipe leading to the 

original meter had been cut. New connections had been added to allow the electricity to 

go through the new panel. 

Moses Cain, a revenue assurance investigator for PG&E, explained that the 

electricity meter counts the amount of kilowatt hours that are being used in a home. 

PG&E bills its customers based on the number of kilowatt hours used. Cain testified that 

a meter bypass allows a customer to get electricity into the home without being billed for 

it. Under these circumstances, a small amount of electricity continued to go through the 

regular meter. 

Cain testified that typical residential usage in San Bruno for a three or fourbedroom house is between 300 and 500 kilowatt hours per month, with the amount 

varying seasonally. He explained that in estimating how much electricity is being 

utilized by a meter bypass, he does a “load survey” to determine what is connected to the 

wires that have bypassed the meter. He counts the number of appliances connected to the 

bypass, and utilizing the Underwriters Laboratories’s tags, which have ratings stating the 

amount of watts the appliance would use under the best of circumstances in one hour, he 

can multiply that amount by the number of hours the appliances are used on an average 
5

daily basis. Using this information, he calculated that the Exeter house was using 

402 kilowatt hours a day, about 30 times the normal usage for a typical residence in San 

Mateo County. 

Cain also made certain assumptions in calculating the amount of electricity that 

bypassed the meter. First, he assumed that the bypass did not begin immediately upon 

commencement of service, because the grow cultivation process had not yet been 

established. Second, he reviewed the usage history, and in his experience, Cain found 

that most of the time usage will go up and then plateau once the bypass is in place. 

Finally, he assumed that the usage in the house was consistent—that the manner of the 

usage in all of the rooms upon discovery was the way they were used for cultivation 

during the bypass period. 

PG&E’s records showed that Leo Chang set up the electrical service for the Exeter 

house on May 6, 2004. After reviewing the electricity history for the Exeter house, Cain 

determined that there was a spike in service on September 22, 2008, to $157 per month in 

usage. Prior to this time, the average daily use at the property was only 1.16 to 

1.21 kilowatt hours per day, approximately $5 per month. In October, the usage almost 

doubled to 48 kilowatt hours per day, and the usage stayed around that amount for 

another month and then dropped. After these three months, the average daily kilowatt 

use dropped and remained relatively flat at about $20.36 per month until the search 

warrant was executed on April 12, 2011. Cain testified that such low usage was unusual 

since in an ordinary residence, usage tends to fluctuate with the seasons, vacations, and 

other factors. 

Based on a police report, which detailed the description of the rooms dedicated to 

growing marijuana, the lights and other appliances used in the grow operation, and the 

amount of time the appliances were used during the day,1 Cain computed the loss to 

PG&E as $142,707.66. 

 

1 Cain testified that the lights and equipment were run on a timer, which was on a 

12-hour cycle. 
6

B. The Valleywood House

On the evening of April 29, 2011, John Scafire was living next door to the house 

at 2331 Valleywood Drive in San Bruno. He heard a loud banging noise coming from

the Valleywood house. He looked out his bedroom window and saw two men on the 

front porch of that house trying to kick down the front door. At one point, one of the men 

went down to the street and picked up a concrete block and threw it at the door. The door 

flew open, and the men entered the house. Scafire’s wife called 911. 

The men were inside the house for about two minutes before leaving in a black 

BMW sedan, heading west on Valleywood Drive. Officer Schimek responded to the 

dispatch call and effected a traffic stop on the BMW which was speeding. Defendant was 

the driver of the BMW. Kitae Chae was in the front passenger seat of the car. 

Meanwhile, Officer Blundell responded to the Valleywood house and found an 

indoor marijuana cultivation operation. No one was in the house. 

Blundell then learned that the BMW leaving the Valleywood house had just been 

stopped so he went to that location. When he arrived, defendant and Chae were still in 

the car, so he asked defendant to step out of the car. Defendant did so and consented to a 

search of his person. Blundell found that defendant had three cellular phones. Defendant 

also consented to a search of the BMW. In the trunk of the car, the police found a pouch 

containing $7,100 and defendant’s wallet, which had his driver’s license, credit and debit 

cards, $5,100 in cash, and numerous debit-type gift cards. The pouch also contained an 

iPod, some receipts, and two blank checks with defendant’s name on the account. The 

trunk also contained Bounce fabric softener sheets, clothing, a vacuum, and dust masks. 

In the BMW, the police also found a storage unit agreement in defendant’s name 

for All Aboard Mini Storage. The storage unit was paid through April 30, 2011. In the 

glove compartment, the police found a postal service delivery notice addressed to Leo 

Chang at the Exeter house, defendant’s Wells Fargo check book, a piece of paper listing 

various addresses and times with phone numbers and dollar amounts in the $2,000 to 

$3,000 range. Blundell also found a Bank of America statement in the name of 

Kevin K. Ng with an address in San Francisco, and a Medi-Cal denial letter addressed to
7

Hao Shun Huang with an address on Rivera Street in San Francisco. The glove 

compartment also contained a Cache Creek advertisement in the name of Virginia Pon 

with a post office box address in San Francisco. Pon was one of the residents of the 

Valleywood house. 

In the driver’s side door pocket, Blundell found a business card for DS Gardens 

with a website address of GreenGoldHydro.com, which based on his training and 

experience, was a hydroponic store selling items for indoor cultivation of marijuana. 

Behind the driver’s seat on the floorboard, Blundell found a two-and-a-half-foot by threefoot vacuum-sealed plastic bag that contained a strong odor of fresh marijuana. The bag 

was empty. Blundell was aware that people involved in the cultivation and sale of 

marijuana use vacuum-sealed bags or food saver type bags to store and keep bulk 

marijuana. 

There was also a GPS system in the car on the center dash. Under the recent 

history, Blundell found two addresses on Valleywood Drive in San Bruno. 

Scafire identified defendant at the scene as one of the men he saw kicking the door 

of the Valleywood house. The police arrested defendant and subsequently interviewed 

him. Defendant told the police that he and Chae had been at a restaurant and were on 

their way to a bowling alley in Daly City. He said that he had not stopped at the 

Valleywood house. He also said that he was unaware of the vacuum-sealed bag in the 

car. He denied knowledge of the Exeter house. He said he had recently been in New 

Orleans. He claimed that he rented the storage unit for someone else, but when asked 

what was inside of the unit, he responded, “I don’t want to answer that.” 

Officer Plank subsequently obtained a search warrant for the storage unit. In the 

storage unit, he found the same or similar white plastic growing trays as those found in 

the Exeter house. Some of the trays appeared to have been used. Plank also found 

several charcoal filters and some black plastic trays similar to the trays that were in the 

closets of the kitchen at the Exeter house, where the small marijuana plants were 

growing. The unit also contained a garden sprayer and 6-gallon fertilizer jugs of various 

types like those found at the house. Plank also saw fibrous Grodan cubes used for 
8

developing the root system of marijuana plants. Some of them had been used. 

Additional items in the unit included a garden hose, high pressure fans, three light hoods, 

and blue plastic stools like the ones used to hold up the white trays in which the

marijuana plants were growing at the Exeter house. Only 15 to 20 percent of the storage 

unit was being used; Plank opined that the unit was large enough to accommodate all of 

the growing equipment found at the Exeter house. 

C. The Defense Case

Defendant testified in his own defense. He had just returned from New Orleans 

when he was arrested on April 29, 2011. He travelled with Michael Cho and Henry Ng.2

Upon his return, he discovered that Hao Shun Huang had stolen some jewelry from his 

safe at a flat on 35th Avenue in San Francisco. Defendant began dating Huang in July 

2008. She became pregnant and gave birth to their child in August 2009. Huang 

subsequently gave birth to another child. Defendant, however, is not the second child’s

father. 

After having dinner on April 29, defendant got “worked up” about Huang and 

decided to look for her. He thought she might be with Virginia Pon, Huang’s friend. 

Defendant denied knowing Pon but knew of her friendship with Huang.3 He had 

previously picked up Huang at Pon’s house. Defendant owned three cars—a Toyota 

Forerunner, a BMW 545 and a Ford Econoline. 

Defendant drove to Pon’s house with Chae. He testified that he banged on the 

door after getting no response after ringing the doorbell. He also testified that he found a 

stone near the front of the house and used it to break open the door. He and Chae entered 

the house, but did not find anyone at home. He did, however, see marijuana plants with a 

lot of lights growing in one of the upstairs rooms of the house. He panicked and left the 

house with Chae. 

 

2 Cho testified and confirmed that he was in New Orleans with defendant in 

April 2011. 

3 He later testified that he met Pon and used to see Pon and Huang together. 
9

Defendant testified that he was pulled over by the police shortly thereafter. The 

police searched his car. He claimed that the cash in his fanny pack in the trunk was from 

his gambling trip to New Orleans. He had planned to put $5,000 in the safe at the 35th 

Avenue flat, but after finding things missing, decided against putting it there. Most of the 

gift cards in his pack were gifts from casinos. 

Defendant said that he rented the storage unit because Huang asked him to do so. 

He did not know how she planned to use it. He denied knowing Leo Chang and claimed 

he had never seen the DS Gardens business card. He also did not recognize the piece of 

paper with addresses, dollar amounts and phone numbers that was found in the car. He 

testified that Huang probably placed the Medi-Cal denial letter in the car. 

Defendant further testified that he did not see the vacuum-sealed bag in the car but 

acknowledged in court that it had a strong odor. He admitted that he had lied to the 

police when he denied breaking into the Valleywood house. He claimed that he was in 

shock after seeing the marijuana growing in the Valleywood house. 

Defendant testified that he had never been to the Exeter house. Of the items found 

near or in Huang’s purse at the Exeter house, he testified that he gave the parking tickets 

to Huang to pay because she had incurred them. He did not recognize the handwritten 

paper with numbers and names on it or the Cache Creek casino resort papers. He claimed 

that he began to suspect Huang was involved in something illegal when the police told 

him what was in the storage unit. He testified that he was not in a relationship with 

Huang, but could not say when his relationship with her ended. He said they were 

“family” because of the children. 

Huang testified that she dated defendant for about a year in 2008 and 2009 and 

they had an on and off relationship. In April 2011, she was living with defendant at the 

35th Avenue flat in San Francisco. She used defendant’s cars to get around. 

When asked about the items found in the trunk of the BMW upon defendant’s 

arrest, Huang testified that the Bounce sheets and dust masks belonged to her and that 

some of the clothing belonged to her children or to her friends. She said that she allowed 
10

her friends to use the car. These friends included Virginia Pon, Leo Chang, and Yueri 

Wu. She did not know how the DS Gardens business card got inside the BMW. 

Huang admitted that the purse found at the Exeter house was hers. She recognized 

the Cache Creek Casino Resort card and the keys to the 35th Avenue home. She, 

however, did not know how her purse got to the Exeter house. She claimed that she had 

never been there. She did not know when she lost it. 

Huang testified that she asked defendant to rent a storage unit for Pon. She said 

that Wong and Wu moved things into the storage unit for Pon. Wu was Huang’s

boyfriend for a few months and he was the father of her second child. She testified that 

defendant supported her between 2008 and April 2011, and that she also received 

financial support from her family during that time. 

Huang did not know that Chang had a house on Exeter Drive in San Bruno; she 

thought he lived in San Francisco. Huang was impeached by prior testimony in which 

she said she did not know Chang. 

Huang was not aware of the vacuum-sealed bag found in the BMW. She did not 

know the smell of marijuana. She did not know that there was a large scale marijuana 

growing operation inside Pon’s house. Initially, she claimed that she had never been to 

the Valleywood house. She later testified that she had been in the kitchen of the house 

once or twice, but did not notice any bright lights or strong smells. She did not know 

Pon’s current whereabouts. Nor did she have an address for Chang. 

Huang testified that she did not owe defendant anything even though she 

acknowledged that he paid her rent at the 35th Avenue residence. She admitted that she 

took some jewelry from the safe at the 35th Avenue home and that she pawned it in 

Oakland for $10,000. 

II. DISCUSSION

Defendant contends that the trial court violated his Fifth Amendment right to 

remain silent by relying on his lack of remorse in denying probation. 

At the sentencing hearing, defense counsel argued for probation, asserting that 

defendant had no criminal history, was able to comply with the terms of probation, was 
11

remorseful, and had a great deal of support in the community. Defense counsel further 

argued that the facts relating to the crime also supported probation. The prosecutor 

countered that the court should consider defendant’s attitude toward the crime in 

determining whether to grant probation, and that while defendant had come close to 

admitting liability for the crime by stating in his letter to the court that he regretted the 

things that transpired and the choices he made culminating in his arrest, he had not 

admitted the crime. 

The court agreed with the prosecutor and while acknowledging some of the good 

things defendant had done in his life, the court said that his friends and family did not 

know the other side of defendant: “During the course of this trial I was introduced to 

another Kenny Kong. The fact that his friends and family are not aware of that Kenny 

Kong in no way diminishes the fact that that Kenny Kong does, in fact, exist as 

determined by a jury of his peers in this particular case. [¶] Not once has Kenny Kong 

acknowledged responsibility for the wrongdoing that took place in this particular case. 

My review of all of the documentation that I’ve been presented with would seem to 

indicate that Kenny Kong is still denying any responsibility and any participation in the 

events which led to his conviction on three felony charges. That’s troubling. And that is 

not someone that this Court thinks is necessarily worthy of the leniency and the 

consideration that is urged upon this Court by those individuals so intimately familiar 

with the other Kenny Kong.” 

Defense counsel, in turn, argued that defendant “has exercised his right to a jury 

trial twice and testified at both jury trials, and I was present at both. Ms. Allhister 

[deputy district attorney] was present at both, and he has been consistent in his—in his 

discussion. He opened himself up to cross-examination twice. He has been consistent, 

and for him to now come to this Court and completely disavow anything he previously 

said, I can’t ask him to do that, and I hope that he wouldn’t do that because I—because 

simply because that’s what the Court and the parties obviously want to hear. It would be 

easy for him to do that, but I don’t know if that would be the truth. [¶] And I don’t—

I’ve struggled with this. And I think that—I think that there has to be a place for 
12

somebody to be sentenced that exercises their right to a jury trial and testifies, and I don’t 

think there was any specific finding that he was untruthful during his testimony. [¶] But 

the facts of the case, [and] the evidence of the case were circumstantial, and the jury 

seemed to find that the circumstantial evidence was enough and we are—I have accepted 

that. [¶] I am having trouble still coming to grips with that, but in my professional career 

I’m trying to accept it. Mr. Kong is doing the same. And I just ask the Court not to use 

the fact that he has maintained his innocence against him and not to punish him because 

of that. . . .” The court responded that it had not found defendant to be truthful during his 

testimony and stated, “this Court is not in the business of punishing anyone for exercising 

their right to a jury trial, but this Court is a steadfast believer in someone sticking to the 

oath that they take before they do so testify.” It denied probation, stating: “You’ve 

expressed no remorse whatsoever for your behavior; you’re an active participant in the 

commission of the offense; you have yet to acknowledge participation in the offense; and 

you have not accepted responsibility for your role in the offense. Instead, you continue to 

blame others for everything that transpired . . . .” 

Defendant contends that the court’s comments implicated his Fifth Amendment 

right against self incrimination.4 We agree that a defendant retains the right to remain 

silent at sentencing. (Mitchell v. United States (1999) 526 U.S. 314, 328;5People v. 

Coleman (1969) 71 Cal.2d 1159, 1168, overruled on other grounds in Garcia v. Superior 

Court (1997) 14 Cal.4th 953, 966, fn. 6.). As the Attorney General explains, however, 

defendant has not cited any federal case in which the court’s consideration of defendant’s 

 

4

The Attorney General argues that defendant has forfeited this issue on appeal 

because his defense counsel did not object to the court’s reasons for denying probation on 

Fifth Amendment grounds. (See People v. Scott (1994) 9 Cal.4th 331, 353.) Although 

defense counsel did not explicitly state the Fifth Amendment as the reason for 

defendant’s insistence on maintaining his innocence, we believe defense counsel’s 

comments adequately raised the issue of defendant’s right to remain silent. Even if 

counsel’s comments were lacking, we address the issue on the merits to obviate a claim 

that defense counsel was incompetent.

5

The Mitchell court did not consider “[w]hether silence bears upon the 

determination of a lack of remorse . . . .” in sentencing issues. (Id. at p. 330.) 
13

lack of remorse in denying probation was found to violate the Fifth Amendment. (See 

United States v. Caro (4th Cir. 2010) 597 F.3d 608, 630–631 (Caro) [holding that 

defendant’s silence cannot be considered in determining lack of remorse as an 

aggravating factor in sentencing but noting that circuit courts are divided on the issue]; 

United States v. Safirstein (9th Cir. 1987) 827 F.2d 1380, 1388 (Safirstein) [court may 

not penalize a defendant for exercising his privilege against self-incrimination by 

enhancing his sentence based upon his failure to cooperate by implicating others or to 

admit guilt to uncharged crimes].) These courts were not concerned with considering a 

defendant’s lack of remorse—a factor relating to a defendant’s character—in deciding 

whether to grant or deny probation. (See Cal. Rules of Court, rule 4.414(b)(7).) Rather, 

they were concerned with whether remorse bore on imposing a sentence enhancement. 

(Caro, supra, at pp. 630–631 [death sentence]; Safirstein, supra, at pp. 1384–1389 

[consecutive maximum terms].) But whether a defendant is remorseful is a proper 

consideration for the court in making its decision to grant or deny probation (Cal. Rules 

of Court, rule 4.414(b)(7)) “unless the defendant has denied guilt and the evidence of 

guilt is conflicting.”

6

(People v. Holguin (1989) 213 Cal.App.3d 1308, 1319.)

Defendant asserts that the evidence here was circumstantial and contested and thus 

the court abused its discretion by denying probation on the ground that defendant lacked 

remorse. The evidence, though largely circumstantial, overwhelmingly established 

defendant’s guilt. The evidence not only linked defendant to the Exeter house, where a 

large marijuana grow operation was underway, but also to the storage unit which 

contained many of the same types of items used at the Exeter house. Documents 

 

6

The federal sentencing guidelines similarly allow a sentence reduction when a 

defendant shows remorse and accepts responsibility for his actions. (See United States v. 

Mikos (7th Cir. 2008) 539 F.3d 706, 718 [citing United States Sentencing Guidelines

§ 3E1.1 (18 U.S.C.S. Appx. § 3E1.1), and recognizing that courts consider failure to 

accept responsibility inasmuch as the guidelines permit courts to give lower sentences to 

persons who confess and show remorse]; United States v. Gordon (4th Cir. 1990) 

895 F.2d 932, 936–937 [“a defendant is not penalized for failing to accept responsibility. 

Rather, acceptance of responsibility is a mitigating factor available under appropriate 

circumstances”].)
14

connecting defendant to the Exeter house were found in both the house and in 

defendant’s BMW. Further, defendant had rented the storage unit just a week before the 

Exeter house was sold in a foreclosure sale, and the jury could very well have inferred, as 

the People argued below, that defendant was in the process of moving the grow operation 

to the storage unit when the Exeter house was discovered. The evidence found in 

defendant’s car also provided evidence of his participation in the grow operation. Along 

with the storage agreement in his name for the storage unit, the police found a notice 

addressed to Leo Chang at the Exeter house, a vacuum-sealed bag with a strong odor of 

marijuana, and additional items that are used in a marijuana grow operation including the 

Bounce fabric softener sheets, a vacuum, dust masks, and large amounts of cash. And, 

defendant was linked to the Valleywood house, where another grow operation was in 

place, and lied to police about having been there on the evening of his arrest. 

Finally, as the court found, defendant’s testimony as well as that of Huang, who 

sought to corroborate defendant’s story, lacked credibility. For example, their story that 

they rented the storage unit for Pon, Huang’s friend, was implausible. Defendant’s name 

was on the contract, he knew the code for the unit, and he admitted he paid for it and was 

never reimbursed. He rented the unit in San Francisco even though Pon lived in San 

Bruno. Upon his arrest, he refused to tell the police what was in the unit. Defendant 

initially claimed that he had never met Pon, but later testified that he met her and saw her 

with Huang. He had not noticed the vacuum-sealed bag found in his car even though it 

had a strong odor of marijuana. He could not account for how the incriminating items 

found in his car came to be there. Further, defendant claimed that he did not know Leo 

Chang even though a delivery notice addressed to Chang was found in his car.7 As the 

court found, “I’ve seen a lot of witnesses testify in court, and I’ve been called upon to 

judge the credibility of a lot of witnesses that testify in court, and I will say in all honesty 

there’s no question in my mind that Mr. Kong was not truthful when he testified in this 

 

7 Huang initially testified that she did not know Chang, but later acknowledged 

that she knew him and allowed him to use defendant’s BMW. 
15

courtroom, and I think that was born [sic] out by the verdict that the jury rendered.” The 

jury had compelling evidence before it on which to rest its verdict. On this record, the 

trial court did not abuse its discretion in considering defendant’s lack of remorse in 

denying probation. 

Defendant next contends that the trial court’s order requiring him to pay PG&E 

$156,977 in restitution exceeded the maximum amount of restitution authorized by the 

jury’s verdict and thus violated his Sixth Amendment right to a jury trial under Apprendi 

v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny. In Apprendi, the United 

States Supreme Court held that a defendant is entitled to have a jury determine any fact 

that increases the penalty for a crime beyond the prescribed statutory maximum. (Id. at 

pp. 489–490.) 

Citing Southern Union Co. v. United States (2012) 132 S.Ct. 2344, 2350 (Southern 

Union), defendant contends that the restitution awards are tantamount to criminal fines 

and hence a jury finding is required to determine the fine’s maximum amount in order to 

comply with Apprendi. In Southern Union, the United States Supreme Court held that 

Apprendi applies to the imposition of criminal fines. There, the defendant company was 

convicted of an environmental offense which provided for a maximum fine of $50,000 

for each day the relevant statute was violated. (Id. at p. 2349.) The court determined the 

number of days the statute was violated as the question had not been submitted to the 

jury. (Ibid.) The United States Supreme Court reversed, holding that the trial court’s 

finding violated Apprendi. (Id. at p. 2357.) It explained: “Apprendi’s ‘core concern’ is 

to reserve to the jury ‘the determination of facts that warrant punishment for a specific 

statutory offense.’ [Citation.] That concerns applies whether the sentence is a criminal 

fine or imprisonment or death. Criminal fines, like these other forms of punishment, are 

penalties inflicted by the sovereign for the commission of offenses.” (Southern Union, 

supra, at p. 2350.) 

Defendant’s reliance on Southern Union is misplaced. California courts have 

uniformly rejected the argument that the Sixth Amendment right to a jury trial applies to 

a restitution hearing (see People v. Chappelone (2010) 183 Cal.App.4th 1159, 1183–
16

1184, and cases cited) and have concluded that victim restitution does not constitute an 

increase in punishment. (People v. Millard (2009) 175 Cal.App.4th 7, 35–36 [primary 

purpose of victim restitution is to provide victim with compensation for victim’s 

injuries]; People v. Harvest (2000) 84 Cal.App.4th 641, 649 [victim restitution is a civil 

remedy rather than a criminal punishment].) In Millard, the court specifically rejected 

defendant’s contention that he is entitled to a jury trial on the issue of restitution. “Penal 

Code section 1202.4’s requirement that a trial court issue an order providing for full 

restitution of a victim’s economic losses does not constitute a sentencing choice by the 

trial court. Rather, because that statute requires the court to award the victim full 

restitution, the court’s determination of that amount in a restitution hearing by a 

preponderance of the evidence does not involve a defendant’s Sixth Amendment right to 

a jury or proof beyond a reasonable doubt.” (Id. at p. 36.) We agree with the Millard 

court’s analysis and therefore reject defendant’s argument.8 

III. DISPOSITION

The judgment is affirmed.

 

8 Defendant also cites Paroline v. United States (2014) 134 S.Ct. 1710 in support 

of his argument that restitution is a criminal punishment. Paroline addressed a victim’s 

entitlement to restitution under title 18 United States Code section 2259, a statute 

addressing restitution for victims of child pornography. It does not contend with the 

question of whether the Sixth Amendment right to a jury trial applies to restitution orders. 
17

_________________________

Rivera, J.

We concur:

_________________________

Ruvolo, P. J.

_________________________

Reardon, J.