1

Filed 4/15/14 P. v. Yip CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,

Plaintiff and Respondent,

v.

KA CHUNG YIP,

Defendant and Appellant.

 A133595

 (San Mateo County

 Super. Ct. No. SC072068C)

Defendant Ka Chung Yip was convicted by a jury of unlawfully cultivating 

marijuana, possessing marijuana for sale, and stealing utility services. On appeal, he 

contends the trial court erred in failing to suppress evidence obtained during a traffic 

stop. He also contends the evidence was insufficient to support his conviction for utility 

services theft premised upon the existence of an electric meter bypass at a residence 

housing a marijuana grow operation. Described by the prosecutor as “primarily labor” in 

the marijuana grow operation, defendant argues he did not control the operation or have 

any reason to know that an electric meter had been bypassed. We agree that the evidence 

was insufficient to support defendant’s conviction for theft of utility services. 

Accordingly, we reverse that conviction but otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2008, a PG&E employee responded to a report of an electrical 

problem in Daly City. The employee discovered that an electrical wire leading to two 

houses had melted. The employee’s investigation led him to suspect that a meter bypass 

was in place at 61 Rockford Avenue (61 Rockford). A bypass diverts electricity around 
2

the meter and allows the customer to receive electricity without charge. In the 

employee’s experience, bypasses are often found at houses being used for cultivating 

marijuana. The employee reported his suspicion that a bypass was in place to his 

supervisor at PG&E. 

In early 2009, the San Mateo County Narcotics Task Force (Narcotics Task Force) 

commenced an investigation of 61 Rockford. The lead investigator on the case traveled 

to 61 Rockford roughly once every two to three weeks from January until June 2009. An 

officer who was in the vicinity of 61 Rockford in January 2009 smelled a strong odor of 

marijuana emanating from the residence and heard a buzzing or humming sound coming 

from inside the house. A buzzing or humming sound is commonly associated with 

marijuana grow operations due to the use of fans inside of the home. Later in January 

2009, officers conducted a traffic stop of a vehicle leaving 61 Rockford. The driver was 

identified as Mon Chan. A strong odor of fresh marijuana was coming from both Chan 

and the vehicle. Police found $4,500 in cash on Chan. The officer released Chan after 

the traffic stop and passed along the information he had learned to the Narcotics Task 

Force. 

San Mateo County Sheriff’s Deputy Daniel Guiney, a member of the Narcotics 

Task Force, participated in the investigation of 61 Rockford and occasionally drove by 

that address in early 2009. On April 28, 2009, he observed a commercial van backed into 

the driveway at 61 Rockford. Two men placed black plastic garbage bags into the back 

of the van before driving away. Deputy Guiney followed the van to a waste management 

site in Alameda County. He waited outside the waste site for about 10 to 15 minutes until 

the van left. He followed the van back to Daly City and saw it stop at a shopping center. 

While the van was at the shopping center, Deputy Guiney arranged for the Daly City 

police to conduct a traffic stop of the van. 

A Daly City police officer conducted a traffic stop after the van left the shopping 

center. Defendant was driving the van but did not have a driver’s license in his 

possession. The passenger identified himself as Menh Voong and provided 
3

identification. The officer cited defendant for driving without a license and passed along 

the information about the van’s occupants to Deputy Guiney. 

After the traffic stop concluded, Deputy Guiney continued following the van and 

observed it returning to 61 Rockford. There, defendant and Voong loaded approximately 

10 black plastic garbage bags into the van. The van then returned to the same waste 

management site in Alameda County that it had traveled to earlier. On this occasion, 

Deputy Guiney followed the van inside the facility and watched defendant and Voong 

place black garbage bags in an area behind the van. Deputy Guiney did not follow the 

van after it left but instead opened up three or four of the plastic garbage bags that were 

left by defendant and Voong. The bags Deputy Guiney opened contained waste material 

associated with marijuana cultivation, including wet or damp “Grodan” growing cubes

that allow marijuana roots to spread, mylar paper, tape, hoses, soil, and empty plastic 

nutrient bottles. In the deputy’s experience, all of these materials were consistent with 

waste produced in marijuana cultivation. 

On June 9, 2009, members of the Narcotics Task Force were conducting 

surveillance of 61 Rockford beginning at approximately 5:45 p.m. A white van was 

parked in the driveway. A Honda arrived at the house at approximately 7:00 or 7:30 p.m. 

At about this time, the officers decided to execute a search warrant for 61 Rockford. At 

around 9:00 p.m., the white van drove away from 61 Rockford. About 10 to 15 minutes 

later, the Honda left and a Toyota drove out of the garage and left as well. 

San Mateo County Sheriff’s Deputy Leroy O’Laughlin, who was part of the 

surveillance effort at 61 Rockford, coordinated with Daly City police to stop the white 

van. After police stopped the van, O’Laughlin arrived at the scene and questioned 

defendant, who was driving the van. The van did not belong to defendant. Deputy 

O’Laughlin smelled a strong odor of marijuana coming from both defendant and the van. 

The strength of the odor led the deputy to conclude defendant had been tending marijuana 

plants. According to the deputy, simply being around marijuana is not enough to cause 

such a strong odor. Rather, making contact with marijuana, including cutting it, 

trimming it, or “something of that nature,” is what caused the strong smell. 
4

Deputy O’Laughlin removed defendant from the van and seized $728 in cash from 

either defendant’s wallet or his person. The deputy also seized three cell phones. One 

was on defendant and the other two were found between the seats. One of the cell phones 

was an “LG Net10,” a type of prepaid cell phone requiring no contract. The deputy 

described cell phones as a “tool in the trade” in the marijuana business, and stated that a 

seller may have multiple cell phones for different customers. 

Meanwhile, other police officers conducted traffic stops of the Honda and Toyota. 

Voong was the driver of the Honda. Deputy Guiney helped search the Honda and seized 

numerous items from Voong and the Honda, including two cell phones, two garage-door 

openers, and multiple key rings and keys. One of the cell phones was an LG Net 10. 

One of the garage-door openers operated the garage door at 61 Rockford. 

At approximately 1:00 a.m. on June 10, 2009, the Narcotics Task Force lead 

investigator arrived at 61 Rockford with a search warrant. The search of the premises 

revealed an extensive marijuana cultivation operation inside 61 Rockford. The 

combination living and dining area contained 126 marijuana plants along with lights, 

growing trays, tubs for liquid nutrients, and ventilation tubing. The room contained four 

600 watt lights and ten 1000 watt lights. A bedroom contained an additional 349 

marijuana plants that were either immature plants or germinating clippings. The room 

contained equipment similar to that in the living and dining area, including three 1000 

watt lights. In the kitchen, police found various containers in which marijuana was 

drying. The lead investigator estimated that the marijuana in the kitchen weighed about 

25 pounds, was almost ready to be sold, and had a value of approximately $2,000 to 

$3,000 per pound. Other rooms in the house contained material for cultivating marijuana. 

The electrical bypass was located in a cutout in the drywall hidden behind plastic 

film that had been used to cover the windows. Officers had to pull back the film in order 

to see the bypass. According to a PG&E employee, the current subscriber at 61 Rockford 

had initiated electrical service in September 2006. Based on the length of service and the 

number of lights in the house, the employee estimated PG&E’s loss as a result of the 

bypass at $79,004.71. The PG&E customer at 61 Rockford was identified as Elliot Ng. 
5

While police were searching 61 Rockford, other officers performed a search of 

Mon Chan’s home in Daly City. Chan was not home at the time but was apprehended in 

a van during the course of the search. The lead investigator searched Chan and his 

vehicle. He found $1,776 in cash in Chan’s pockets as well as another $5,000 in the van. 

Chan also had an LG Net10 cell phone. Inside the home officers encountered a woman 

identified as Kathy Hoang. It was determined that the deed to 61 Rockford was in the 

name of Cindy Hoang. Officers also found $9,421 in cash as well as an electronic money 

counter, a digital scale, and a plastic shopping bag containing a small amount of 

marijuana. 

The San Mateo County District Attorney filed a three-count information charging 

Chan, Voong, and defendant with unlawful cultivation of marijuana (Health & Saf. Code, 

§ 11358), possession of marijuana for sale (Health & Saf. Code, § 11359), and theft of 

utility services valued at more than $950 (Pen. Code, § 498, subd. (d)). As to the utility 

theft charge, the information contained a special allegation that the value of the stolen 

electricity exceeded $65,000. (Pen. Code, § 12022.6, subd. (a)(1).) 

Chan pleaded no contest to two counts of theft of utility services as charged in an 

amended information applicable only to him. In exchange for his plea, prosecutors 

dismissed the remaining charges against Chan. 

The case against Voong and defendant was tried before a jury. Defendant testified 

in his own defense at trial. He claimed to have visited 61 Rockford on three occasions. 

According to defendant, the first such visit was on April 28, 2009, when his friend, 

codefendant Voong, asked him to help dump some garbage. Defendant claimed he did 

not enter the residence at 61 Rockford and did not see or smell any marijuana on that 

occasion. The second time defendant visited 61 Rockford occurred sometime between 

April 28 and June 9, 2009. He went there to pick up Voong and give him a ride to The 

Home Depot to purchase wood. According to defendant, the third and final time he 

visited 61 Rockford was on the date of his arrest, June 9, 2009. He arrived at around 6:00 

p.m. He planned to go to dinner with Voong and then go drinking with a mutual friend. 
6

Defendant claimed he did not enter the residence and waited for Voong in the garage at 

61 Rockford for several hours until he finally departed to go to a restaurant. 

A plainclothes officer who detained defendant purportedly told defendant that he 

had seen defendant at the dump site and had a video of that event. Defendant did not 

understand the reference to “dump” and asked for an interpreter or attorney. The officers 

ignored his request, according to defendant. He was handcuffed and told he smelled of 

marijuana. At one point, he told the officers that he had been to a gas station earlier in 

the day on June 9. 

In rebuttal, the officer who detained defendant on the date of his arrest, Deputy 

O’Laughlin, testified that defendant “understood pretty well” their conversation. 

According to Deputy O’Laughlin, defendant never asked for an interpreter or counsel. 

Defendant was not handcuffed while the van was searched. When Deputy O’Laughlin 

asked defendant where he was coming from, defendant replied that he had been at a gas 

station. After the deputy told defendant he had just seen him leave 61 Rockford, 

defendant eventually admitted that he had been at that location. Although defendant 

initially denied knowing anything about marijuana at 61 Rockford, he ultimately admitted 

that there were marijuana plants in the house. According to Deputy O’Laughlin, he said 

nothing to defendant about a dump or a trash run. 

The jury found defendant and Voong guilty of unlawful cultivation of marijuana, 

possession of marijuana for sale, and theft of utility services. The jury returned a finding 

of “not true” as to the special allegation that the utility theft exceeded $65,000. 

The court suspended imposition of sentence and placed defendant on three years 

of supervised probation, with numerous conditions, including that he serve 90 days in 

county jail. This appeal followed. 

DISCUSSION

I. MOTION TO SUPPRESS EVIDENCE OBTAINED DURING TRAFFIC STOP

Defendant contends the trial court erred in denying a motion to suppress evidence 

obtained during the traffic stop conducted on April 28, 2009. The traffic stop of the van 

defendant was driving allowed officers to identify defendant and connect him to the 
7

marijuana-related waste that was disposed at a site in Alameda County. Defendant 

argues the police did not have reasonable suspicion to believe that the occupants of the 

van were engaged in criminal activity. Among other things, he contends the trial court 

based its decision on a mistaken factual assumption about the sequence of events leading 

to the traffic stop. He also asserts that the information about a marijuana grow operation 

at 61 Rockford was stale by the time the officers conducted the stop and there was no 

other basis to suspect that defendant was engaged in criminal activity merely because he 

was hauling garbage away from the residence. We reject these contentions for reasons 

we explain below.

A. Background

Before trial, Voong filed a motion to suppress evidence as well as a motion to 

dismiss the information. Voong claimed there was no warrant or lawful justification for 

his detention by police on April 28 and June 9, 2009. Defendant joined in codefendant 

Voong’s motions. 

At the hearing on the suppression motion, the parties stipulated that certain 

preliminary hearing testimony referred to in the prosecution’s opposition brief would be 

considered as part of the evidence before the court. 

The preliminary hearing testimony summarized by the prosecution established that 

a PG&E supervisor had notified the police in December 2008 that a large amount of 

power was being drawn by the residence at 61 Rockford. In January 2009 an officer 

observed that a front window at 61 Rockford was covered and had condensation inside. 

The officer knew based on his training and experience that windows on a house 

containing a marijuana grow operation are often covered to avoid detection and to help 

control the environment for the marijuana plants. The officer also explained that a 

marijuana grow operation generates heat and humidity. On the following day, the officer 

smelled the odor of marijuana and heard a constant humming or buzzing sound coming 

from 61 Rockford. The officer knew that commercial-sized fans were used to circulate 

the air at indoor marijuana grow operations. Another officer testified that he had 

observed condensation on one window at 61 Rockford and heard a buzzing or humming 
8

sound coming from the residence on January 27, 2009. An officer assigned to the 

Narcotics Task Force testified that he had observed blinds covering the windows and the 

strong smell of marijuana coming from inside 61 Rockford on several occasions between 

January and June 2009.

The preliminary hearing testimony of Deputy Guiney established that he saw a 

full-sized van backed into the driveway of 61 Rockford on April 28, 2009. He followed 

the van from Daly City to a waste management site in Alameda County. Deputy Guiney 

followed the van back to Daly City after it left the facility. He saw two Asian males load 

more garbage bags into the van and then drive away. He followed the van again to the 

same waste facility in Alameda County. Deputy Guiney searched through garbage bags 

left by Voong and defendant at the waste management site after the second trip to that 

facility. The bags contained waste associated with marijuana cultivation. As 

characterized in the prosecution’s opposition brief, the preliminary hearing testimony 

established that Deputy Guiney asked for a marked police car to conduct a traffic stop of 

the van after the second trip to the waste management facility. Similarly, in the statement 

of facts submitted by Voong in support of his motion to suppress, he stated that law 

enforcement conducted a traffic stop “[a]s the van was returning from the second 

trip . . . .” 

Despite the fact that both Voong’s motion to suppress and the prosecution’s 

opposition stated that the traffic stop was conducted after defendant and Voong returned 

from the second trip to the waste management facility, at the preliminary hearing Deputy 

Guiney testified that he “believed” the traffic stop was conducted after the first trip to the 

facility and before the second trip. Consequently, if Deputy Guiney’s recollection as 

expressed at the preliminary hearing was correct, the traffic stop was conducted before he

searched the bags left at the facility by defendant and Voong that contained evidence of 

marijuana cultivation. 

Additional testimony was offered at the suppression hearing. One officer testified 

that he smelled a strong odor of marijuana and had heard a humming sound consistent 

with indoor fans when he was outside 61 Rockford on January 7, 2009. Another officer 
9

testified that he stopped a vehicle that left 61 Rockford shortly after midnight on January 

19, 2009. The officer smelled the odor of marijuana from inside the car. A search of the 

vehicle resulted in the discovery of $4,500 in cash. 

Deputy Guiney also testified at the suppression hearing, although his testimony 

was limited because the prosecutor sought to avoid repeating questions asked at the 

preliminary hearing. Deputy Guiney testified that, as of April 28, 2009, he “was aware of 

an ongoing investigation of a potential marijuana indoor cultivation operation at 

61 Rockford.” He stated he followed the van that defendant was driving from Daly City 

across a bridge to a disposal site in Alameda County. The trip took approximately 30 

minutes. Although he mentioned that he asked police to stop the van after it returned to 

Daly City, he did not clarify whether the stop took place after he searched the garbage 

bags that were left in Alameda County.

In arguing that the stop was illegal, defense counsel did not explain why the 

evidence was insufficient to support a reasonable suspicion that defendant and Voong 

were engaged in criminal activity. Rather, the focus of the argument was on whether the 

officers properly limited the detention so as to quickly confirm or dispel their suspicion 

of illegal conduct. Defense counsel argued the stop was a “fishing expedition” that 

simply sought to identify the van’s occupants without inquiring about the marijuana grow 

operation. 

The trial court denied the motion to suppress, reasoning that the officer saw 

“evidence of criminal behavior in what he observed in the abandoned bags.” The court 

explained that “it’s entirely reasonable at that point to identify the persons in the van.” 

The court also rejected the claim that the scope of the detention was improper, 

concluding that “it was a limited stop simply for the purpose of . . . finding out their 

identifications with no effort to search the vehicle or the people further.” 
10

B. Analysis

Defendant contends the court’s factual findings are not supported by substantial 

evidence. He argues that the court erroneously concluded the traffic stop was ordered 

after Deputy Guiney searched garbage bags left by defendant and Voong that contained 

marijuana-related materials, when in fact the “record shows that this discovery took place 

after police stopped the van.” Further, he asserts that the evidence available to police 

was insufficient to justify the traffic stop because the evidence of a marijuana grow 

operation at 61 Rockford was several months old at the time of the stop, and the mere fact 

that defendant drove a large distance to dump debris was not suspicious absent evidence 

that there were closer alternatives for disposing of trash. 

Our review of the trial court’s suppression ruling is governed by well settled 

principles. “[W]e view the record in the light most favorable to the trial court’s ruling, 

deferring to those express or implied findings of fact supported by substantial evidence.” 

(People v. Jenkins (2000) 22 Cal.4th 900, 969.) “The trial court’s ruling may be affirmed 

if it was correct on any theory, even if we conclude the court was incorrect in its 

reasoning.” (People v. Durant (2012) 205 Cal.App.4th 57, 62.) Further, we may 

consider a new theory on appeal to support or defeat a suppression ruling if the evidence 

supporting the theory was fully developed at the time of the ruling. (Green v. Superior 

Court (1985) 40 Cal.3d 126, 137–138.)

“ ‘A detention is reasonable under the Fourth Amendment when the detaining 

officer can point to specific articulable facts that, considered in light of the totality of the 

circumstances, provide some objective manifestation that the person detained may be 

involved in criminal activity.’ ” (People v. Hernandez (2008) 45 Cal.4th 295, 299.) 

Here, defendant claims the evidence was insufficient to support the court’s 

conclusion that the discovery of marijuana-related debris justified the traffic stop. 

Defendant points to evidence suggesting that the stop was made before the evidence of 

marijuana cultivation activities was discovered by Deputy Guiney. The problem with 

defendant’s contentions on appeal is that they were not raised in the trial court. Further, 

at the time of the suppression hearing, even defense counsel seemed to believe that the 
11

stop was conducted after the second trip to the waste management facility and after 

Deputy Guiney had found evidence of marijuana cultivation. The written motion 

submitted by Voong, in which defendant joined, stated that the stop was made after the 

second trip. In addition, defense counsel stipulated to the prosecution’s summary of the 

preliminary hearing testimony, which clearly stated the stop was conducted after Deputy 

Guiney opened the garbage bags left by defendant and Voong. Indeed, during the 

suppression hearing, defendant’s counsel seemed to accept the sequence of events put 

forth by the prosecution. Instead of arguing that the stop was made before Deputy 

Guiney discovered the marijuana-related garbage left by defendant and Voong, 

defendant’s counsel contended there was no reason to suspect that defendant and Voong 

were involved in the marijuana grow operation because the items seen by the deputy were 

simply paraphernalia associated with a marijuana grow rather than actual marijuana. 

Under these circumstances, the court can hardly be faulted for adopting stipulated facts 

that both sides seemed to accept as true.1

In People v. Williams (1999) 20 Cal.4th 119, 130–131, the Supreme Court held 

that a defendant must specify the grounds to suppress evidence to properly preserve the 

issue for appeal. Once the prosecution has offered a justification for a warrantless search 

or seizure, a defendant must “present any arguments as to why that justification is 

inadequate.” (Id. at p. 130.) “[I]f defendants detect a critical gap in the prosecution’s 

proof or a flaw in its legal analysis, they must object on that basis to admission of the 

evidence or risk forfeiting the issue on appeal.” (Ibid.) “The degree of specificity that is 

appropriate will depend on the legal issue the defendant is raising and the surrounding 

circumstances. Defendants need only be specific enough to give the prosecution and the 

 

1

Further, contrary to defendant’s contention, there was not overwhelming evidence 

presented at the preliminary hearing to establish that the stop was conducted before the 

second trip to the waste facility. At most, Deputy Guiney expressed that he “believed” 

the stop was made after the first trip to the waste facility. It is not surprising that the 

parties seemed to be mistaken about the sequence of events, because Deputy Guiney 

testified about the entire sequence of events, including the second trip to the waste 

facility and the search of the garbage bags, before he mentioned that he ordered a traffic 

stop of the van. 
12

court reasonable notice. Defendants cannot, however, lay a trap for the prosecution by 

remaining completely silent until the appeal about issues the prosecution may have 

overlooked.” (Id. at pp. 130–131.)

In this case, defense counsel did not properly preserve the issue for appeal. The 

focus of the objection to the stop at the suppression hearing was the manner in which the 

officer conducted the detention, not the factual basis for conducting the stop in the first 

place. Not only did defense counsel fail to specify an objection to the prosecution’s 

factual basis for the stop, counsel actually agreed with that factual basis. Further, defense 

counsel did not argue or even suggest that the evidence of a marijuana grow operation 

was stale or that there was nothing suspicious about the distance defendant traveled to 

dispose of the marijuana-related debris. This lack of specificity deprived the prosecutor 

of an opportunity to present evidence or argument responding to defense counsel’s 

objections. With regard to the sequence of events that preceded the traffic stop, an 

objection would have allowed Deputy Guiney to clarify his testimony and would have 

permitted the prosecutor to respond to the issue. As for whether there was current 

information about a marijuana grow operation or whether it was suspicious for defendant 

to travel across the San Francisco Bay to dispose of garbage bags, an objection would 

have allowed the prosecution to present responsive evidence.2 Under the circumstances, 

defendant forfeited the claims he now raises on appeal for the first time.

 

2Notably, the prosecution was in a position to respond to these issues if they had 

been raised. In its opposition to the suppression motion, the prosecution made an offer of 

proof that an officer would testify that he observed conditions at 61 Rockford consistent 

with a marijuana grow operation in late March and mid-April 2009. The prosecution 

presumably would have offered this evidence at the suppression hearing if defendant had 

claimed there was no evidence of a marijuana grow operation at 61 Rockford after 

January 2009 until the date of the traffic stop in late April. Further, at trial an officer 

testified that a waste facility in San Mateo County was much closer to 61 Rockford than 

the waste facility in Alameda County where defendant traveled to dispose of garbage 

bags. 
13

Even if the issue were not forfeited, we would still reject defendant’s claim of

error. The trial court had before it evidence that the police were engaged in an ongoing 

investigation of 61 Rockford after January 2009. By its nature, a marijuana grow 

operation is not a short-lived event, such as a single drug sale. Absent some indication 

that conditions had changed at 61 Rockford, it was reasonable to assume that the house 

was still being used as a marijuana grow operation as of late April 2009. Further, the 

events observed by Deputy Guiney—including the removal of large numbers of garbage 

bags and the long distance traveled to dispose of them—constituted articulable facts that, 

considered together with the evidence of a marijuana grow operation at 61 Rockford, 

provided objective evidence that defendant may have been involved in criminal activity. 

These activities were suspicious regardless of what was contained in the garbage bags. 

Consequently, we conclude there was substantial evidence to support a conclusion the 

traffic stop was justified by a reasonable suspicion that defendant was engaged in 

criminal activity. The trial court properly denied the motion to suppress.

II. SUFFICIENCY OF THE EVIDENCE SUPPORTING THEFT OF UTILITY SERVICES

Defendant next contends there was insufficient evidence to support his conviction 

for theft of utility services in violation of Penal Code section 498, subdivision (d). As we 

explain, we agree with defendant.

In assessing a challenge to the sufficiency of the evidence, we “must determine 

‘whether, after viewing the evidence in the light most favorable to the prosecution, [any] 

rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.’ ” (People v. Davis (1995) 10 Cal.4th 463, 509.) “ ‘Substantial 

evidence’ is evidence which is ‘ “reasonable in nature, credible, and of solid value.” ’ ” 

(People v. Morgan (2007) 42 Cal.4th 593, 614.) We must “ ‘presume in support of the 

judgment the existence of every fact the trier could reasonably deduce from the 

evidence.’ ” (People v. Pensinger (1991) 52 Cal.3d 1210, 1237.)

Penal Code section 498 contains two essential elements to establish a theft of 

utility services. First, a defendant must have the intent either (1) to obtain utility services 

without paying the full charge, whether for himself or another, or (2) “to deprive any
14

utility of any part of the full lawful charge” for its services. (Pen. Code, § 498, subd. (b).) 

Second, acting with the requisite intent, the defendant must have “commit[ted], 

authoriz[ed], solicit[ed], aid[ed], or abet[ted]” one or more of the five acts listed in 

subdivision (b) of Penal Code section 498. The first four acts requires a specific action, 

such as diverting electricity, tampering with a meter or with property owned by a utility, 

or making a connection to utility services without the utility’s consent. (Pen. Code, 

§ 498, subd. (b)(1)–(b)(4).) There is no evidence that defendant either committed one of 

these acts or aided or abetted in their commission. Consequently, only the fifth theory of 

liability, set forth in Penal Code section 498, subdivision (b)(5), could apply to defendant. 

That subdivision provides for liability when, with the requisite intent, a person “[u]ses or 

receives the direct benefit of all or a portion of utility services with knowledge or reason 

to believe that the diversion, tampering, or unauthorized connection existed at the time of 

that use, or that the use or receipt was otherwise without the authorization or consent of 

the utility.” (Pen. Code, § 498, subd. (b)(5), italics added.)

The statute also permits an inference that there is a violation of Penal Code section 

498 when any meter on premises “controlled by the customer or by the person using or 

receiving the direct benefit of all or a portion of utility services obtained in violation of 

this section” has been “tampered with[] or bypassed so as to cause no measurement or 

inaccurate measurement of utility services.” (Pen. Code, § 498, subd. (c), italics added.)

Here, there was no evidence that defendant either knew electricity was being 

stolen or that he intended to steal electricity. There was nothing to suggest defendant 

installed the meter bypass, was aware of its existence, or had any reason to know that 

electricity was being used without charge. The evidence at trial was that the meter 

bypass was hidden from view. Officers had to look under plastic film used to cover the 

windows to even see the bypass. It was undisputed that the electrical service customer 

was Elliot Ng and that the deed to 61 Rockford was in the name of someone identified as 

Cindy Hoang. 

The People contend the jury could have reasonably inferred defendant was aware 

of the electrical bypass. The People reason as follows: “After all, the evidence showed 
15

that the house was filled with fans, light hoods, high-wattage lights, ballasts, ventilation 

tubes, dehumidifiers and filters. A member of a marijuana-growing conspiracy would 

know that the operation took vast amounts of electricity to operate, and that they were not 

paying for all of it.” 

We agree that someone in defendant’s position would have known or at least 

suspected the operation consumed a large amount of electricity. But it does not 

necessarily follow that someone in defendant’s position would have reason to know the 

electricity was being stolen. Defendant did not own 61 Rockford and was not the utility

customer at that address. He would not have any reason to know whether PG&E was 

charging the customer for the entire amount of electricity consumed at that address. 

Insofar as the People claim a participant in a marijuana grow operation would have 

reason to know that such operations steal electricity, they have failed to cite any evidence 

to support their claim. While it may be the case that a person who manages a marijuana 

grow operation would know or have reason to know that a meter bypass is in place, it is 

not necessarily the case that someone with a limited role in the operation would also have 

reason to know that the operation is stealing electricity. 

The evidence at trial did not establish that defendant had a significant role in the 

operation. To the contrary, the prosecutor effectively admitted that defendant’s role was 

limited. In closing argument, the prosecutor explained to the jury that a marijuana grow 

operation is a joint enterprise with “people who are principals and people who are 

players.” The prosecutor described Mon Chan as the “money guy” who was the target of 

the investigation. Chan was also described as a “maintenance guy too” who was 

“benefitting more than anybody else.” According to the prosecutor, “the distribution 

part, the sales part, the financing part, that definitely seems to be Mon Chan.” The 

prosecutor described codefendant Menh Voong as “control and maintenance.” Voong 

had control because he had the garage door opener that provided the only mode of access 

to the interior of 61 Rockford. As for defendant, the prosecutor stated, “Ka Yip seems to 

come in as primarily labor.” The prosecutor emphasized that defendant participated in 
16

“the maintenance aspect” of the operation. The prosecutor also stated it “is undisputed 

that Ka Yip did not have a key or garage door opener for 61 Rockford.” 

The People have failed to explain how someone with such a limited role in the 

operation should be charged with knowledge of the electrical bypass. Based upon the 

evidence presented at trial, there was insufficient evidence to support a finding that 

defendant knew or had reason to know of the electrical bypass.

Further, there was no evidence to support a finding that defendant intended to steal 

electricity. As support for this element of the offense, the People rely on the permissive 

inference allowed by subdivision (c) of Penal Code section 498. That subdivision of the 

statute permits an inference that a person intended to steal utility services if there was an 

electrical bypass present on the premises and the person who received the direct benefit 

of the services obtained by the bypass controlled the premises. (Pen. Code, § 498, 

subd. (c).) There is no dispute that there was an electrical bypass in place and that 

defendant effectively benefited from the bypass as a participant in the marijuana grow 

operation. The dispute is over whether defendant controlled the premises at 61 Rockford. 

Even the People acknowledge this is a “very close question.” 

Penal Code section 498, subdivision (a) defines certain terms used in the statute 

but does not define “control” as that term is used in subdivision (c). Control is defined as 

the “power or authority to guide or manage.” (Webster’s Collegiate Dict. (10th ed. 2001)

p. 252, col. 1.) In this case, there was no evidence that defendant guided or managed the 

marijuana grow operation. He was described as a simple laborer in the operation. 

Indeed, when he was arrested, he did not even have a key or garage door opener that 

would give him access to 61 Rockford. 

The People contend that defendant had control over 61 Rockford because he was 

part of a joint venture to grow and sell marijuana. According to the People, “[t]hat 

[defendant] was more than just a lowly hired hand with no authority over the venture is 

belied by his possession of the same contract-less cell phone in the possession of Voong 

and Chan.” Further, the People argue that the jury could have reasonably inferred that 
17

those involved a joint venture to cultivate marijuana “all have control over the location of 

the venture . . . .” We disagree.

Defendant’s possession of a prepaid cell phone without a contract does not support 

an inference that he had control over 61 Rockford. Moreover, contrary to the People’s 

characterization of the evidence, there was no evidence that such cell phones are a tool of 

the marijuana trade. Rather, the evidence was that cell phones in general are a tool of the 

trade. With regard to prepaid cell phones in particular, an officer testified that they are 

difficult to trace and can be easily replaced, but the officer did not state or suggest that 

the possession of a prepaid cell phone tends to show that the person who possesses the 

phone controls or directs a marijuana grow operation. 

Furthermore, the mere fact that defendant played a role in a marijuana grow

operation does not support an inference that he had control over the premises where the 

operation was conducted. One would not necessarily conclude that an employee has 

control over the premises where that employee works. In this case, the evidence simply 

does not support a conclusion that defendant was in a position to manage or direct what 

took place at 61 Rockford. Although the evidence may support a finding that defendant 

had some involvement in the marijuana grow operation, that conclusion does not 

necessarily support an inference that he intended to steal electricity or even had reason to 

know it was being stolen.

Accordingly, we conclude the evidence was insufficient to support defendant’s 

conviction for theft of utility services.3

 

3

In light of our conclusion, it is unnecessary to address defendant’s remaining 

contentions that the court erred in instructing the jury with the permissive inference in 

Penal Code section 498, subdivision (c), or that the prosecutor committed misconduct by 

misstating the law as it applies to the inference. 
18

DISPOSITION

The conviction for theft of utility services (Pen. Code, § 498, subd. (d)) as charged 

in count three of the information is reversed. In all other respects, the judgment is 

affirmed. The matter is remanded to the trial court for resentencing and further 

proceedings consistent with this opinion.

_________________________

McGuiness, P.J.

We concur:

_________________________

Siggins, J.

_________________________

Jenkins, J.