Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF07-3042
HULL, J.Defendant pleaded guilty to possession of methamphetamine and possession of drug paraphernalia, and a jury convicted him of grand theft and attempted petty theft. (Health & Saf. Code, §§ 11377, subd. (a), 11364; Pen. Code, §§ 487, subd. (a), 664.) Defendant admitted a prior prison term allegation. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced defendant to a total of four years eight months in prison, and defendant timely filed this appeal.
Defendant contends the trial court failed to instruct the jury on the difference between grand and petty theft as to one count, and improperly allowed the prosecutor to impeach him with a prior theft-related conviction. We affirm the judgment.
Facts and Proceedings
Sutter County Sheriff Deputy Doug Hadley testified that at about 9:00 p.m. on October 22, 2007, he was on patrol on Highway 113 when he saw “brake lights activate on a vehicle that had no lights on parked off of the roadway.” He drove about 30 yards across a canal running parallel to the highway. He saw a “GMC Jimmy” about 30 yards down a dirt road bordered by the canal on one side and a rice field on the other. The road was too narrow for the vehicle to turn around, and because it was facing him, it either had to have backed the 30 yards down the dirt road “or gone all the way around which is an unknown distance to me. Very long.” He was not even sure if there was other access to that dirt road. Although the rice field was not flooded, he looked for tire tracks but did not find any, and the weeds along the edge of the field were undisturbed. He turned on his spotlight and saw two people, one standing behind the vehicle and one about 10 yards away. The man behind the vehicle was defendant, who “immediately ducked down behind” the truck when Deputy Hadley turned on his spotlight.
When approached, defendant said he was looking for a gas can in the back of his truck because he was out of gas. There was a gas can behind the bench seat of the truck on the passenger side, although defendant had been looking in the bed of the truck on the driver’s side. Deputy Hadley saw the gas gauge registered “just below a quarter tank.”
Hadley saw “a large industrial pump” directly beside the truck, on a structure in the middle of the canal, with a catwalk leading to the dirt access road. He also saw “[d]irectly below the tow package of the truck there was a heavy grade metal chain on the ground.” The chain led into the canal and to the power box of the structure holding the pump, and “was wrapped around the pipes containing all the metal wires that was tied off.” The piping ran from a power pole to the structure holding the pump.
At about the time Deputy Hadley found the chain attached to the pipe, his partner, Deputy Gwinnup, told him he found a glass pipe on the dashboard of the truck, which led to the discovery of a baggie of methamphetamine on the floorboard. Deputy Hadley also found small wire clippers in the truck, which he thought would have been able to cut the wires. On the passenger seat, he found nine large copper fuses “used for large industrial grade electronics.” He examined the electrical panels on the pump in the canal and found “many of the wires inside the electrical panels had been cut and there were nine total empty breaker switches or slots where the fuses fit.” The two different sizes of fuses found in the truck “both matched different sizes of grooves in the electrical panels.”
Without objection, Deputy Hadley gave the opinion that defendant had removed the fuses and cut the wires “and what he was intending to do was tie the chain from the pipe containing the wires to his tow package and pull the pipe out. And because the wires already [had] been preclipped he would be able to thread the wires directly out of the pipe and retrieve the copper from inside of the wire.”
Richard Webb testified he was the operations manager for the Sutter Mutual Water Company, where he had worked for about 35 years. He was called out that night and verified the pump station was owned by the water company. It was “one of many” the company owns in the area, consisting of “a double set of electric motors, 440 [volts] that moves water back into the canal.” Nine large fuses were missing, from three different areas of the pump station. Some of the wiring had been freshly cut. A total of 180 feet of copper wire could have been taken from the station, and people steal such wire to sell at recycling businesses; the water company had been “hit quite a few times” by copper thieves.
Webb testified that one end of the chain “was hooked up to a conduit [pipe] and the other end was hooked up to a hitch on a truck.” The fuses found in the truck matched the ones missing from the panels. He testified the fuses were worth between $100 and $150 each, testimony we describe in more detail later. He testified even small pliers or wire cutters could cut the wire at the pump station, because copper is soft. Webb also testified the pump had not been used in several years, but it was checked every couple of weeks or so, and he personally had checked it within two or three months before. The electrical company, “PG&E,” had pulled out the meter because the pump was not in current operation.
Defendant testified he was giving a ride to a man named “Castro” when he started to run out of gas. The gas gauge was not reliable. He drove on the dirt road, turned around and stopped, and began looking for a hose to use with his gas can. He saw Castro “messing around” and putting something in the truck, and told Castro to get it out of his truck because he did not want to be arrested for having stolen property. As he walked to the back of his truck, the peace officers turned on the spotlight. Defendant testified that at the jail he told Castro to take responsibility for the fuses, Castro agreed to do so and had already pleaded guilty. The chain was not hooked up to his truck, as Webb had testified, and the chain was not his. Defendant was innocent and not a thief. He conceded he had a 1999 conviction for assault with a deadly weapon, a felony, arising from a bar fight. He also had a 1992 conviction for receiving stolen property, a felony.
The jury convicted defendant of grand theft for stealing the fuses (count 1) and attempted petty theft for trying to steal the wire (count 2).
Discussion
I
Lesser Offense
Defendant contends that as to count 1, charging grand theft of the fuses, the trial court should have instructed the jury on the lesser offense of petty theft, because the jury might have found the fuses were worth less than $400.
It appears that the trial court did instruct on petty theft. The court instructed that if the jury found defendant “committed a theft or an attempted theft,” it had to decide between grand and petty theft (or attempted theft), based on whether the property was worth more than $400. (CALCRIM No. 1801.) The prosecutor acknowledged that he had to prove the value of the fuses was over $400, and argued to the jury that Webb’s testimony so showed. But because the trial court did not explicitly instruct about a lesser offense as to count 1, and because the jury was not given a verdict form for petty theft as to count 1, for purposes of this appeal, we consider defendant’s contention as framed.
We agree with the People that no substantial evidence supported the petty theft for count 1, and therefore the trial court properly refrained from instructing thereon.
A trial court must instruct “on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.” (People v. Breverman (1998) 19 Cal.4th 142, 154.) But “[s]uch instructions are required only where there is ‘substantial evidence’ from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense.” (People v. DePriest (2007) 42 Cal.4th 1, 50.) “Substantial evidence is ‘evidence which is reasonable, credible, and of solid value[.]’” (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.)
In this case, there is no substantial evidence that the nine fuses were worth less than $400. The only evidence of value came from Webb’s testimony, as follows:
“Q. Do you recall or do you know the value of those fuses that were missing from the fuse boxes?
“A. About close to a hundred dollars, I guess.
“Q. A hundred dollars for each missing fuse?
“A. They could run 150. Them prices go up.
“Q. And you said how many fuses were missing total?
“A. Nine.”
A jury is free to reject even uncontradicted testimony, if it does not act arbitrarily. (Hicks v. Reis (1943) 21 Cal.2d 654, 659-660.) But there was no basis in this record for the jury to conclude the fuses were worth less than $400. Although that particular pump had not been used for several years, it was regularly inspected and not defunct, as appellate counsel implies in an effort to discredit the value of the fuses themselves. As for that value, although “close to a hundred dollars, I guess” is somewhat vague, the fact there were nine fuses missing, coupled with the testimony that the value of each could be up to $150, means that even if the jury had some doubt about the exact cost, there was no basis to find they were worth less than $400. That the jury might have speculated and concluded the value was under $400 does not qualify as substantial evidence that the value was under $400. (See People v. DePriest, supra, 42 Cal.4th at p. 51; People v. Duncan (1991) 53 Cal.3d 955, 970-971 [speculation insufficient].)
For the same reason, it is not reasonably probable that defendant would have obtained a better result had the trial court supplied an appropriate verdict form offering the jury the lesser option of petty theft as to count 1. (See People v. Ledesma (2006) 39 Cal.4th 641, 716.)
II
The Prior Conviction
The minutes show that in response to the People’s in limine motion, the trial court tentatively precluded the prosecution from impeaching defendant with a 1992 conviction for knowing receipt of stolen property (Pen. Code, § 496), but allowed the prosecution to impeach him with a 1999 conviction for assault with a deadly weapon (id., 245, subd. (a)(1)). Before defendant testified, the parties discussed the ruling and the trial court confirmed its tentative ruling excluding the receiving conviction.
On direct examination, after defendant had blamed Castro for the crimes, defense counsel asked “[s]o as you sit here, you’re an innocent man; is that correct, of this charge? [¶] A. Of the stealing. I am not a thief.” Defendant then testified he was convicted of a felony in 1999, arising from a bar fight. The defense then rested.
The trial court called a recess and the trial court, the prosecutor, and defense counsel agreed that defendant had opened the door to admission of his conviction for knowing receipt of stolen property. The trial court allowed defense counsel to reopen to ask defendant about that conviction, and thus soften the blow, and defendant testified he had a 1992 conviction for receiving stolen property. On cross-examination the prosecutor had defendant clarify that the “bar fight” conviction was for assault with a deadly weapon, and the receiving conviction was a felony.
Although the admissibility of this conviction was generally addressed at the in limine stage, defendant’s testimony that he was not a thief changed the admissibility calculus and defense counsel not only did not lodge an objection (Evid. Code, § 353, subd. (a)), defense counsel agreed that defendant opened the door to admission of the conviction. Defendant painted himself as a person who does not steal as a matter of character, and the prosecution was entitled to introduce evidence to the contrary.
Defendant contends the evidence he received stolen property does not tend to disprove his testimony that he was not a thief. We disagree. “Although it is not a specific intent crime, a necessary element of the offense of receiving stolen property is actual knowledge of the stolen character of the property. [Citation.] One who unlawfully acts in disregard for the property rights of others, whether known or unknown, demonstrates moral laxity and to some degree a ‘readiness to do evil.’” (People v. Rodriguez (1986) 177 Cal.App.3d 174, 179.) Although the fact defendant had such a prior does not technically mean he is a “thief,” contrary to his testimony, it does mean he acted unlawfully with regard to the property of others, which he knew was stolen. That was relevant to disprove the gist of defendant’s character testimony.
Further, defendant’s story was wholly implausible on its face, and he was also impeached with a felony assault conviction. It is not reasonably probable he would have achieved a better result had the receiving conviction, largely cumulative impeachment, been excluded. (See People v. Zapien (1993) 4 Cal.4th 929, 983-984.)
Defendant appears to argue that his trial counsel was incompetent for not objecting to “the prosecution’s impeachment questioning” and cites the page in the reporter’s transcript where defendant said he was not a thief. If appellate counsel means trial counsel should not have conceded that defendant’s unexpected testimony on direct examination by defense counsel opened the door to further impeachment, it is evident that defendant, indeed, opened the door, and it was not error for defense counsel to concede the fact, and seek to soften the blow by reopening, which the trial court allowed. Further, if trial counsel erred, any such error was harmless for the reasons we have just stated. Accordingly, defendant cannot establish prejudice, a necessary component of his claim of incompetence of counsel. (See People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467.)
Disposition
The judgment is affirmed.
We concur: BLEASE, Acting P. J., BUTZ, J.