Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FBA800456, John B. Gibson, Judge.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Eric Swenson and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Richli, Acting P.J.
I. Introduction
Defendant Larry Lawrence Bernal was electrocuted when he tried to steal copper wire from an electrical substation
A jury convicted defendant of three charges: attempted grand theft of property; vandalism; and cutting a utility line. (Pen. Code, §§ 664/487, subd. (a); 594, subd. (b)(1); 591.) Defendant admitted two prior convictions. The court sentenced him to a total prison term of five years.
All further statutory references are to the Penal Code unless stated otherwise.
Defendant’s primary argument is that there was no substantial evidence defendant acted with an accomplice, meaning there was insufficient evidence to support his convictions on a theory of aiding and abetting. In a related argument, defendant contends the court wrongly instructed the jury. We reject these contentions and affirm the judgment.
II. Facts
On April 8, 2008, at 12:28 a.m., customers reported power fluctuations in the small desert town of Daggett near Barstow. Two minutes later, at 12:30 a.m., some residents of a trailer park, located one block from an Edison electrical substation, awoke to the sound of defendant screaming. Defendant, wearing gloves and black clothes, smelled of burned flesh and hair. His watch had melted to his arm.
Defendant was transported to a hospital by paramedics. He was in critical condition, having suffered extensive burns to his chest and arms and a burn to his toe, which was consistent with the exit site of an electrical injury.
When Edison’s employees investigated, they found that a hole had been cut in the perimeter fence. An open fuse on the primary 33,000 volt line that feeds the Daggett substation had caused the power fluctuation. The protective ground wires had been removed at a number of locations and contact with the primary line had caused the fuse to blow. About 100 feet, or 50 pounds, of ground wire, worth about $307, had been removed.
There was “splatter on the conductor between the bushings on the 33 transformers... and... blood on the concrete pad to the east of the 33.” “Splatter” is caused by a conductor melting and splattering particles. Splatter was found at other locations too.
The Edison company witness testified that what happened at the Daggett substation was caused by a person entering the station, removing the ground wires, and making contact between the phase and the ground. If a person had been physically thrown by the force of an electrical short circuit, he could have landed at the place where the blood was found.
The DNA samples the police took from the scene matched defendant’s DNA. The police did not find any cutting tools or other physical evidence at the site.
Before the April 8 incident, the substation had been inspected last on April 1.
The cost of repairs was between $1,500 and $2,000. The total value of copper wire at the station, including what was removed, was about $700.
III. Analysis
Defendant generally argues his convictions cannot stand because there was no evidence of an accomplice. He acknowledges, however, that he was electrocuted at the substation and, although there were 50 pounds of missing copper wire, no cutting tools were found.
The prosecution argued another person must have been acting with defendant and fled with the tools and the stolen wire after the accident. Defendant himself was too incapacitated by his injuries to escape.
We apply the usual standard of review, examining the record in the light most favorable to the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) We conclude substantial evidence demonstrates defendant aided and abetted the commission of the subject crimes. (People v. Snow (2003) 30 Cal.4th 43, 66; People v. Mitchell (1986) 183 Cal.App.3d 325, 329.)
A. The Unknown Accomplice
Defendant argues the prosecution’s theory that defendant worked with an accomplice was “created from the whole cloth of pure speculation.” (People v. Singleton (1987) 196 Cal.App.3d 488, 493.)
Defendant relies on two cases that are distinguishable. In Singleton, the defendant was convicted of transportation of cocaine and possession of cocaine for sale. Although the evidence showed the defendant was carrying cocaine stuffed in her boot, there was no evidence of possession for sale by her or anyone else. (People v. Singleton, supra, 196 Cal.App.3d at pp. 491 and 493.) In People v. Perez (2005) 35 Cal.4th 1219, 1223, 1227, the defendant possessed methamphetamine precursors for sale but there was no evidence to convict him of aiding and abetting a prospective buyer’s crime of possession with the intent to manufacture methamphetamine.
In contrast, in the present case, there was ample evidence defendant and an accomplice committed, or attempted to commit the charged offenses. After the perimeter fence was cut and 50 pounds of wire removed, defendant, dressed all in black, climbed on a transformer to remove more wire when he was electrocuted by the primary 33,000-volt line. In the absence of evidence of tools, wire, or a getaway car, the circumstantial evidence could cause a reasonable jury to conclude that defendant had an accomplice who escaped after defendant was injured. This is not a case in which there was no evidence whatsoever of an unknown accomplice. Although the accomplice could not be identified, he almost certainly existed. It was not possible for defendant to have acted alone.
B. Vandalism
Section 594 provides that every person who maliciously damages or destroys any real or personal property not his own is guilty of vandalism.
The information charged “the crime of VANDALISM OVER $400 DAMAGE... was committed by [defendant] who did unlawfully and maliciously... damage and destroy real and personal property, to wit, transformer substation, not his or her own, belonging to Southern California Edison, the amount of said damage being over $400.00.”
The court instructed the jury, based on CALCRIM No. 2900, that “the People must prove that, one, the defendant maliciously damaged and destroyed personal property” worth $400 or more. The court omitted a reference to real property that was contained in section 594, the information, and CALCRIM No. 2900.
Defendant argues there was not substantial evidence that he damaged real property. But the record shows that defendant and his accomplice damaged the fence, the electrical wires, and the substation, causing damages greater than $400. Fences and electrical wiring are considered real, not personal, property. (§ 7; People v. Brown (1965) 236 Cal.App.2d Supp. 915, 917.) The jury properly convicted defendant for vandalism of real property, based on a theory that was presented to the jury in the information, which refers to both real and personal property. (People v. Kunkin (1973) 9 Cal.3d 245, 251; People v. Smith (1984) 155 Cal.App.3d 1103, 1145.)
C. Cutting Power Line
Next defendant asserts there is not substantial evidence that he severed a power line in violation of section 591. He hypothesizes that someone else could have cut the lines between April 1, the last inspection day, and April 8. He again argues there is no evidence of a second “phantom” perpetrator and defendant did not have the tools necessary to cut the wires.
As we have already discussed, there is substantial evidence an accomplice assisted defendant and that defendant was cutting the power line when he caused a short circuit of the primary volt line to occur.
D. Grand Theft
Defendant also contends the prosecution did not prove there was substantial evidence of an attempt to commit grand theft, stealing copper wire worth more than $400: “Grand theft is theft committed in any of the following cases: [¶] (a) When the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400),...” (§ 487, subd. (a).) The amount of copper wire actually removed was worth about $307 but the amount of wire available was about $700 total, including non-energized wire worth $147.
We have already concluded that defendant was sufficiently implicated in the theft of the 50 pounds of wire. He was electrocuted while he was trying to steal more. A reasonable jury could find defendant meant to take the wire worth $147 and more before finally leaving the station. Attempted grand theft was adequately demonstrated by the evidence.
E. Instructional Error
Defendant finally assays the argument that the court should not have instructed the jury on accomplice liability based on CALCRIM Nos. 373 [other perpetrator] and 400 [aiding and abetting]. As we have fully discussed, substantial evidence warranted giving these instructions. The court did not err.
IV. Disposition
We affirm the judgment.
We concur: King, J., Miller, J.