Opinion
F061492 Super. Ct. No. 10CM1073
10-31-2011
THE PEOPLE, Plaintiff and Respondent, v. GARY ANTHONY MACEDO, Defendant and Appellant.
Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Kings County. Donna Tarter, Judge.
Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On November 1, 2010, appellant, Gary Anthony Macedo, was charged in a first amended information with burglary (Pen. Code, § 459, count one) and receiving stolen property (§ 496, subd. (a), count two). The information also alleged a prior serious felony conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) for burglary (§ 459).
Unless otherwise indicated, all statutory references are to the Penal Code.
The first amended information originally alleged three counts. Count two was dismissed and count three was renumbered by interlineation as count two.
At the conclusion of a jury trial on November 4, 2010, Macedo was acquitted of burglary but found guilty of receiving stolen property. In a bifurcated proceeding, Macedo waived his rights and admitted the strike allegation.
At the sentencing hearing on December 7, 2010, the court denied defense counsel's request to dismiss the strike allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court sentenced Macedo to prison for the midterm of two years, doubled to four years pursuant to the three strikes law. On appeal, Macedo contends there was insufficient evidence that he knew the property he received was stolen. Macedo also contends the trial court erred in denying his request to strike the prior serious felony conviction allegation. We find no error and affirm the judgment.
FACTS
Diane and Tia Zwetsloot lived in a rural part of Hanford. Rick and Rhonda Bray owned the property across the road from the Zwetsloots. The Brays' property included a small home and a double-wide mobile home. Tia lived in a separate residence closer to the Bray property. At 4:30 or 5:00 p.m. on April 21, 2010, Diane saw Donald Gilbert, a neighbor, drive onto the Bray property in his pickup truck. Gilbert was accompanied by Macedo, someone Diane had seen before.
When Gilbert drove onto the property, there was nothing in the bed of his pickup. Gilbert and Macedo exited the pickup and walked inside the back patio of the house. Diane called Tia to tell her something suspicious was happening on the Bray property. Tia called Rhonda Bray and learned that no one was supposed to be on the property. Tia then called the Sheriff's Department.
Tia saw Gilbert walking back and forth on the Bray property. It appeared to Tia that Gilbert was looking out. After five to eight minutes, Tia saw Macedo in the screened porch area of the house. Gilbert and Macedo got back into the pickup and drove to the back of the mobile home.
Diane saw Macedo stay in the patio area while Gilbert walked over to the mobile home. Diane said Gilbert returned to the patio area and then he and Macedo got into the pickup and drove to the back of the mobile home. When they drove back to the road, Diane saw a "big white thing" in the bed of the pickup.
After a few minutes passed, Gilbert and Macedo drove to the road, turned north, and drove away. There was an object in the bed of the pickup that took up the majority of the truck bed. The object was round and white. Tia never saw either man near dog kennels located on the Bray property.
Rhonda Bray drove along the road and approached Gilbert's residence after receiving Tia's call. Bray saw Gilbert backing out of his driveway with what looked like a water heater in the bed of his pickup truck. Bray drove back to her property and saw the door to the water heater closet was open and the water heater, purchased in 2006, was missing. The water heater had been in its proper location until this incident.
King's County Sheriff's Deputy Anthony Brandt was dispatched to investigate the incident at 5:12 p.m. Driving south on the road, Brandt saw a pickup truck matching the dispatcher's description driving north. Brandt turned around and stopped the pickup truck, which was occupied by Gilbert and Macedo. There was a water heater in the bed of the truck. Although it had been raining that day, the water heater was mostly dry as if it had recently been placed in the bed of the truck.
Gilbert told Deputy Brandt that he and Macedo had just left his residence and that they had been looking at dog kennels on the Bray property. Macedo said nothing other than he was with Gilbert. Gilbert told Brandt he had placed the water heater in the bed of his pickup truck the night before. Gilbert said he got the water heater from his grandmother's home.
Sheriff's Detective Steven Fry arrived at the location of the traffic stop. Fry noticed the hot water outlet was pipe made of flexible copper tubing. The pipe was broken off and the end of the pipe where there would be a threaded attachment was missing. At the break point, the pipe was shiny, jagged and torn. This caught Fry's attention. The rest of the copper pipe was oxidized and had a patina to it. This indicated to Fry that there had been a recent break in the line.
Fry went to the Brays' mobile home and found an empty hot water closet. At the top of the hot water closet there was a piece of copper flex pipe coming down from the ceiling. Fry unscrewed the pipe by hand. The jagged and torn edge of the copper pipe from the home and the piece on the water heater looked identical to Fry.
Detective Fry went back to the site of the traffic stop to compare the piece of copper pipe from the mobile home to the jagged piece of copper pipe on the water heater. The jury saw Exhibit 19, a photograph of Fry holding the two pieces of copper pipe together. Fry described the two pieces of copper pipe as "a perfect marriage."
Gilbert and Macedo were arrested and a search of the pickup truck was conducted incident to the arrest. Investigators found a ten-inch crescent wrench, tin snips, and a green multi-tool with its own tin snips on the driver's side of the pickup. The crescent wrench could have been used to unbolt the water heater.
Deputy Chris Zuniga went to the Brays' property to further investigate. There was an older, rusted out water heater on the screened porch at the Brays' white house. It looked like junk. This older water heater did not look as though it had been there for long because there were drag marks across the threshold.
Gilbert testified he had known Macedo for six to eight months. When Macedo visited Gilbert, they would work on cars and other vehicles. Gilbert testified that Macedo asked if they had permission to be on the property. Gilbert told Macedo they did have permission to go onto the property. In fact, Gilbert did not have permission to be on the Brays' property. Gilbert said he lied to Macedo.
Gilbert had seen others salvaging on the Brays' property and did not believe he was doing anything wrong. Gilbert said that at the Brays' property, they found an old, rusty water heater inside the patio area and moved it four or five feet. Gilbert did not take it for scrap because it was too muddy. Gilbert and Macedo went to the mobile home and found a water heater in the water heater closet. They were able to only unhook one section of the water heater, so they broke it off the other section and placed it into the pickup.
Gilbert admitted he pled guilty to stealing the hot water heater. Gilbert did not tell Macedo that they did not have permission to be on the Brays' property because he needed help to grab the water heater from the property. Gilbert admitted going to prison twice before and to having a lengthy criminal record. Gilbert admitted he had convictions for receiving stolen property and possession of methamphetamine. Gilbert also admitted he was lying to investigators when he told them he had gotten the water heater from his grandmother's home.
Deputy Zuniga testified that while Macedo was in custody in the back of his patrol car, Macedo told Zuniga that he and Gilbert obtained the hot water heater from Gilbert's grandmother's home. Macedo repeated the statement.
EVIDENCE OF DEFENDANT'S KNOWLEDGE
Macedo contends there was insufficient evidence to support his conviction for receiving stolen property because there was no evidence that he was aware the water heater was stolen. Macedo argues there was no substantial evidence countering the defense testimony from Gilbert that Macedo took the water heater believing he had permission to do so.
In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. It is the jury, not the appellate court, which must be convinced of a defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320 and People v. Johnson (1980) 26 Cal.3d 557, 578.)
In reviewing a challenge to the sufficiency of the evidence, appellate courts do not determine the facts. We examine the record as a whole in the light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Guerra (2006) 37 Cal.4th 1067, 1129 [questioned on another ground in People v. Rundle (2008) 43 Cal.4th 76]; People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)
An appellate court must accept logical inferences that the jury might have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before setting aside the judgment of the trial court for insufficiency of the evidence, it must clearly appear that there was no hypothesis whatever upon which there was substantial evidence to support the verdict. (People v. Conners (2008) 168 Cal.App.4th 443, 453; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
Possession of stolen property, accompanied by suspicious circumstances, justifies an inference that the property was received with knowledge it was stolen. Conflicting and unsatisfactory accounts of acquisition of stolen property will justify an inference that the property was received with knowledge it had been stolen. (People v. Taylor (1969) 2 Cal.App.3d 979, 984.) This inference can also be drawn where there is no explanation, or an unsatisfactory explanation, of possession of the stolen property, or if the property was acquired under suspicious circumstances. (People v. Lopez (1954) 126 Cal.App.2d 274, 278; People v. Boyden (1953) 116 Cal.App.2d 278, 288.)
We reject Macedo's argument there was no evidence countering Gilbert's testimony that he lied to Macedo concerning whether they had permission to be on the Brays' property. Gilbert admitted during his testimony that he lied to investigators when he told them the water heater came from his grandmother's home. The jury was entitled to give Gilbert's testimony as much or as little credibility as the jury believed it deserved. By Gilbert's own admission, he and Macedo entered the Brays' property and together dismantled the water heater. They apparently moved an older water heater, but abandoned it. At one time while on the Bray property, Gilbert appeared to Tia to be acting as a lookout. The newer water heater taken from the Bray mobile home was taken away hastily. These were all suspicious circumstances that would have been readily observable by Macedo.
Further suspicious circumstances come from Macedo's statement to Deputy Zuniga that the water heater came from Gilbert's grandmother's home. Macedo did not tell Zuniga that he and Gilbert had permission to be on the Brays' property. The jury could reasonably infer that if Gilbert had told Macedo they had permission to be on the Bray property, it would have been in Macedo's best interests to state this to investigators and his failure to do so would justify an inference that the property was stolen. The difference between Gilbert's and Macedo's original statements to investigators and Gilbert's trial testimony is an inconsistent explanation for how Macedo came to be in possession of stolen property. The jury could rationally reject this portion of Gilbert's testimony.
Gilbert also originally told investigators that he was only standing around dog kennels on the Bray property. Neither Tia nor Diane Zwetsloot saw Gilbert or Macedo standing near the dog kennels. This was another statement to investigators that was inconsistent with the observations of two independent witnesses.
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More importantly, Macedo was clearly lying to Deputy Zuniga when he said the water heater came from Gilbert's grandmother's home. Macedo was seen by others on the Brays' property with Gilbert, and Gilbert admitted Macedo assisted him in removing the water heater. Under these circumstances, Macedo's explanation of events was clearly unsatisfactory. Macedo's lie was a further suspicious circumstance justifying the inference that the property was received with knowledge it was stolen. We find there was substantial circumstantial evidence at trial from which the jury could reasonably infer that Macedo knew the property he received was stolen.
ROMERO DISCRETION
Macedo contends the trial court abused its discretion in failing to strike his prior serious felony conviction pursuant to section 1385 and Romero, supra, 13 Cal.4th 497. We disagree and will affirm the judgment.
We review a ruling upon a motion to strike a prior felony conviction under a deferential abuse of discretion standard. (People v. Williams (1998) 17 Cal.4th 148, 162.) The appellant bears the burden of establishing that the trial court's decision was unreasonable or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful sentencing objectives].) We do not substitute our judgment for that of the trial court. (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).) "It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendant's] prior convictions." (Ibid.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
Defense counsel made a written request pursuant to Romero and also argued at the sentencing hearing for the application of Romero. The trial court was well aware of its discretion to strike the prior serious felony conviction pursuant to Romero, but declined to do so, noting appellant's long criminal history. Macedo had 12 misdemeanor convictions related to his driving record between 1976 and 2005, including one for vehicular manslaughter. Between 1981 and 2010, Macedo had seven misdemeanor convictions including one for assault, one for possession of a weapon, and five Health and Safety Code violations for drug offenses. During that same period of time, Macedo had multiple prior felony convictions for possession of controlled substances and one for first degree burglary in 1987.
Macedo argues that the cause of his criminality is his drug addiction. Between 1981 and the present, Macedo has consistently reoffended. We also reject Macedo's argument that his strike conviction in 1987 for first degree burglary was too remote in time to be used against him. We note, however, Macedo continued to be convicted of felonies through to the present case. Macedo also had a conviction for possession of a weapon in 2003. As for Macedo's contention that the burglary conviction was remote in time, his ongoing and uninterrupted criminality would justify the trial court's consideration of the burglary conviction.
Macedo is essentially asking this court to reweigh the evidence and substitute our judgment for that of the trial court. We decline his invitation to do so. "Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance." (Myers, supra, 69 Cal.App.4th at p. 310, quoted with approval in Carmony, supra, 33 Cal.4th at p. 378.)
Given the Macedo's long criminal history, the trial court did not abuse its sentencing discretion in denying appellant's request pursuant to Romero to strike the prior serious felony allegation. The record in this case shows that the court understood its discretionary authority and it weighed all of the competing facts to reach a reasonable conclusion. After evaluating the entirety of that information, the court drew its ultimate conclusion and declined to exercise its discretion to strike one or more of the prior serious felony convictions. In view of these facts and circumstances, Macedo has failed to show abuse of discretion. (See Carmony, supra, 33 Cal.4th at pp. 378-380; Myers, supra, 69 Cal.App.4th at p. 310.)
DISPOSITION
The judgment is affirmed.