Opinion
E053373
12-15-2011
THE PEOPLE, Plaintiff and Respondent, v. CHARLES ARTHUR POLLEN, Defendant and Appellant.
James M. Kehoe, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FVA1001728)
OPINION
APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore, Judge. Affirmed as modified.
James M. Kehoe, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Charles Arthur Pollen was charged with receiving stolen property (copper wire). (Pen. Code, § 496, subd. (a).) It was also alleged that he had served three prior prison terms. (§ 667.5, subd. (b).) Defendant filed a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The trial court held a hearing and denied the motion. Defendant waived his right to a jury trial, and after hearing the evidence in the case, the court found him guilty as charged. The court also found true the three prison prior allegations. On April 4, 2011, the court imposed the midterm of two years on the conviction. The court struck one of the prison priors pursuant to section 1385, and it imposed one-year consecutive terms for each of the two remaining prior prison term enhancements. The court sentenced defendant to a total of four years in state prison and awarded him 306 days of presentence credits (153 actual days and 153 conduct).
All further statutory references will be to the Penal Code, unless otherwise noted.
Defendant filed a notice of appeal, simply indicating that the appeal was "after a jury or court trial." We modify and affirm the judgment.
FACTUAL BACKGROUND
Doug Egge was the branch operations manager at Modular Space Corporation (the company), a company that leased modular office trailers. These trailers had heating, ventilation, and air conditioning (HVAC) systems mounted in them. Some thefts had been occurring at the company's lot (the lot or yard), where the office trailers were stored. The large lot had a six-foot high chain-link fence surrounding it. Copper wire was being cut out and stolen from the electrical panel boxes in the trailers. On November 3, 2010, 13 trailer units were vandalized and were missing wires. The units that were damaged were all within the line of the north end of the property. Egge and his coworker, Jason McLaughlin, drove to the company's lot and noticed a Jeep Cherokee (the Jeep) parked about 15 feet away from the fence. At trial, Egge testified that the Jeep was stopped/parked "[r]ight in the same row of where these units were . . . vandalized." Egge and McLaughlin pulled up next to the Jeep, and Egge got out of the car to talk to the male sitting in the driver's seat of the Jeep. The male was later identified as defendant. There were no other cars around, and the nearest business was 200 feet down the road. The Jeep engine was running. Egge asked defendant why he was sitting in front of the company's property. Defendant said he was resting because he had a double hernia. Egge noticed assorted tools inside the Jeep. The tools were the type that could be used to vandalize and steal wire from the trailer units. As they were talking, Egge spotted another man inside the company lot, poking his head around the corner. That person did not have permission to be on the lot. Once Egge made eye contact with him, the man turned and ran. Egge chased after him, while McLaughlin stayed with defendant.
The police arrived at the scene and removed items from the Jeep, including some copper wires that were found on the floorboard on the front passenger side. Egge identified the wires as "exactly the same wire that [was] used to hook up [the company's] air conditioners." He could tell because the wires were the same color and gauge as the wire used by the company's air conditioning units. In addition, the length of the wires was consistent with the length of the wires removed from the units. The wiring taken out of the Jeep was also cut "on the same angle" as the wires that had been cut from the trailers.
At the bench trial, Egge testified that because the casing on the air conditioners was totally destroyed, the units had to be replaced. The cost to replace just one of the air conditioning units was approximately $4,000 in labor and materials.
On cross-examination, Egge admitted that the wiring found in the Jeep came out of one or two air conditioning units, not 13 of them. However, he also stated that additional wiring that looked like it had been pulled from the units was found lying on the ground, along the fence line. The piles of wiring were found within 60 to 80 feet of the Jeep's location.
McLaughlin testified at trial that he spoke with defendant for about 20 to 30 minutes before the police came. Defendant told him that he pulled the Jeep over on the side of the road to relieve himself because he had a medical condition. Defendant said he had just come from a metal recycling plant called Avery. He also told McLaughlin that he did not know the person who was spotted in the yard. McLaughlin later walked over to the lot and saw an air compressor from one of the company's HVAC units that was left in the exact spot where the second person was spotted.
Officer Oswaldo Rodriguez testified at trial that he talked to defendant at the scene, and defendant said he knew the man seen in the yard. Defendant identified the man as "Keith." Defendant said he drove Keith to the area, in exchange for gas money. He said he did not know what Keith was there for. Defendant said he saw Keith prop a spare tire near the fence line and use it to jump over the fence. Defendant pointed out the tire to Officer Rodriguez.
Defendant also told the officer that the Jeep did not belong to him; rather, it belonged to an acquaintance, and he was currently working on it. Officer Rodriguez looked inside the Jeep and noticed that the ignition had been broken, and there were wires coming out of the steering column. After defendant was arrested, Officer Rodriguez searched the car and found a pry bar, a tire iron, bolt cutters, and some wires.
Defendant testified at the bench trial on his own behalf. He said he stopped in front of the company's lot because he had to urinate. He left the engine running because the ignition was broken, and to shut off the car, he would have had to bend over and disconnect some wires. Because of his medical condition, he could not bend over. Defendant said no one went to the lot with him. He denied telling Officer Rodriguez that he gave Keith a ride in exchange for gas money. He also denied telling anyone that Keith put a tire near the fence to hop over it. He said the tools in the Jeep belonged to him, and that he was a car mechanic. Defendant said the only wires he saw in the Jeep were the ones he put in the car to hotwire it, since the ignition switch was not working. He said he used the bolt cutters to free the steering wheel because it was being impinged by something.
Defendant denied telling McLaughlin that he had just come from a recycling plant. He also testified that he never saw anyone in the yard.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and a few potential arguable issues: (1) whether the court correctly denied his Marsden motion; (2) whether the court should have reduced the felony conviction to a misdemeanor, pursuant to section 496, subdivision (a); and (3) whether the evidence, which was all circumstantial, was sufficient to convict defendant. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has done. His brief is confusing, but he appears to be arguing that the evidence was insufficient to convict him, since the wire that was found in the Jeep was over 20 years old and could not have come out of the newer trailer units. He points out that "the wittness [sic] didn't say he was sure that the wire that was in the Jeep came out of the company." Defendant adds that he was not given copies of the photo evidence that would show that the wire was 20 years old and complains that his attorney would not help him. He concludes that "[i]n all this I should be given another trial." We will consider his claim to be a challenge to the sufficiency of the evidence.
In reviewing a challenge to the sufficiency of the evidence, we "'must view the evidence in a light most favorable to [the People] and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] The People may rely on circumstantial evidence to connect the defendant with the commission of the crime charged and to establish beyond a reasonable doubt that he committed it. [Citations.] If the circumstances reasonably justify the trial court's findings, an appellate court cannot reverse merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal becomes whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation.]' [Citations.]" (People v. Love (1980) 111 Cal.App.3d 98, 106.) Furthermore, "'it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' [Citation.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Here, there was sufficient evidence to support defendant's conviction. The evidence showed that defendant admitted he drove to the company's lot with the person who was seen inside the yard. He also admitted that he saw that person put a tire near the fence to hop over it. That person was not authorized to be in the yard, and when he made eye contact with Egge, he ran. The evidence showed that defendant waited in the Jeep near the lot, with the engine running. There were no other cars around. Inside the Jeep, the police found tools that were consistent with the type of tools that would be used to take wire from the trailer units. The police also found wire that was consistent in color, gauge, and length with the wire that was stolen from the trailer units. Furthermore, all of the units that were vandalized that day were located within the line of the north end of the yard, near the location of the Jeep. In addition, about five piles of wires were found within 60 to 80 feet of where the Jeep was parked. Viewing the evidence in the light most favorable to the judgment, as we must, we conclude that the evidence was sufficient to convict defendant.
Defendant additionally states the following: "While I'm writting [sic] this I would ask the court to a 'Marsden' motion as this counselor will not help me." We note that defendant previously filed a letter on September 8, 2011, making a similar "Marsden" request. This court deemed his letter to be a motion to substitute counsel and denied the motion on September 15, 2011.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
However, we note that, in granting defendant presentence custody credits, the court stated that "[c]redit for time served [was] 153 days actual," and that "[u]nder 2933 it will be 153 days conduct for a total of 306." The minute order and abstract of judgment reflect the same. This appears to be error. Defendant was sentenced on April 4, 2011. The version of section 2933 that was in effect at that time provided that "[s]ection 4019, and not this subdivision, shall apply if the prisoner . . . has a prior conviction for a serious felony, as defined in Section 1192.7 . . . ." (Former § 2933, subd. (e)(3), as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.) Defendant has a prior conviction for assault with a deadly weapon (§ 245, subd. (a)), which is a serious felony. (§ 1192.7, subd. (c)(31).) The trial court awarded him conduct credit under section 2933. However, the court should have applied section 4019 in calculating his credits.
Section 2933 has been amended again, effective October 1, 2011.
"Computational errors of this kind result in an unauthorized sentence, and are subject to correction by the trial court or the appellate court when presented. [Citation.] The correction should be made even if it results in less credit (and hence a longer term in custody) for the defendant. [Citation.]" (People v. Guillen (1994) 25 Cal.App.4th 756, 764.) When defendant committed the crime, as well as when he was sentenced, section 4019 provided that a term of six days would be deemed to have been served for every four days spent in actual custody. (Former § 4019, subd. (f), as amended by Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010.) The record indicates defendant spent 153 actual days in custody. Defendant's conduct credits should have been calculated at the rate of two days for every four days of presentence custody. In other words, as recommended by the probation department, defendant should have been awarded credits for 153 actual days plus 76 days of conduct credit under section 4019, for a total of 229 days of presentence credits.
Section 4019 has been amended again, effective October 1, 2011.
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DISPOSITION
The judgment is modified to award presentence credits under section 4019, consisting of 153 days of actual custody time, plus 76 days of conduct credit, for a total of 229 days of presentence credits. The superior court clerk is directed to amend the sentencing minute order of April 4, 2011, and the abstract of judgment to reflect 229 days of presentence credits. The superior court clerk is also directed to forward a copy of both the new minute order and the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
RICHLI
J.