Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 06WF2169, Craig E. Robison, Judge.
Michael Ian Garey for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
After the parties waived a jury trial, the court found defendant Robert Spencer guilty of misdemeanor attempted grand theft of a pressure washer (Pen. Code, §§ 664, 487, subdivision (a)), and unlawful tampering with a vehicle (Veh. Code, § 10852). The court sentenced defendant to 180 days in county jail. Defendant contends insufficient evidence supports his conviction on both counts, and insufficient evidence supports the finding the pressure washer had a value in excess of $400.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
On the evening of August 3, 2006, John Flanagan backed his open-bed truck into the driveway of his house and parked it for the night. In the truck bed was a pressure washer he used in his painting business to wash off houses. The washer, which weighed about 80 pounds, was tied with nylon straps to hooks in the truck bed. The top of the washer was visible above the truck’s sides.
Around 3:20 a.m., Flanagan’s neighbor, Mark Hutchinson, with his son and two nephews in his vehicle, drove past Flanagan’s house. The scene was lit by the lights of a business across the street. Hutchinson saw “a mid-size or small primered truck” in “primer gray, black . . . with no camper shell” parked by Flanagan’s house. Hutchinson noticed a person “sitting upright” in the driver’s seat. Hutchinson drove about 15 feet further and saw “a man standing by [Flanagan’s] truck . . . .” Hutchinson “idled to a stop.” The man by the truck had his back to Hutchinson and “had a piece of machinery that was swung on the outside of the vehicle, tethered by something, a chain or a strap or something, and he was yanking it back and forth, trying to free it.” Upon realizing the man was not Flanagan, Hutchinson yelled, “Hey.” The man looked at Hutchinson, then “yanked [at the piece of machinery] a few more times.” Again Hutchinson yelled, “Hey.” The man “turned around and jogged to the [primered truck].” “He looked right at” Hutchinson, who “got a very good look at him.” The man “jumped in the truck and took off.”
Hutchinson pounded several times on Flanagan’s front door. When Flanagan came out, Hutchinson explained “what had just happened, and [suggested they] call the police.” Flanagan noticed the pressure washer “had been moved. The straps were loose, [although] not completely detached . . . .” On the side of his truck were new and deep scratches that suggested someone had tried to pull the pressure washer over the vehicle’s right side. Flanagan had not given anyone permission to touch the pressure washer.
An officer arrived and interviewed Flanagan and Hutchinson. The officer completed his investigation at the scene, “drove around the area,” and then parked about a mile away from Flanagan’s home. “[T]here weren’t many cars out on the street at all.” Around 4:20 a.m., the officer “observed a primered gray-and-black Chevy pickup truck drive” by. The truck matched Hutchinson’s description of a “primer gray, mid-70’s Toyota pickup truck with tools in the back.” The officer followed the truck, which sped up to about 70 or 80 miles per hour. From a distance, the officer saw the truck park in a residential driveway. As he drove up, two men standing near the residence’s front door “looked in [his] direction and walked into the front door of the house.” “One was wearing a red short-sleeved shirt and pants” and “a black baseball-type hat.” “The other was male white, shaved head, orange shorts and dark-colored shirt.” An “ID tag” hanging from the primered truck’s dashboard bore defendant’s name. Upon the arrival of backup assistance, the officer knocked at the door. Defendant walked out, still wearing the black baseball cap, and another man (Christopher Ross) came and stood at the door. Both men matched the descriptions given by Hutchinson. The officer detained them both.
Another officer brought Hutchinson to the location to identify the suspects. Spotlights shone on the two men. Hutchinson, seated in the back of a police car, identified with 100 percent certainty the man who had stood by Flanagan’s truck. As to the driver of the primered truck, Hutchinson was “positive it was him.” Less than two hours had elapsed since the incident, so “it was fresh in [Hutchinson’s] mind.” Hutchinson indicated he believed defendant was the suspected driver “because he knew there were two suspects involved” but “he was not able to independently match up [defendant] with being the person that was sitting in the truck.” Hutchinson also indicated defendant’s truck was “absolutely the vehicle.”
In a police interview, defendant stated “he had been parked in front of his parents’ house . . . and that, at some point, he had received a call from Mr. Ross asking him to pick him up from a bar . . . .” Defendant picked up Ross around 3:45 a.m. Defendant then went to a gas station. He was driving home at a fast speed because “he had diarrhea and was about to have an accident.” Defendant had not loaned his truck to anyone that day. Defendant’s booking photograph showed he had a goatee, very short hair, and light skin.
At trial Hutchinson identified a photograph of the primered truck, stating it was “definitely” the one in front of Flanagan’s house that night based on its toolbox and paint job. Hutchinson testified: “I looked at it very closely. I stopped and looked right at it. They didn’t leave right away, so I had a very good look at it, and I had a partial license plate” of 5035. The license plate on the truck in the photograph was 5D07544. Hutchinson testified the man standing by Flanagan’s truck was “kind of stocky” and muscular, a little shorter than 5’11” and about 200 pounds, “had really, really short hair,” and was wearing dark or gray shorts down to or past his knee, and a black t-shirt. He was “white or white mix.”
Hutchinson testified the person sitting in the driver’s seat of the primered truck was thin, with dark hair about two to three inches long, and from his seated position looked to be about 5’7” and 150 pounds. Hutchinson “thought he was dark-complected.” Viewing defendant in court, Hutchinson stated he believed defendant was the driver, but he could not “say for absolute sure.” In the police interview, Hutchinson had said the driver had “a light build,” was “thin,” “either male Hispanic or white and had a dark complexion,” and wore a ball cap. Hutchinson testified that, at the field show-up, he believed defendant “matched the shape, the size,” but “couldn’t 100 percent say that that was the guy, right there.”
Flanagan bought the pressure washer for about $1050. His guess as to its used value was from $300 to $400.
DISCUSSION
Standard of Review for Insufficient Evidence Claims
On appeal we consider “whether there is substantial evidence to support the conclusion of the trier of fact,” “not whether guilt is established beyond a reasonable doubt.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) We review the whole record “‘in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 578.) To be substantial, evidence must be “reasonable, credible, and of solid value.” (People v. Johnson, supra, 26 Cal.3d at p. 578.) “The standard of appellate review is the same when the evidence of guilt is primarily circumstantial.” (People v. Holt (1997) 15 Cal.4th 619, 668.) “‘[I]t 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.’” (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) “‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’” (People v. Bean (1988) 46 Cal.3d 919, 933.)
Substantial Evidence Supports Defendant’s Attempted Grand Theft and Tampering with a Vehicle Convictions
Defendant argues the evidence was insufficient to support his conviction on either count. He contends Hutchinson’s identification of defendant and the truck “was less than convincing.” He further asserts the evidence does not support his liability as either an aider and abettor or a coconspirator. He also argues the evidence was insufficient to prove he acted in association with another person to tamper with Flanagan’s truck.
1. Identification evidence
Defendant argues Hutchinson’s “initial identification of the driver waned when pressed, and he could not be 100 [percent] positive that [defendant] was the driver.” He asserts Hutchinson basically assumed “that because [defendant] was in the company of the co-defendant, he might have been the driver of the vehicle.” He concludes the evidence was insufficient to show defendant was the driver. He also challenges Hutchinson’s identification of defendant’s truck because Hutchinson referred to a Toyota rather than a Chevy truck.
At trial Hutchinson testified he believed defendant was the driver but he could not be absolutely or 100 percent sure. He also testified that at the field show-up, he had been “positive” defendant was the driver. He explained the in-field identification took place “less than two hours” after the incident, when “it was fresh in [his] mind.” He stated that at the field show-up, he “identified both people as being the two men I saw that night.” The officer testified that at the field show-up Hutchinson stated, “Yeah, that’s them. I’m 100 percent positive.” On cross-examination, Hutchinson was asked whether he told the officer at the field show-up he “really couldn’t identify the little guy,” i.e. defendant, but supposed the little guy might be “the guy in the car because he was with the big guy,” i.e. Ross. Hutchinson replied to that question: “He matched the shape, the size; but, yes, like I said earlier, I couldn’t 100 percent say that that was the guy, right there.”
“The general rule . . . is that it is not essential that a witness be free from doubt as to one’s identity. He may testify that in his belief, opinion or judgment the accused is the person who perpetrated the crime, and the want of positiveness goes only to the weight of the testimony.” (People v. Lindsay (1964) 227 Cal.App.2d 482, 494; see also CALJIC No. 2.92 [witness’s degree of certainty affects “weight to be given eyewitness identification testimony”].) “The strength or weakness of the identification, . . . and lack of positiveness in testimony are matters which go to the weight of the evidence and the credibility of the witnesses, and are for the observation and consideration, and directed solely to the attention of the” trier of fact. (People v. Lindsay, supra, 227 Cal.App.2d 482, 493-494.) “Identification of the defendant by a single eyewitness may be sufficient to prove the defendant’s identity as the perpetrator of a crime. [Citation.] Moreover, a testifying witness’s out-of-court identification is probative for that purpose and can, by itself, be sufficient evidence of the defendant’s guilt even if the witness does not confirm it in court.” (People v. Boyer (2006) 38 Cal.4th 412, 480.)
Here, Hutchinson identified defendant, sometimes with 100 percent certainty and sometimes not, as well as his baseball cap and truck. Although Hutchinson described the truck as a Toyota, he testified he focused on the “size and shape” of the vehicle, as well as its toolbox, “home-done paint job,” and license plate number, not on any words like “Toyota” on the back. Any discrepancy or lack of positiveness in the identifications were considerations for the trier of fact in weighing the evidence.
Defendant relies on People v. Blackwell (1961) 193 Cal.App.2d 420 (Blackwell), where an appellate court reversed the defendant’s conviction for armed robbery. (Id. at pp. 421, 426.) Blackwell, however, is inapt because the witness there, by his own testimony, “‘couldn’t see anything.’” (Id. at p. 421.) During the robbery, the witness saw a man wearing a “hat pulled down to his chin” so only his chin was visible. (Ibid.) As a result, the witness was completely unable to identify the defendant from a lineup. (Id. at pp. 421-422.) In addition, although the defendant had tattoos on his hands, the witness “did not notice any tattoos” on the suspect even though the suspect “had his hand on the counter ‘not more than 30 inches’ from” the witness. (Id. at pp. 423, 424,) Here, in contrast, Hutchinson testified he saw the front and side of the driver’s face, and the area was well-lit. Hutchinson did identify defendant, albeit not always with 100 percent certainty.
Defendant also relies on People v. Graziano (1948) 83 Cal.App.2d 701, where two men (not including the defendant) were discovered in a market after closing hours, arrested there, and subsequently pleaded guilty to second degree burglary. (Id. at pp. 701-703.) In a bench trial, the court found the defendant guilty of second degree burglary. (Id. at p. 702.) The appellate court reversed, stating: “There is no evidence in the record of any connection on the part of the defendant with the burglary nor are there any proven facts from which such an inference can be drawn. . . . The last time defendant was seen with either of the other two was three hours before in Los Angeles at Bartolotta’s bar. Testimony of the statements of the other two defendants taken in the absence of defendant in no way implicated him. At the time the officers saw [defendant] that night it was at a position where no reasonable inference could be drawn that he was acting as a lookout. In fact his position 150 to 200 feet away, in front of a place which was entered from the rear, shows that he was in a spot where he could not have been of any possible aid to them had he desired to be. When the officers returned 35 minutes later and found the men in the store, appellant was not seen nor had any warning been given.” (Id. at p. 705.) Here, in contrast, Hutchinson saw defendant at the scene of the attempted theft, while the attempted theft was in progress, in the driver’s seat of the get-away truck.
Finally, defendant equates his case to People v. Draper (1945) 69 Cal.App.2d 781, where the facts were: “‘A verdict finding one defendant guilty of burglary was not sustained by evidence that prior to the crime he was riding in an automobile with his codefendants, that he had an opportunity to participate in the commission of the crime, that he was found near the scene of the crime shortly after the burglary, that he ran when approached by police officers, and that he was not a truthful witness.’” (People v. Graziano, supra, 83 Cal.App.2d at p. 706.) Here, however, defendant was present in the driver’s seat of the get-away truck during the commission of the attempted theft, with the attempted theft taking place in plain view, and upon discovery, drove away from the scene with his codefendant.
We conclude substantial identification evidence ties defendant to the crime and supports the trial court’s finding defendant was the driver.
2. Aiding and Abetting
Defendant next observes there was no evidence he “personally did any act that would constitute attempted grand theft or vehicle tampering.” Nor, he contends, was there sufficient evidence he aided and abetted or conspired with Ross as to either count.
A person who feloniously steals, takes, carries, or drives away another person’s personal property valued at over $400 is guilty of grand theft. (§§ 484, 487.) Attempted grand theft requires: “(1) a person from whom the property may be taken; (2) an intent to take such property against the will of the owner; and (3) an act performed tending to accomplish the foregoing.” (People v. Twiggs (1963) 223 Cal.App.2d 455, 460.)
Unlawful tampering with a vehicle is governed by Vehicle Code section 10852, which prohibits a person from “individually or in association with one or more other persons, wilfully injur[ing] or tamper[ing] with any vehicle or the contents thereof or break[ing] any part of a vehicle without the consent of the owner.”
We turn to the law on aiding and abetting. “Section 31 provides that ‘[a]ll persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.’ ‘A “person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.”’” (In re Malcolm M. (2007) 147 Cal.App.4th 157, 165.) “Whether a person has aided and abetted in the commission of a crime ordinarily is a question of fact.” (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) “Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.” (Ibid.)
Defendant first points out his “association with the alleged perpetrator, and even his nearby presence in the vehicle,” standing alone, are insufficient to subject him to aider and abettor liability. He asserts the “only evidence as to the driver was that he drove Ross away,” and argues this alone was insufficient to “establish that he knew what Ross had done and intended to aid him in any way.” He relies on Pinizzotto v. Superior Court (1968) 257 Cal.App.2d 582, 584 (Pinizzotto), where the appellate court issued a writ of prohibition restraining proceedings against the petitioner for possession of marijuana, and stated: “To be liable as an abetter a defendant must have instigated or advised or have been present for the purpose of assisting. [Citation.] The fact that petitioner drove Forster to the location and apparently was waiting for his return falls short of proof that he was aiding and abetting Forster. That circumstance alone was not enough; there must have been some additional circumstance from which it could be inferred that petitioner had knowledge of Forster’s criminal actions.” (Id. at p. 589.)
In Pinizzotto, supra, 257 Cal.App.2d 582, while the petitioner sat in the driver’s seat of a car waiting for Forster (the perpetrator), Forster ran across the street and disappeared, then seconds later, ran back toward the waiting car. (Id. at pp. 585-586.) At that moment, a police car with its lights on drove toward Forster, who “looked in the direction of the police car and then took an object from his right front pocket and threw it into a nearby area covered with ivy.” (Id. at p. 586.) The thrown object was subsequently found to be marijuana. (Id. at pp. 586-587.) Based on these facts, Pinizzotto can be distinguished from the instant case in two important respects: (1) the evidence in Pinizzotto failed to show the petitioner was present when Forster took possession of the marijuana, and (2) the evidence in Pinizzotto failed to show the petitioner had any knowledge of Forster’s acts. Here, in contrast, defendant sat in his primered truck in front of the victim’s house while Ross perpetrated the attempted theft and vehicle tampering. The street was well illuminated. As the People point out, Ross acted “blatantly” and in plain view, wrestling with a clearly visible 80-pound pressure washer and trying to dislodge it from straps tethering it to the victim’s truck. Defendant’s truck was large enough to accommodate the washer if it had been successfully stolen. Ross drove away with defendant. Defendant was still in Ross’s company about an hour after the incident. From this evidence, the trier of fact could reasonably infer that defendant knew of Ross’s criminal purpose, intended to facilitate the offense, and did facilitate the offense.
Substantial Evidence Supports the Court’s Finding the Value of the Pressure Washer Exceeded $400
Defendant contends the People failed to meet their burden of proving beyond a reasonable doubt the value of the pressure washer was over $400.
A theft of personal property valued at more than $400 is grand theft. (§ 487, subd. (a).) A property’s value is its “reasonable and fair market value.” (§ 484, subd. (a).) “‘Fair market value is the highest price, estimated in terms of money, for which the property would have sold in the open market at that time and in that locality, if the owner was desirous of buying but under no urgent necessity of doing so, if the seller had a reasonable time within which to find a purchaser, and if the buyer had knowledge of the character of the property and of the uses to which it might be put.’” (People v. Pena (1977) 68 Cal.App.3d 100, 102, fn. 1.) “‘[F]air market value’ means the highest price obtainable in the market place rather than the lowest price or the average price. . . . It is not the highest price in the market but the highest price a willing buyer and a willing seller will arrive at.” (Id. at p. 104.) A trier of fact is not bound to accept as conclusive an opinion on value, but should accord it the weight to which the trier of fact finds it to be entitled. (Id. at p. 102; CALJIC No. 14.27.)
In People v. Coleman (1963) 222 Cal.App.2d 358 (Coleman), the appellate court stated: “‘The owner of personal property who is familiar with its original cost and use is qualified to testify regarding its value. . . .’” (Id. at p. 361.) Coleman involved the theft of tools of a kind “used by mechanics in repairing automobiles.” (Ibid.) “[T]he owner of the tools[] was an automobile mechanic, and he had paid $600 for some of the tools approximately five months prior to the theft, and he had not finished making the payments on the other tools. Under such circumstances it [was] reasonable to infer that the owner was familiar with the cost, condition, and use of the tools.” (Ibid.)
In People v. Henderson (1965) 238 Cal.App.2d 566, the court recognized the rule that an owner may testify to the value of the stolen property even when the owner lacks expertise in evaluating that type of property. (Ibid.) There, the “owner testified that the stolen watch was worth $1,800 and the stolen ring $1,200; he had purchased them from established jewelers for these sums; and he had with him the receipts for them.” (Ibid.)
Here, Flanagan, the owner, was a painter familiar with pressure washers and their cost. He testified the washer’s value was “[a]round $1,000.” He further testified he bought it from Sears for around $1050 about a year before the incident. When asked on cross-examination its value as a used washer, Flanagan guessed its used worth to be between $300 to $400. Bearing in mind that the washer’s value was the highest price attainable in the market, i.e. the highest price to which a willing buyer and a willing seller might agree, and viewing the evidence in the light most favorable to the judgment, we conclude substantial evidence supported the court’s finding the pressure washer was worth in excess of $400.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., MOORE, J.
The People charged defendant with felony attempted grand theft. Upon defendant’s motion, the court reduced the charge to a misdemeanor pursuant to section 17, subdivision (b).