P. v. Fugate 6/8/07 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D048422

Case Date: 08/15/2007

Preview:Filed 6/8/07 P. v. Fugate CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. RAYMOND E. FUGATE, Defendant and Appellant.

D048422

(Super. Ct. No. SCN197102)

APPEAL from a judgment of the Superior Court of San Diego County, Timothy M. Casserly, Judge. Affirmed.

Raymond E. Fugate was arrested and his van was impounded. Upon his release from jail Fugate broke into the impound yard where his van was held and took the van. While in the impound yard Fugate broke into three other vehicles in the yard and took a number of valuables from those vehicles. A few days later sheriff's deputies found Fugate and his van. The items taken from the other vehicles in the impound yard were in Fugate's van. Fugate was convicted of two counts of grand theft, one count of petty theft

and one count of trespass with the intent to interfere with a lawful business. The trial court sentenced him to two 6-year sentences on the grand theft charges and two 180-day sentences on the petty theft and trespass charges. The court ordered that all sentences run concurrently. On appeal we find with respect to both grand theft convictions there was substantial evidence the value of the items appellant stole was in excess of $400. We also find there was substantial evidence appellant broke into the impound yard with the intent to interfere with the business of the towing company. Because each theft conviction was related to a separate vehicle from which appellant took valuables, the trial court could impose sentence on each of the three theft convictions. Finally, in light of appellant's concession he suffered eight prior convictions for which probation was not available, the trial court did not infringe upon his Sixth Amendment rights in imposing the upper term on the grand theft convictions. FACTUAL AND PROCEDURAL BACKGROUND At 1:30 a.m. on the morning of July 2, 2005, appellant was arrested by a San Diego County Sheriff's Deputy. At the time of the arrest the deputy arranged to impound appellant's van. Appellant was released from jail at some point before 8 a.m. on July 2, 2005, and appeared at the towing yard where his van was impounded. Appellant asked a tow truck driver who was at the yard for access to his van so he could retrieve some tools. The tow truck driver told appellant he would have to make arrangements with the company's main office to retrieve any items from his van.

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Early in the morning of July 3, 2005, another tow truck driver arrived at the towing yard and discovered someone had broken into the yard. Appellant's van was missing as was property from other cars stored at the lot. Further inspection by another employee of the towing company revealed barbed wire had been detached from the chain link fencing which surrounded the yard and bolts had been taken off interior and exterior gates in the yard. On July 7, 2005, sheriff's deputies responded to the report of a suspicious person working on a disabled car in the street. The deputies found a sedan which had parts laid out around it parked near appellant's van. Upon inspection, the deputies found appellant crouched in his van and a number of the items reported stolen from the cars stored at the towing yard in the van. Appellant was charged by information with two counts of grand theft, one count of receiving stolen property, one count of petty theft and one count of trespass with intent to interfere with a business. At trial the prosecution supported its case as to the first count of grand theft with the testimony of Samuel Cardenas. Cardenas owned a car which was impounded at the towing yard and from which a JVC stereo receiver, an MTX amplifier and Eclipse 12inch speaker was stolen. Cardenas testified it would cost between $530 and $680 to replace the stereo receiver, amplifier and speaker. Cardenas testified he believed it would cost between $80 and $100 to replace the receiver, between $100 to $300 to replace the amplifier and between $300 and $400 to replace the speaker. Cardenas testified that although the receiver was his, he borrowed the amplifier and a speaker from a friend. 3

They went out the night before the car was impounded and plugged his friend's amplifier and speaker into his stereo. According to Cardenas he was with his friend a year earlier when his friend bought the speaker and his friend told him it cost $400. Cardenas testified his estimates were based on what he saw in stores. In addition to Cardenas's testimony, the prosecution presented testimony from a sheriff's detective who went to a number of stereo stores in the area and priced the receiver, amplifier and speaker. The detective testified the retail price of the receiver was between $85 and $120. The detective was unable to find a retail price for the amplifier, but located a wholesale price for it of $135. The detective testified the retail cost of the speaker was likely $299 because the detective believed it had a brushed aluminum cone rather than a plastic cone. Although the console in Cardenas's car was stolen, the prosecution did not offer any evidence as to its value. As to the second count of grand theft, the prosecution presented testimony from Billy Norman. Norman testified he was in the auto parts business for 50 years and he stored seven nearly complete Laforza SUV's at the towing yard. The SUV's were stored at the towing yard until American-made engines could be installed in them. Two leather seats, a steering wheel and floor mats were taken from the Laforza SUV's and found in appellant's van. Norman valued the seats, steering wheel and mats at $1,000. Norman stated that if he were selling the leather seats, he would ask for between $1,500 and $1,800 and his price would be based on the fact he just sold a pair of General Motors seats, which were not leather, for between $1,300 and $1,350. 4

In support of the petty theft charge, the prosecution presented testimony from Jorge Castillo. Castillo's car was also impounded at the towing yard on the morning of July 3, 2005. Castillo's immigration papers, a bottle of whiskey and a CD case holding between 30 and 40 CD's were stolen from Castillo's car. Sheriff's deputies found the whiskey bottle outside the sedan appellant was working on at the time of his arrest; the deputies found the immigration papers and CD case and CD's in appellant's van. Castillo valued the whiskey, CD case and CD's at between $180 and $195. An employee of the towing company testified it cost $250 to repair the fencing and gates damaged when appellant broke into the yard and took his van. The employee also testified that at a minimum it would have cost appellant $206 to get his van released from the tow yard. The jury found appellant guilty on all counts except for the allegation he received stolen property. As to that count he was found not guilty. As to each count of grand theft, appellant was sentenced to the upper term of three years, which, because of prior strikes, was doubled to six years. The trial court sentenced appellant to 180 days for each of the two misdemeanor counts. As we indicated at the outset, the trial court ordered that all the sentences run concurrently. DISCUSSION I In his principal argument on appeal, appellant contends the prosecution did not present sufficient evidence the value of the items which were the subject of his grand

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theft convictions exceeded $400, the statutory minimum for that crime. (Pen. Code,1

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