P. v. Pohl



















Filed 5/8/13 P. v. Pohl CA3











NOT TO BE PUBLISHED



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opinion has not been certified for publication or ordered published for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.





IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Placer)

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>

THE PEOPLE, Plaintiff and Respondent, v. CODY EDWARD POHL, Defendant and Appellant.

C071860 (Super. Ct. No. 72006157)

On September 8, 2010, defendant Cody
Edward Pohl was charged with first degree
burglary (two counts); second degree
burglary; receiving stolen property (five counts); petty theft with priors
(two counts); possession of methamphetamine; and misdemeanor possession of
paraphernalia for injecting and ingesting a controlled substance. As to the felonies charged, it was alleged
that defendant had a prior strike. As
to the first degree burglary counts, it
was alleged that defendant had a prior serious felony conviction.

Defendant
waived jury trial and the matter was then tried to the trial court.

On September 17, 2010, after some counts
were dismissed, the trial court found
defendant guilty of one count of first degree burglary, two counts of second
degree burglary, receiving stolen property,
petty theft with a prior, possession of methamphetamine, and possession
of paraphernalia . The court found
defendant not guilty of one count of petty theft. The court found true that defendant had
previously been convicted of robbery, a strike, and had served a prior prison
term.

On November 12, 2010, the trial court
entered “findings and statement of decision following court trial,” which
summarized the facts found by the court.
We set out parts of this statement as follows:

“Mirlaine
B[.] [fn. omitted] and the defendant were married in 2002 and lived in North
Shore, Lake Tahoe
[on] Lake Forest Road. Mirlaine’s daughter from a previous
relationship, Meline B[.], also resided in the home and had her own bedroom.

“In about
2008, Mirlaine and the defendant decided to build a home on a vacant lot [on] Alder
Street in Tahoma. . . . However, before the home was completely
finished, they ran short of money after a falling out with their
contractor. Also, for the past three
years the relationship between the defendant and Mirlaine had begun to sour as
she noticed a change in his behavior. . . . Finally, Mirlaine . . . cut off the
defendant’s money and stopped paying bills for the new home construction, which
was in the defendant’s name. In
response, the defendant told her that if she didn’t give him money he would
steal it from someone.

“On March 5, 2009, at a pawn shop in Reno,
the defendant pawned a guitar belonging to M[eline] B[.] that she had kept in
her closet in her bedroom at the residence on Lake
Forest Road.
Previously, she had specifically informed the defendant that he was not
allowed to enter her bedroom. The
defendant is charged with burglary of the bedroom in Count One.

“Mirlaine
and her daughter became afraid of the defendant to the point that on March 15, 2009, Mirlaine obtained a
restraining order against the defendant preventing him from coming to the
residence and two days later she filed for divorce.

“By March
2009, the home under construction on Alder Street
was nearly complete. . . .
There was convincing evidence
that following the issuance of the restraining order, the defendant began to
live at the Alder Street
residence.

“In
mid-August 2009, someone stole three newspaper vending machines from various
locations in the North Shore
area, including one from the Fireside cafe area. Three weeks later, three more newspaper
vending machines in the Tahoe area also turned up missing.

“Mirlaine
had a cleaning business wherein she had been cleaning both . . .
businesses and residences for the past 26 years. One of the commercial establishments that
Mirlaine cleaned regularly was the Bridge Tender Restaurant in Tahoe
City. . . . Earlier in their marriage, the defendant had
helped Mirlaine clean at the Bridge Tender.
In the restaurant’s storage room there were two safes that the owners
had set in cement to prevent their theft.
Each safe was approximately two feet by two feet in size and weighed
approximately 40-60 pounds. . . .

“Early on
the morning of August 16, 2009,
Mirlaine went to the Bridge Tender to clean and discovered that it had been
burglarized, apparently sometime the night before. The Sheriff was summoned and it was
determined that someone had forced open the front door of the business, broken
away the cement [e]ncasing the safes, and taken them. . . . The restaurant manager estimated that the
safes may have contained as much as $10,000. . . . The defendant is charged with [s]econd
[d]egree [b]urglary of the Bridge Tender in Count Three.

“Mirlaine
also cleaned at two lake front homes, units B and C, [on] West
Lake Blvd[.] in Homewood. Unit C . . . served as a vacation
rental that people could rent on a weekly basis. To gain access there was a key kept in a key
box with a code. On occasion, however,
Mirlaine found the units were left unlocked and . . . open.
. . .

“Mirlaine
had only been cleaning at Unit C since June 2009, but she had previously told
the defendant about her job there. . . .

“On or
about August 25th, Mirlaine went to Unit C to clean and discovered that the
television was missing. . . .
The missing television is large and heavy and takes two persons to move
or carry it. . . .

“[On]
August 25th, . . . a person named James Polce pawned the television .
. . . On the back of the
television set on one side, in an area where one would touch the television if
two persons were carrying it, was the defendant’s fingerprint. The defendant is charged with [f]irst
[d]egree burglary of unit C in Count Two.

“On
September 12, 2009, the defendant was observed to exit a Safeway store in Kings
Beach without paying for groceries . . . . (Count Nine.)

“On
September 2, 2009, investigators went to the . . . Alder Street residence and
located in the backyard . . . one of the two safes taken during the
Bridge Tender burglary. . . .

“Inside the
Alder Street residence, detectives also found the six missing newspaper vending
machines, as described above. The coin
box of each had been broken open. (Count
Four[.])

“About two
blocks away from the Alder [Street] residence, in the woods, detectives found a
Starter brand shoe [of which] the sole pattern matched exactly the shoe wear
prints left at the scene of the Bridge Tender burglary.

“On
September 23, 2009, the defendant was arrested and in a jacket that belonged to
him was found a small, but usable, amount of methamphetamine and a smoking
implement. (Counts Eleven and Twelve.)

“On October
2, 2009, detectives searched a wooded area of Rubicon Road and found the second
safe taken during the Bridge Tender burglary.
The safe had been opened by force and drilled. It obviously had been hit numerous times by a
large object, such as a sledge hammer [sic]. The exterior of the safe is orange
. . . , consistent with . . . orange . . . paint
noted on [a] sledgehammer found at [the] Alder Street [residence].

“On October
8, 2009, detectives were led by James Polce to a location . . . where
. . . some items that had been contained within the orange safe were
found buried in the ground under a pile of rocks. During an interview with police and during
his testimony, the defendant said he knew James Polce as a person he had
allowed to reside in the Alder Street residence.

“At trial,
the defendant testified and denied committing any of the charged offenses.
. . .

“The Court
found most, if not all, of the defendant’s testimony incredible.”

After
denying defendant’s motion to strike the strike, the trial court sentenced
defendant to 13 years 4 months in state prison.
The court purported to strike the five year prior prison term enhancement “in the interest of justice.”

The trial
court thereafter recalled the sentence pursuant to Penal Code
section 1170, subdivision (d), because the court had concluded it lacked
discretion to strike the prior prison term enhancement. The court then resentenced defendant to 14
years 4 months in state prison, changing its prior sentence in several
regards.

On appeal,
this court reversed defendant’s conviction on second degree burglary, modified
his conviction for first degree burglary to second degree burglary, reversed
the true finding on the prior prison term allegation, remanded the matter for
resentencing, and otherwise affirmed the judgment. (People
v. Pohl (May 22, 2012, C066710) [nonpub. opn.].)

On remand,
the trial court resentenced defendant to a state
prison term of six years eight months.
The court awarded defendant 624 days of presentence custody credit (416
actual days and 208 conduct days). The
court imposed a $1,000 restitution fine and a suspended $1,000 restitution
fine, a $200 court security fee, and a
$150 criminal conviction assessment.

We
appointed counsel to represent
defendant on appeal. Counsel filed an
opening brief that sets forth the facts of the case and requests this court to
review the record and determine whether there are any arguable issues on
appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right
to file a supplemental brief within 30 days of the date of filing of the
opening brief. More than 30 days
elapsed, and we received no communication from defendant. Having undertaken an examination of the
entire record, we find no arguable error that would result in a disposition
more favorable to defendant.

DISPOSITION

The judgment is affirmed.







ROBIE , Acting P. J.







We concur:







MAURO , J.







DUARTE , J.