P. v. Pautenis

Filed 10/17/07 P. v. Pautenis CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

The trial court placed defendant on probation after he pleaded no contest to making a criminal threat. (Pen. Code, 422.)^[1] Subsequently, the court found that defendant had violated his probation for having concealed stolen property. The court revoked and reinstated probation on modified terms and conditions. Defendant maintains that substantial evidence did not support his revocation of probation. We affirm the judgment.

BACKGROUND

On January 2, 2003, defendant was charged with making a criminal threat ( 422) with the special allegation that he was armed with a firearm ( 12022, subd. (a)(1)). On May 29, 2003, defendant pleaded no contest to making a criminal threat. The trial court suspended imposition of sentence and placed defendant on probation on July 1, 2003.

On May 12, 2006, a petition to revoke defendants probation was filed. The court held a hearing on this petition on June 27, 2006. Steven Harville testified that he discovered that his truck containing service boxes with tools was missing about 4:30 p.m. on May 7, 2006. The truck was recovered about four days later but, according to Harville, the ignition was pretty much destroyed, the drivers side door lock was altered to remain open, and the service boxes had been pried open.

Deputy Sheriff Aaron Mosley testified and stated that, on May 10, 2006, he was going to defendants home to talk to him about his son riding his bicycle without a helmet. He spotted a utility truck parked on defendants property. The license plate was blocked by a large green yard waste bin. Mosley then saw defendants son, Daniel, drive up on his bicycle. He motioned for Daniel to come over to him, and he asked him to find his father as he wanted to talk to him. Daniel told Mosley that the Chinese guy had dropped the truck off a few days prior. Mosley confirmed that the truck, which had Washington license plates, was stolen.

Daniel, defendants son, testified at the hearing. He stated that on May 10, 2006, he saw Mosley standing behind the truck parked on his fathers property. Mosley was writing something on a piece of paper. Mosley asked Daniel whether his father was home, and he responded that he was. Daniel told Mosley that he did not need to talk to his father about the blue truck, because two Chinese guys dropped off the truck at his property a few days earlier. Daniel claimed that the two men dropped the truck off and then went down the street to Ponchos Bar. He did not see them ever return from the bar.

Mosley spoke to defendant, who told him that he had done some yard work and had unintentionally placed the bin in front of the trucks license plate. Defendant told Mosley that a person named Rico had left the truck. He did not know Ricos last name, address, or phone number. Defendant said that Rico dropped the truck off and went to Ponchos Bar. Rico was going to return for the truck, according to defendant. Defendant appeared under the influence of a controlled substance. Defendant told Mosley that he had taken amphetamine pills for his allergies.^[2] Mosley then placed defendant under arrest.

After hearing the evidence and argument, the trial court ruled: I am convinced by a preponderance of the evidence that the defendant concealed stolen property. Therefore, he is in violation of probation.

On August 30, 2006, the trial court revoked and reinstated probation on modified terms and conditions.

Defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends that substantial evidence does not support the lower courts finding that he violated his probation by concealing stolen property ( 496, subd. (a)).^[3] The prosecution must prove a probation violation by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) We review the trial courts decision to revoke probation under the standard of review of substantial evidence. (People v. Kurey (2001) 88 Cal.App.4th 840, 848.)

When a finding of fact is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. [Citation.] (Scottv.Common Council (1996) 44 Cal.App.4th 684, 689, quoting Green Trees Enterprises, Inc.v.Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784-785.) The testimony of a single credible witness may constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)

The offense of concealing stolen property consists of the act of intentionally secreting stolen property in violation of the affirmative duty to return it . . . to its rightful owner. (People v. Grant (2003) 113 Cal.App.4th 579, 595.) Thus, the prosecution in the present case had to prove by a preponderance of the evidence that the truck was concealed by defendant; the truck had been obtained by theft; and the defendant knew the truck was obtained by theft. (See, e.g., People v. Kunkin (1973) 9 Cal.3d 245, 249.) The evidence that the truck on defendants property was stolen was uncontested. Defendant, however, maintains that substantial evidence did not support a finding that he concealed the truck or that he knew the truck was obtained by theft.

With regard to concealing the truck, Sheriff Deputy Mosley testified that the truck was parked in defendants parking spot and was visible from the street. However, the Washington license plate was blocked by a yard waste bin. Defendant admitted that he had placed the bin there, but denied that he intentionally placed it in a manner to hide the license plate.

Defendant emphasizes that Mosley^[4]testified that he could see the truck from the street. He argues that the waste bin interfered with reading the license plate number from the street, but did not prevent a person from reading the license plate from the public sidewalk area. He asserts that the evidence in support of concealment was therefore nothing more than speculation.

We disagree with defendants interpretation of the evidence. Mosley testified that he could not see the license plate from the street because of the placement of the bin. He specified that a passerby could not have seen the license plate. Moreover, the trial court saw the photographs of the truck and observed the extent to which the truck and its license plate were concealed on defendants property. Further, this was not a situation where there was no evidence of who placed the bin in front of the license plate. Defendant admitted to Mosley that he had done some yard work and had left the bin in front of the license plate. He simply denied doing it intentionally. This evidence is much stronger than speculation. This evidence supports a finding that defendant intentionally placed the bin in front of the license plate so that it could not be seen by someone driving down the street or parked on the street.

The evidence that defendant possessed the truck and knew it was stolen also supported the courts finding that he violated his probation. Defendants story that the men left the truck in his parking spot on his property to go to a nearby bar and then failed to return is not believable. The truck was parked on his property in a place where he typically parked his work truck. Further, his sons spontaneous remarks to Mosley that two men left the truck with his father indicated that Daniel knew his father should not have the truck. Further, the door had a punched door lock and a damaged ignition. This evidence amply supported a finding that defendant was aware that the damaged truck was stolen.

Defendant argues that his statements that Rico had dropped the truck off and never returned for it was plausible. He also claims there was nothing implausible, or even uncommon, about [his] not knowing the last name, the telephone number or the address of a friend of a friend. He also claims that the fact that Rico did not return or the fact that the truck was visibly damaged did not establish that he knew the truck was stolen.

Defendant is simply rearguing the facts. Although defendant attempts to characterize the inferences the court could properly draw from this evidence as speculation, the evidence that defendant was aware the truck was stolen was strong. A damaged ignition and door lock would alert any reasonable person that the vehicle was stolen. Defendants rendition of what happened was not believable and the court could fairly conclude that defendant would not permit someone he hardly knew to leave his damaged truck on his property in defendants regular parking spot.

Accordingly, we conclude this record amply supported the lower courts finding that defendant violated his probation by concealing stolen property.^[5]

DISPOSITION

The judgment is affirmed.

_________________________

Lambden, J.

We concur:

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Kline, P.J.

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Richman, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

^[1] All further unspecified code sections refer to the Penal Code.

^[2] Defendant provided a urine sample, but it was lost.

^[3] Section 496, subdivision (a) provides, in pertinent part, that [e]very person who buys or receives any property that has been stolen . . . , knowing the property to be so stolen . . . , or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished . . . . (Italics added.)

^[4] Defendant mistakenly asserts that Deputy Bolten testified. The deputy who testified was Mosley.

^[5] Defendant complains that the Peoples brief fails to respond to his argument. He, however, simply tries to reargue the facts and presents argument as to why he believes those facts did not support the courts ruling. Although we agree the Peoples brief could have made some attempt to address his complaints about the evidence, the Peoples burden was simply to establish that sufficient evidence supported the courts ruling.