P. v. Tobey
Filed 1/29/14 P. v. Tobey CA1/1
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opinion has not been certified for publication or ordered published for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 ONE
THE PEOPLE,
Plaintiff and
Respondent,
v.
DAVID TOBEY,
Defendant and
Appellant.
A134882
(Solano
County
Super. Ct. No.
VCR209863)
Defendant David Tobey
jury trial, of cutting a utility line (Pen. Code, § 591)
(§ 594, subd. (a)). The court placed
defendant on formal probation subject to various terms and conditions, including
that he “seek and maintain full-time gainful
employment and/or vocational training or a combination of those.†He contends the felony
vandalism conviction must be reversed because
there is no evidence he caused $400 or more of damage. He also contends the employment/training
the circumstances. We affirm both the
conviction and probation condition.
Background
In December 2010, California Highway
Patrol Officer William Gerstmar was on routine patrol with his partner in the
680 and 780 in Benicia at about 7:30
p.m. and 9:30 p.m., and
did not notice anything unusual about the freeway lights. On a third sweep, at 2:16 a.m., the
officers passed a pickup truck stopped on the shoulder of highway 780 with a
person standing near its front bumper. They also noticed the freeway lights in the
area were no longer working. The
officers turned their patrol car around and headed toward the truck to make
contact with the person they had seen. They pulled in and stopped behind the
truck and then found defendant lying face down in the mud with his hands
underneath him. A flashlight lay on the
ground nearby, and about two feet away was an open utility box with cut wires. Gerstmar heard movement in a nearby bush. Meanwhile, he yelled at defendant to show his
hands. Defendant did not comply, and
showed his hands only after the officers drew their weapons and repeated the
command.
When Gerstmar asked what defendant
was doing in the area, he replied he had run out of gas. Gerstmar patted him down, and discovered a
pair of wire cutters and a screwdriver. Upon examining the nearby utility box,
Gerstmar observed two wires in the box had been cut, and he found “two or
three, five to six-inch segments of wire matching the wire that was in the box
laying outside the box . . . within arm’s reach of where [defendant] was
laying.†On the window of the truck, a
note read “[o]ut of gas, be back soon.†The
note was written on the back of a copper recycling receipt from about two weeks
prior made out to someone other than defendant.
The officers placed defendant in the
back of the patrol car and asked him “who was out there[?]†Defendant initially replied “no one,†but
eventually admitted “his partner was out there.†Despite searching with additional officers and
a canine unit, the officers did not find anyone else. The officers then examined other nearby
utility boxes within 300 yards. They
found “nine other boxes†with opened lids, and Gerstmar believed “seven of the
boxes had wires severed.†Although he
did not contact Caltrans to check what specific tools were necessary to open
the boxes, Gerstmar opined, based on his “daily experience,†a screwdriver would
suffice.
The Solano County District Attorney
filed an information in March 2011, charging defendant with felony cutting of a
utility line (§ 591), felony vandalism over $400 (§ 594, subd. (a)), and
misdemeanor possession of burglar tools (§ 466). Before trial, defendant filed a motion to
dismiss under section 995 claiming, inter alia, there was insufficient evidence
to prove actual damages over $400, a requirement of felony vandalism. The trial court denied the motion. Defendant also filed a motion in limine to
exclude evidence the officers “located nine electrical utility boxes†with
removed lids or tampered-with wires, claiming there was nothing linking defendant
to the other boxes. The trial court also
denied this motion.
At trial, Caltrans electrical
supervisor Roberto Magalog, who as part of his job estimates damages to
equipment, estimated the cost to repair the nine damaged or tampered boxes and
lights in the area at $3,500. The
replacement cost for the copper wire was at least $500, the cost of a vehicle
around $500, and the labor costs at least $1,000, using conservative estimates.
Magalog also explained if one wire is
cut, it can sometimes affect more than one light, increasing the repair costs. He stated his workers could not “fix just one
box and get the lights to come back on.†The jury returned guilty verdicts for the felony
charges of cutting a utility line and vandalism.
“ ‘When considering a challenge to
the sufficiency of the evidence to support a conviction, we review the entire
record in the light most favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.’ [Citation.] ‘This standard applies whether direct or
circumstantial evidence is involved.’ [Citation.]†(People v. Avila (2009) 46
Cal.4th 680, 701.)
Defendant concedes circumstantial evidence
linked him to the damaged utility box next to where he was found, but argues no
substantial evidence links him to the other damaged boxes, and without that
link, the jury’s finding he caused over $400 worth of damage was unfounded. We disagree.
During Officer Gerstmar’s prior
“sweeps†of the particular section of Highway 780 just hours earlier, the
freeway lights had been operational. The
opened or tampered with boxes near where defendant was found were “along the
route of [light] poles†and within 300 yards of the box where he was found. Defendant was in possession of not only a pair
of wire cutters, but also a screwdriver, which Gerstmar testified could open
the lids of the boxes. A flashlight was
found near defendant, and “two or three†pieces of wire were within his arm’s
reach. Although a search of defendant
and his truck revealed no additional wire, defendant admitted he had been
working with a partner, who was not found.
The jury could have concluded the partner escaped with any additional
wire the two had procured from the string of damaged boxes. In addition, the out-of-gas note was written
on the back of a copper recycling receipt from about two weeks prior and made
out to another individual—more evidence of a collusive and significant effort
to obtain and sell copper materials. The
jury could well have determined defendant, either himself or in conjunction
with his partner, damaged the entire string of utility boxes and stole all the
missing wire. Further, Magalog testified
his Caltrans team could not “fix just one box and get the lights to come back
on.†In fact, the cost of getting a
vehicle out to the area for repairs, alone, was $500. Thus, the jury could also rationally have
concluded even damage to one box resulted in repair costs exceeding $400.
In sum, substantial evidence supports
the jury’s verdict that defendant committed felony vandalism.
Probation
Condition
Defendant also challenges, for the
first time on appeal, the trial court’s order that he “seek and maintain full-time
gainful employment and/or vocational training or a combination of those†as a
condition of his probation. Defendant
claims the court did not assess whether he could feasibly comply with the
condition.
To
challenge the reasonableness of a probation condition on appeal, a defendant
must first raise the issue in the trial court. (People v. Welch (1993) 5
Cal.4th 228, 237; In re Sheena K. (2007) 40 Cal.4th 875, 882; see also People
v. Kim (2011) 193 Cal.App.4th
836, 841 [ruling defendant’s challenge to the
reasonableness of a probation condition that he seek and maintain employment
was forfeited by his failure to question it in the trial court].) Defendant
concedes he did not object to the employment/training condition of his
probation at sentencing, but contends his counsel’s failure to object was ineffective
assistance.
“When a convicted defendant complains of the ineffectiveness
of counsel's assistance, the defendant must show that counsel's representation
fell below an objective standard of reasonableness.†(Strickland v. Washington (1984) 466
U.S. 668, 687–688.) “Second, the defendant must show
that the deficient performance prejudiced the defense.†(Id. at p. 686.) “[T]here
is no reason for a court deciding an ineffective assistance claim to approach
the inquiry in the same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one.†(Id. at p. 697.) Ineffective assistance
claims based upon the failure to object “are routinely denied on the bases that
the unasserted objection was nonmeritorious and would have been overruled.†(People
v. Roberts (2011) 195
Cal.App.4th 1106, 1131.)
Thus, although defendant forfeited his challenge to the
probation condition by failing to object, we consider its substance in order to
dispose of the ineffective assistance argument.
(See People v. Coffman (2004) 34 Cal.4th 1, 82 [“Because,
however, he asserts counsel rendered ineffective assistance in failing to
preserve the point, we address its substance.â€]; People v. Gutierrez
(2002) 28 Cal.4th 1083, 1140 [“Accordingly, defendant’s alternative claim that
counsel rendered ineffective assistance in failing to object must
be rejected; counsel undoubtedly realized an objection would have been
unavailing.â€]; People v. Cunningham (2001) 25 Cal.4th 926, 1003 [failure
to object to unobjectionable material not ineffective assistance].)
“An
order that a criminal defendant seek and maintain gainful employment as a
condition of probation is one commonly imposed.†(People
v. Hodgkin (1987) 194 Cal.App.3d 795, 808; see also § 1203.1
[allowing court to require “the probationer go to work and earn money†in
certain circumstances]; People v. Kim,
supra, 193 Cal.App.4th at p. 841
[reasonable employment conditions would be permissible].)
Due to defendant’s nonviolent history, the trial court concluded
he was suitable for probation. Defendant was employed when he was sentenced, and defense counsel
informed the court of this. Defense
counsel also advised that defendant was supporting a child at home. Thus, the court was aware that defendant was
employable, that he had to support a dependent and that he had to pay restitution
to Caltrans. Accordingly, the court was
adequately apprised of the relevant considerations and acted reasonably in
imposing this standard condition of probation.
We likewise discern no reason for defense counsel to have made an
objection to the condition. Nor is there
any indication on this record that had counsel done so the condition would not
have been imposed. Thus, defendant has
shown no legitimate basis for an objection, nor prejudice from the absence of
an objection. Accordingly, he cannot
salvage his forfeited objection to the probation condition by styling it as a
claim of ineffective assistance of counsel.
The judgment is
affirmed.
_________________________
Banke,
J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
references are to the Penal Code unless otherwise indicated.
