P. v. Fetterly

Filed 8/8/08 P. v. Fetterly CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Larry R. Brainard, Judge. Affirmed.

A jury convicted Richard M. Fetterly of second degree burglary and receiving stolen property. The court found Fetterly suffered five prison priors and a prior strike and sentenced him to a prison term of eleven years for the burglary, staying his four-year sentence for receiving stolen property. Fetterly appeals, contending the evidence is insufficient to support his conviction of burglary. We affirm the judgment.

FACTS

A. Prosecution Case

In October 2006 Kurt Kohanowich purchased a house, began remodeling it and stored various items there. Appellant and his wife lived across the street from the house Kohanowich was remodeling.

On December 9, 2006, Kohanowich went to his house and noticed someone broke the window to the side door, ripped out the garage door jamb and stole $2,100 worth of his possessions.

Four days later, Kohanowich visited appellant's residence and found several of the stolen items. Kohanowich then went to the construction site where appellant worked and saw more of his stolen property.

Appellant arrived at the construction site shortly after Kohanowich. Appellant first proclaimed his ownership of the items but then told Kohanowich to take the things he thought were his.

Kohanowich returned to appellant's residence, checked the garage and found more of his property. Appellant followed Kohanowich and explained he found all of the items in the dumpster in the alley behind the house. When Kohanowich told appellant he searched all the dumpsters after the burglary, appellant replied he found some of the items on the side on the dumpster.

On January 3, 2007, police arrested appellant and found a ziploc bag under the passenger seat of his car containing Kohanowich's passport, credit cards, debit cards and government identification.

B. Defense Case

Appellant testified that on December 12, 2006, he awoke at 10:00 a.m. and went to get breakfast.^[1] As he was walking through the alley, he found Kohanowich's property and carried the items home. He testified he did not get breakfast. Appellant later left his home for a 2:30 p.m. appointment with the Social Security department. He did not know Kohanowich's home was burglarized until after Kohanowich confronted him on December 13, 2006.

Appellant's wife testified that on December 12, 2006, appellant woke up early, left the house and returned with breakfast. Appellant then left the house again and returned with some items before appellant met with his boss between 8:00 and 9:00 a.m.

Appellant and his wife found the ziploc bag among their belongings a few days after they moved out of the residence. Appellant told his wife to return the bag to Kohanowich.

DISCUSSION

Appellant contends the evidence is insufficient to support his conviction of second degree burglary because there is no direct evidence that appellant was the individual who unlawfully entered Kohanowich's house and took Kohanowich's property.

1. Standard of Review

In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presume in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.) Unless it is shown that "on no hypothesis whatever is there sufficient substantial evidence to support the [conviction]," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

2. Discussion

The possession of stolen property alone is insufficient to support a burglary conviction. (People v. Citrino (1956) 46 Cal.2d 284, 288.) However, possession of recently stolen property is so incriminating that only slight corroborating evidence is necessary to sustain the conviction. (People v. Mendoza (2000) 24 Cal.4th 130, 176.) "[T]he failure to show that possession was honestly obtained is itself a strong circumstance tending to show the possessor's guilt of the burglary." (People v. Citrino, supra, 46 Cal.2d at pp. 288-289.) Familiarity with the burglarized premises is also a circumstance the jury may consider. (People v. Mercer (1951) 103 Cal.App.2d 782, 789.)

Appellant was found in possession of the stolen property four days after the burglary and made several conflicting statements concerning his possession. Appellant first claimed the property as his own but then told Kohanowich he could take what was his. Appellant also declared he found all the property in the dumpster in the alley. When Kohanowich replied he searched all the dumpsters in the alley after the burglary, appellant clarified he found some of the property on the side of the dumpster.

Further, appellant's testimony concerning how he came into possession of the property was problematic. The fact the property was distributed throughout appellant's residence and work site suggested he did not find the property only a day before as he claimed but instead suggested that he had the property for some time, enough time to move it to useful spots.

Appellant's testimony was also factually contradicted by his wife, who testified on his behalf. The two testimonies clashed as to the time appellant awoke and left the home, who was meeting with appellant that day, whether appellant picked up breakfast and if appellant and his wife ate that breakfast together.

Appellant's familiarity with the burglarized premises is another corroborative factor. Appellant lived right across the street from Kohanowich's house, giving him the opportunity to observe the property and when nobody was present to commit the burglary.

Contrary to appellant's assertions, the fact that no direct evidence places appellant at the scene does not undermine the sufficiency of the circumstantial evidence supporting his burglary conviction. Appellant's conflicting statements, incredible testimony and familiarity with the burglarized premises furnish sufficient corroborating evidence with the fact of his possession of recently stolen property and absence of any satisfactory explanation thereof. The evidence is sufficient to support his conviction of second degree burglary.

Judgment affirmed.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

IRION, J.

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^[1] Appellant's testimony varied if he had already eaten and was getting breakfast for his wife or if he was getting breakfast for both himself and his wife.