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The People v. Shad Smith

March 2, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SHAD SMITH, DEFENDANT AND APPELLANT.



(Super. Ct. No. 08F01451)

The opinion of the court was delivered by: Butz ,j.

P. v. Smith 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Shad Smith of grand theft. (Pen. Code, § 487, subd. (a).)*fn1 Granted probation, defendant appeals. He contends (1) the trial court erroneously excluded evidence of an accomplice's prior felony convictions, (2) in so ruling, the trial court violated his constitutional right to confront witnesses against him, (3) insufficient evidence supports the trial court's restitution order, and (4) the probation order requires correction to reflect the oral pronouncement of judgment. We will order the probation order corrected in certain respects. We shall affirm the judgment.

FACTUAL BACKGROUND

Anthony Sestito owned 12.5 acres of property located on Jackson Road in Sacramento. Sestito used the property for business and for storage of equipment including a damaged pumper truck, which had a 2,000-gallon aluminum tank mounted on it. Sestito rented some of his property to Ken Whitmire for Whitmire's business. Retiree Harry Smith (Harry),*fn2 apparently no relation to defendant, lived in a trailer on the back of the property and acted as an unofficial security guard or caretaker.

About 4:00 a.m. on Saturday, January 15, 2008, Harry woke up to a very loud scraping noise coming from a warehouse. Harry saw one of Whitmire's employees, Troy Corder, using a forklift to push pieces of aluminum from the warehouse to a U-Haul trailer. Harry saw another man pick up the pieces of aluminum and put them on the trailer. Harry had seen the second man working on the property on prior occasions. Harry saw a third man, who left the property when he saw Harry. Because Corder was involved in the work, Harry assumed that nothing was amiss.

On the following Monday, Harry noticed that a large aluminum tank was missing from the pumper truck. Harry explained what he had seen on Saturday to Sestito. Sestito suspected that the tank had been stolen, cut up, and sold to a recycling business. Sestito went to Sunshine Steel and found a pile of aluminum pieces that belonged to his tank. Sestito had to pay $24,000 to purchase a like-new replacement tank and an additional $2,000 to have it shipped from Kansas City.

Sacramento Sheriff's Detective Jason Manning obtained the weight master's certificate for the aluminum scrap transaction from Sunshine Steel. The certificate listed defendant's name as the seller, with his address, driver's license, vehicle license, and vehicle description. Detective Manning interviewed Corder who admitted that he and defendant had stolen the tank, cut it up, and sold the pieces. Corder refused to identify the third man involved. Manning interviewed defendant who said that his involvement in the theft was known and talking about it would be of no benefit to him. Defendant stated that using his own identification had been "stupid."

At trial, Corder testified under a grant of immunity. Corder entered a plea of guilty to grand theft of the tank. He had not yet been sentenced. He admitted that he had previously been convicted in 1998 of felony vehicle theft and felony evading. Corder had worked for Whitmire whose business included concrete work and recycling. The day before the theft, Corder, defendant, and the third man, who Corder continued to refuse to identify, discussed stealing the tank, which they all knew belonged to Sestito, cutting it up, and turning it in as scrap metal for recycling. About 9:00 p.m. on Friday, January 14, 2008, they returned to the property and used a forklift to take the tank to the shop where they cut it up. They then transported the pieces to Sunshine Steel. Because Corder worked on the property, they decided to use defendant's identification at Sunshine Steel. They were paid $900, which the three men split evenly. Corder felt bad and confessed. Although he did not want to identify anyone else, the detective already had defendant's identification from Sunshine Steel. Corder felt that defendant was trying to place the entire blame on Corder.

Defendant did not testify and called no witnesses.

DISCUSSION

I. Evidence of Accomplice's Prior ...


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