IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Colusa)
August 15, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
EMILIO NAVARRO VELAZQUEZ, DEFENDANT AND APPELLANT.
(Super. Ct. No. CR50025-2)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Velasquez
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Emilio Navarro Velazquez was convicted by a jury of receiving stolen property (Pen. Code, § 496) and was sentenced to state prison for the middle term of two years.*fn1
On appeal, defendant contends (1) the evidence is insufficient to support his receiving stolen property conviction, and (2) he is entitled to additional presentence conduct credits. We reject defendant's first contention. As to the second claim, we shall remand the matter to the trial court for further consideration as to defendant's eligibility for the new conduct credits.
In October 2008, Donald Rauch was an electrician living in a trailer in the town of Williams in Colusa County. Near the alley behind his trailer Rauch had a large spool of heavy-gauge wire cable. There was approximately 900 feet of cable on the spool, and the cable and spool weighed about 1,000 to 1,500 pounds. The cable was generic; however, it was not in general use by electricians in the county.
On October 29, around 10:00 p.m., Rauch returned home, parked his pickup next to the spool, and went into his trailer. When Rauch got up the next morning, he discovered the cable was missing from the spool. Rauch traced drag marks from the spool for about 200 feet down the alley where the drag marks ended and tire marks began. Rauch called the police.
Officer David Sores responded to Rauch's call, arriving at Rauch's trailer about 8:30 a.m. Rauch showed him the spool, the drag marks, and the tire marks. Based upon "some information" that Officer Sores received, he drove to defendant's residence, which was about one mile from Rauch's trailer. As Officer Sores drove by defendant's residence, he saw a pickup with defendant and the co-defendant behind it doing something with their hands.
Because Officer Sores knew from past experience that defendant spoke mostly Spanish, he drove around the corner and called for Officer Daniel Mata, who spoke Spanish. Officer Mata arrived about five minutes later and the two contacted defendant and the co-defendant. Behind the pickup was copper wire which had been stripped of its sheathing.
Officer Mata asked defendant what he was doing, and defendant responded that he was "cutting the rubber off" the wire. Defendant said that he had loaned the pickup to a friend, one Surilio, the previous night and that when Surilio returned the pickup in the morning, the wire was in it. Defendant did not know Surilio's last name, he did not know where Surilio lived, and he did not know why Surilio had brought him the wire.
Rauch was brought to defendant's residence, he identified the wire as his and the wire was returned to him.
Neither the defendant nor the co-defendant testified.
Defendant contends the evidence is insufficient to prove that at the time he possessed the cable he knew it was stolen. We disagree.
"'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
"'[P]roof of the crime of receiving stolen property requires establishing that the property in question was stolen, that the defendant was in possession of it, and that the defendant knew the property to be stolen.'" (People v. Reyes (1997) 52 Cal.App.4th 975, 984, fn. omitted.)
Defendant does not challenge either that the wire was stolen or that he possessed it. His sole argument is directed to his claim that he lacked knowledge that the wire was stolen. Thus, he argues: "The prosecution failed . . . to establish with substantial evidence that when possessing the cable wire appellant knew that it was stolen. It is undisputed that appellant made no attempt to hide his possession of the cable. He was openly stripping the rubber coating from it while it was in his pick up [sic] which was parked on the street in front of his apartment. Moreover, appellant continued stripping the cable after Officer Sores drove by in his marked patrol car. He made no effort to conceal his actions even after becoming aware of the police officer's presence. This was hardly the behavior of someone who knew that the property he was in possession of was stolen. Finally, appellant was forthright in his answers to Detective Mata's questions. He told him what he was doing and how he came to possess the cable."
Defendant's argument is one for the jury, not for an appellate court which, as noted above, views the evidence in the light most favorable to the judgment.
What defendant's argument lacks is a credible explanation as to how he came into possession of the wire. According to defendant, during the evening of October 29, 2008, he loaned his pickup to Surilio, whose last name and address defendant did not know. Surilio then left without telling defendant anything about the wire. The obvious question that arises, and one which must have occurred to the jurors who are presumed to be intelligent persons (People v. Guerra (2006) 37 Cal.4th 1067, 1148), is why would defendant be stripping wire which did not belong to him and which had been left with him a very short time earlier by a virtual stranger and for some unknown purpose. A reasonable inference from such circumstances, and one the jury presumably drew, is that defendant knew the wire was stolen and he was stripping it for the purpose of obtaining the copper therein to sell. As to his continued stripping of the cable while in the presence of the peace officer, he could hardly have quit and run.
In addition to defendant's failure to explain why he was stripping the wire, he was in possession of recently stolen property, a circumstance suggesting he knew the property was stolen. (See People v. Odell (2007) 153 Cal.App.4th 1569, 1574 ["[p]ossession of recently stolen property itself raises a strong inference that the possessor knew the property was stolen; only slight corroboration is required to allow for a finding of guilt"].)
Consequently, defendant's recent possession of the stolen cable, coupled with his absurd explanation as to how he came to possess it, constitutes substantial evidence supporting his guilt of receiving stolen property.
On November 4, 2009, defendant was sentenced to two years in prison. He was awarded 93 days of presentence custody credit consisting of 62 days of actual time and 31 days for good conduct. On April 7, 2010, citing this court's decision in People v. Brown (2010) 182 Cal.App.4th 1354 (rev. granted June 9, 2010 (S181963)), appellate counsel sent the trial court a letter requesting the court grant him retroactive application of the increased rate for calculating conduct credits provided by the new amendment to section 4019 (Sen. Bill No. 3x 18 (2009-2010 3d Ex. Sess.; Stats. 2009, ch. 28, § 50), effective January 25, 2010 (the January 25 amendment). On April 26, the trial court denied the request, stating that because a petition for review in Brown had been filed in the Supreme Court it would at that time be premature to act on the request.
Defendant again seeks the retroactive application of the January 25 amendment. We conclude this amendment applies to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment lessening punishment applies to acts committed before its passage if conviction is not final]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment allowing custody credits]; People v. Doganniere (1978) 86 Cal.App.3d 237 [similar].) However, because the record is not clear as to whether defendant is a member of the class of prisoners eligible for the increased calculation rate, we shall remand the matter to the trial court for such determination.
The matter is remanded to the Colusa County Superior Court with directions to award defendant an additional 31 days of presentence conduct credit unless the court determines defendant is required to register as a sex offender or has been convicted of a violent or serious felony pursuant to Penal Code sections 667.5, subdivision (c) or 1192.7, subdivision (c). If defendant is eligible, the trial court is to prepare an amended abstract of judgment reflecting the modification and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: NICHOLSON , J. MAURO , J.