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The People v. Monty Costen


November 1, 2011


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

P. v. Costen CA3



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 09F06661)

Defendant was convicted by a jury of receiving stolen property (Pen. Code, § 496) and the trial court found he previously had been convicted of a serious felony within the meaning of the three strikes law (id. §§ 667, subds. (b)-(i), and 1170.12). Sentenced to the upper term of three years, doubled to six because of the prior strike, defendant appeals contending there is insufficient evidence to support the current conviction. We disagree and affirm.

Facts and Proceedings

On or about August 8, 2009, the home of J.W. was burglarized and a number of items were stolen, including a Kenneth Cole wristwatch. Between August 14 and August 17, 2009, the home of R.M. and T.G. was burglarized and several items, including a Fossil wristwatch, an Eddie Bauer wristwatch and various pieces of jewelry, were taken.

On August 23, 2009, Sergeant William Wann effected a traffic stop of a Ford Explorer driven by defendant. Defendant was searched and two watches were found in his pocket, the Fossil and the Eddie Bauer watches taken from the home of R.M. and T.G. In the console of the Explorer, officers found the Kenneth Cole watch taken from the home of J.W. and a plastic baggie containing jewelry taken from the home of R.M. and T.G. Defendant was charged with receiving stolen property and two prior serious felony convictions. The People later dismissed one of the priors. The jury returned a guilty verdict on the substantive offense and, after defendant waived a jury on the alleged prior, the court found it true. Defendant was thereafter sentenced as previously indicated.


Defendant's sole contention on appeal is that there is insufficient evidence to support his conviction for receiving stolen property. He argues the prosecution failed to prove either that the watches and jewelry seized at the time of the traffic stop were the same ones taken from the homes of the victims or that he knew the items in his possession had been stolen.

In reviewing the sufficiency of the evidence supporting a conviction, we view the evidence in the light most favorable to the prosecution and determine if a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) In making this determination, we consider the record as a whole, not isolated bits of evidence. (People v. Johnson (1980) 26 Cal.3d 557, 577-578.) Reversal on the basis of insufficient evidence is not warranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Redmond (1969) 71 Cal.2d 745, 755.)

"To sustain a conviction for receiving stolen property, the prosecution must prove: (1) the property was stolen; (2) the defendant knew the property was stolen . . .; and, (3) the defendant had possession of the stolen property." (People v Russell (2006) 144 Cal.App.4th 1415, 1425.)

Defendant's contention that the evidence is insufficient to prove the items seized from him were the same ones taken in the two burglaries is essentially a challenge to the chain of custody. Defendant acknowledges the watches and jewelry presented in court were the same items stolen in the burglaries. The victims so testified without equivocation. However, he argues, there is no evidence those were the same items seized from him at the time of the traffic stop.

Regarding the Kenneth Cole watch, defendant points out that Officer Marcus Frank found a Kenneth Cole watch in the console of the Explorer and turned it over to Sergeant Wann. Wann testified he later turned the watch and other items over to another police employee for booking. Neither Frank nor Wann could definitely identify the watch in court as the same one seized from defendant. The officer to whom the items had been given by Wann did not testify.

The same goes for the other stolen items. Defendant does not question that the items presented in court were the ones taken in the burglaries. He asserts instead the officers could not state definitively that the items presented in court were the ones seized from him.

Defendant's challenge to the chain of custody comes too late. That issue typically arises in connection with the admissibility of evidence. If defendant believed the watches and other items presented in court were not the items seized from him, it was incumbent upon him to object to the admission of such evidence as irrelevant. Instead, defendant did not contest at trial that the items presented were the same items seized from him but instead argued to the jury that those items were not the ones stolen from the victims. In other words, defendant argued the victims were mistaken in their testimony that the items seized from him were the same ones stolen in the burglaries. Because defendant failed to contest the chain of custody, the issue has been forfeited. (Evid. Code, § 353; People v. Baldine (2001) 94 Cal.App.4th 773, 779.)

Defendant argues no evidentiary objection was necessary, because he is not contesting that the items presented at trial were the items stolen from the victims. However, if defendant is now contending the items introduced at trial are not the ones found in his possession, then he is claiming the items presented at trial were not relevant to this prosecution. It would be as if the prosecution had introduced into evidence a computer that had also been stolen from J.W. in the first burglary even though no computer had been found in defendant's possession. Only items found in defendant's possession would be relevant to a prosecution for possession of stolen property.

Defendant next contends there is insufficient evidence he knew the items in his possession were stolen. Defendant argues that, when found in possession of the three watches, plus a fourth one on his wrist, "he provided only one explanation as to why he had four watches" and "[t]his explanation was never shown to be false or in doubt." Sergeant Wann testified that, when he asked defendant about the watches, defendant said one needed a battery and another he was going to try and sell at a flea market. Defendant further points to the fact he was hired by J.W. about a week after the first burglary to do some work on J.W.'s house and was given a key to the house, yet no items were stolen from J.W. thereafter. Further, at the time of the traffic stop, defendant was cooperative with the officers and did nothing to arouse suspicion.

Defendant contends his conduct was akin to that in People v. Russell, supra, 144 Cal.App.4th 1415, where the defendant was found in possession of a stolen motorcycle and claimed he thought it had been abandoned. The defendant in Russell never tried to hide the motorcycle, the motorcycle had the appearance of having been abandoned, and the defendant was cooperative with police officers. (Id. at pp. 1430-1431.) However, the issue in Russell was not whether substantial evidence supported a jury finding that the defendant knew the motorcycle was abandoned. The issue there was whether the trial court had a sua sponte duty to instruct on the defenses of mistake of fact and claim of right. The court analyzed the evidence to determine whether there was sufficient evidence to warrant such instructions. (Id. at p. 1431.) The fact that there is sufficient evidence to support a mistake of fact instruction does not negate that there is also substantial evidence to support the conviction.

"Knowledge that property was stolen seldom can be proved by direct evidence, and resort often must be made to circumstantial evidence." (In re Richard T. (1978) 79 Cal.App.3d 382, 388; see also People v. Vann (1974) 12 Cal.3d 220, 224.) Possession of recently stolen property raises a strong inference of the required knowledge, requiring only slight corroboration to support a finding of guilt. (People v. McFarland (1962) 58 Cal.2d 748, 754; People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574.) This slight corroboration "may consist of no explanation, of an unsatisfactory explanation, or of other suspicious circumstances that would justify the inference." (O'Dell, at p. 1575.)

Contrary to defendant's assertions, his explanation for possession of three watches in addition to the one he was wearing was not totally satisfactory. First, defendant's explanation addressed only two of the watches. Further, and more importantly, defendant provided no explanation for his possession of a baggie containing various items of jewelry. And defendant gave inconsistent explanations for where he was going, first indicating he was going to Home Depot to get supplies for a job, then saying he was going to a flea market to sell one of the watches, and finally saying he was going to Home Depot first and then to the flea market. Based on the totality of the circumstances, substantial evidence supports the jury's finding that defendant knew the watches and jewelry found in his possession were stolen.


The judgment is affirmed.

We concur: BLEASE , Acting P.J. MURRAY,J.


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