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The People v. Monty Costen

November 1, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MONTY COSTEN, DEFENDANT AND APPELLANT.



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

P. v. Costen CA3

NOT TO BE PUBLISHED

COPY

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Discussion

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, ...


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