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The People v. Chad Eric Owen

November 6, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CHAD ERIC OWEN, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F07487)

The opinion of the court was delivered by: Hoch , J.

P. v. Owen 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Chad Eric Owen of first degree burglary (Pen. Code, § 459)*fn1 and receiving stolen property (§ 496, subd. (a)). The trial court found that defendant had a prior serious felony conviction (§ 667, subds. (b)-(i); 1170.12) and three prior prison terms (§ 667.5, subd. (b)). In the interest of justice, the court dismissed one of the allegations of a prior prison term. The court sentenced defendant to 15 years in state prison.

On appeal, defendant contends the trial court erred by (1) refusing to instruct on the offense of being an accessory to a felony (§ 32), and (2) failing to find that defendant had an ability to pay the $702 cost of the presentence report prepared by the probation department.

We conclude that neither state nor federal law required the trial court to instruct on the lesser related offense of being an accessory to a felony. For lack of objection in the trial court, the issue of ability to pay has not been preserved for appeal, and the record provides no basis for concluding that defendant received ineffective assistance of counsel. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Prosecution Evidence

On October 6, 2009, Brian Clark saw a man lurking in front of the door to a residence on the corner of Tamarack Way and Romany Road in Sacramento. Clark also noticed a man sitting in a red truck that was parked across the street. The scene struck Clark as odd, and he continued to watch from his nearby office parking lot.

After a few minutes, Clark heard "a loud bang." The man who had been lurking outside the house was no longer visible. The driver of the truck (later identified as defendant) "appeared just to be looking around, looking." Clark walked toward the truck and attempted to write down its license plate number. Defendant saw Clark and "gestured" at him in a way that intimidated Clark. Clark walked away and called the police.

While awaiting the police, Clark saw the man who had previously been at the front door exit the house while carrying a large, flat-screen television. Defendant backed the truck into the driveway, and the man with the television placed it into the back of the truck. After returning into the house for a few minutes, the man got into the truck. Defendant then drove away.

Clark followed the truck in his own vehicle. The police soon pulled the truck over, and Clark identified the passengers as the individuals involved in the burglary. The police identified the driver as defendant and the passenger as Josh McCray.

The owner of the residence later identified as his the television in the back of the truck and a watch found in McCray's hand. The owner had not given defendant nor McCray permission to enter his house.

Defense Evidence

Defendant testified on his own behalf, stating that he had known McCray for 7 to 10 years. On October 6, 2009, McCray called defendant to ask him for a ride. At the ...


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