P. v. Fugate

Filed 6/8/07 P. v. Fugate CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND E. FUGATE,
Defendant and Appellant.
D048422
(Super. Ct. No. SCN197102)
APPEAL from a judgment of the Superior Court of San Diego County,
Timothy M. Casserly, Judge. Affirmed.
Raymond E. Fugate was arrested and his van was impounded. Upon his release
from jail Fugate broke into the impound yard where his van was held and took the van.
While in the impound yard Fugate broke into three other vehicles in the yard and took a
number of valuables from those vehicles. A few days later sheriff's deputies found
Fugate and his van. The items taken from the other vehicles in the impound yard were in
Fugate's van. Fugate was convicted of two counts of grand theft, one count of petty theft

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and one count of trespass with the intent to interfere with a lawful business. The trial
court sentenced him to two 6-year sentences on the grand theft charges and two 180-day
sentences on the petty theft and trespass charges. The court ordered that all sentences run
concurrently.
On appeal we find with respect to both grand theft convictions there was
substantial evidence the value of the items appellant stole was in excess of $400. We
also find there was substantial evidence appellant broke into the impound yard with the
intent to interfere with the business of the towing company. Because each theft
conviction was related to a separate vehicle from which appellant took valuables, the trial
court could impose sentence on each of the three theft convictions. Finally, in light of
appellant's concession he suffered eight prior convictions for which probation was not
available, the trial court did not infringe upon his Sixth Amendment rights in imposing
the upper term on the grand theft convictions.
FACTUAL AND PROCEDURAL BACKGROUND
At 1:30 a.m. on the morning of July 2, 2005, appellant was arrested by a San
Diego County Sheriff's Deputy. At the time of the arrest the deputy arranged to impound
appellant's van. Appellant was released from jail at some point before 8 a.m. on July 2,
2005, and appeared at the towing yard where his van was impounded.
Appellant asked a tow truck driver who was at the yard for access to his van so he
could retrieve some tools. The tow truck driver told appellant he would have to make
arrangements with the company's main office to retrieve any items from his van.

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Early in the morning of July 3, 2005, another tow truck driver arrived at the
towing yard and discovered someone had broken into the yard. Appellant's van was
missing as was property from other cars stored at the lot. Further inspection by another
employee of the towing company revealed barbed wire had been detached from the chain
link fencing which surrounded the yard and bolts had been taken off interior and exterior
gates in the yard.
On July 7, 2005, sheriff's deputies responded to the report of a suspicious person
working on a disabled car in the street. The deputies found a sedan which had parts laid
out around it parked near appellant's van. Upon inspection, the deputies found appellant
crouched in his van and a number of the items reported stolen from the cars stored at the
towing yard in the van.
Appellant was charged by information with two counts of grand theft, one count of
receiving stolen property, one count of petty theft and one count of trespass with intent to
interfere with a business.
At trial the prosecution supported its case as to the first count of grand theft with
the testimony of Samuel Cardenas. Cardenas owned a car which was impounded at the
towing yard and from which a JVC stereo receiver, an MTX amplifier and Eclipse 12-
inch speaker was stolen. Cardenas testified it would cost between $530 and $680 to
replace the stereo receiver, amplifier and speaker. Cardenas testified he believed it would
cost between $80 and $100 to replace the receiver, between $100 to $300 to replace the
amplifier and between $300 and $400 to replace the speaker. Cardenas testified that
although the receiver was his, he borrowed the amplifier and a speaker from a friend.

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They went out the night before the car was impounded and plugged his friend's amplifier
and speaker into his stereo. According to Cardenas he was with his friend a year earlier
when his friend bought the speaker and his friend told him it cost $400. Cardenas
testified his estimates were based on what he saw in stores.
In addition to Cardenas's testimony, the prosecution presented testimony from a
sheriff's detective who went to a number of stereo stores in the area and priced the
receiver, amplifier and speaker. The detective testified the retail price of the receiver was
between $85 and $120. The detective was unable to find a retail price for the amplifier,
but located a wholesale price for it of $135. The detective testified the retail cost of the
speaker was likely $299 because the detective believed it had a brushed aluminum cone
rather than a plastic cone.
Although the console in Cardenas's car was stolen, the prosecution did not offer
any evidence as to its value.
As to the second count of grand theft, the prosecution presented testimony from
Billy Norman. Norman testified he was in the auto parts business for 50 years and he
stored seven nearly complete Laforza SUV's at the towing yard. The SUV's were stored
at the towing yard until American-made engines could be installed in them. Two leather
seats, a steering wheel and floor mats were taken from the Laforza SUV's and found in
appellant's van. Norman valued the seats, steering wheel and mats at $1,000. Norman
stated that if he were selling the leather seats, he would ask for between $1,500 and
$1,800 and his price would be based on the fact he just sold a pair of General Motors
seats, which were not leather, for between $1,300 and $1,350.

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In support of the petty theft charge, the prosecution presented testimony from
Jorge Castillo. Castillo's car was also impounded at the towing yard on the morning of
July 3, 2005. Castillo's immigration papers, a bottle of whiskey and a CD case holding
between 30 and 40 CD's were stolen from Castillo's car. Sheriff's deputies found the
whiskey bottle outside the sedan appellant was working on at the time of his arrest; the
deputies found the immigration papers and CD case and CD's in appellant's van. Castillo
valued the whiskey, CD case and CD's at between $180 and $195.
An employee of the towing company testified it cost $250 to repair the fencing
and gates damaged when appellant broke into the yard and took his van. The employee
also testified that at a minimum it would have cost appellant $206 to get his van released
from the tow yard.
The jury found appellant guilty on all counts except for the allegation he received
stolen property. As to that count he was found not guilty. As to each count of grand
theft, appellant was sentenced to the upper term of three years, which, because of prior
strikes, was doubled to six years. The trial court sentenced appellant to 180 days for each
of the two misdemeanor counts. As we indicated at the outset, the trial court ordered that
all the sentences run concurrently.
DISCUSSION
I
In his principal argument on appeal, appellant contends the prosecution did not
present sufficient evidence the value of the items which were the subject of his grand

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theft convictions exceeded $400, the statutory minimum for that crime. (Pen. Code,1
§ 487, subd. (a).) Our review of the record discloses the prosecution's evidence was
sufficient to sustain both grand theft convictions.
It is axiomatic that "[i]n addressing a challenge to the sufficiency of the evidence
supporting a conviction, the reviewing court must examine the whole record in the light
most favorable to the judgment to determine whether it discloses substantial
evidence−evidence that is reasonable, credible and of solid value−such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The
appellate court presumes in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence. [Citations.] . . . ' "If the circumstances
reasonably justify the trier of fact's findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment. [Citation.]" ' [Citation.]" (People v. Kraft (2000) 23
Cal.4th 978, 1053-1054.)
Here, the value element of the crime of grand theft is set forth in section 487,
which provides in pertinent part: "Grand theft is theft committed . . . [¶] (a) When the
money, labor, or real or personal property taken is of a value exceeding four hundred
dollars ($400)." For purposes of applying section 487, subdivision (a), value is
determined by ascertaining "the reasonable and fair market value" of the property
obtained. (§ 484, subd. (a).) " '[F]air market value' means the highest price obtainable in
1 All further statutory references are to the Penal Code unless otherwise specified.

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the market place rather than the lowest price or average price. [T]he 'fair market price' is
the highest price obtainable from a willing buyer by a willing seller, neither of whom is
forced to act. It is not the highest price in the market but the highest price a willing buyer
and a willing seller will arrive at." (People v. Pena (1977) 68 Cal.App.3d 100, 104; see
also CALJIC No. 14.26.)
In general, when new items have been stolen, their value can be established by
simple reference to their retail price. (See People v. Tijerina (1969) 1 Cal.3d 41, 45;
People v. Cook (1965) 223 Cal.App.2d 435, 438.) Establishing the value of used items
can be somewhat more difficult. In People v. Haney (1932) 126 Cal.App. 473 the
defendant and a confederate stole horse riding equipment which the owner valued at
slightly above the then-applicable $200 minimum value for grand theft. The court found
the owner's testimony as to value of the equipment was sufficient to support the
defendant's grand theft conviction. The court stated: "The owner of personal property
who is familiar with its original cost and use is qualified to testify regarding its value,
independently of his knowledge of recent sales of similar second-hand property.
[Citations.] [¶] . . . [¶]
"In the present case Mr. Flournoy testified that he was the owner of the stolen
property and knew the approximate value thereof, although he had not known of recent
sales of such second-hand property in that vicinity. He said: 'Any farmer has . . . some
idea of the value of harness and other property on the ranch, or he would not be able to do
business.' He testified that the saddle cost him $104, but fixed the value $75. He
estimated the aggregate value of the stolen articles at $240. This does not seem

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unreasonable. A harness-maker of Alturas, who examined most of the stolen articles,
estimated their aggregate value at slightly less than $200. He thought the saddle was
worth only about $50. The testimony of Flournoy regarding the value of the stolen
property was competent to be considered by the jury. The question of the actual value of
the property was a problem for the determination of the jury. The jury found the
appellant guilty of grand theft. By implication, we must assume, the jury thought the
stolen property worth in excess of $200. The evidence is ample to support this finding."
(People v. Haney, supra, 126 Cal.App. at pp. 475-476.)
In contrast, in People v. Simpson (1938) 26 Cal.App.2d 223 the defendant stole 12
magnetos from a group of used tractors the owner purchased as used equipment. The
prosecution presented evidence from a number of witnesses, including the owner of the
tractors. The prosecution witnesses placed a value on the used magnetos which exceeded
the then-applicable $200 minimum value for grand theft. However, the prosecution
witnesses assumed the magnetos were in working order. The defense presented
witnesses who placed the value of the magnetos below $200. There was no dispute that
in order to determine whether the magnetos were in working order they would have to be
disassembled and inspected. None of the witnesses had disassembled the magnetos to
determine whether they were in working order. In light of this defect in the record, as
well as the erroneous admission of the cost of reinstalling the magnetos, the Court of
Appeal found there was insufficient evidence the value of the magnetos exceeded the
statutory minimum. (People v. Simpson, supra, 26 Cal.App.2d at pp. 228-229.)

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In People v. Coleman (1963) 222 Cal.App.2d 358, 361, the defendant stole tools
from the trunk of a car. The owner of the tools testified he recently paid $600 for some
of the tools and was still making payments on the other tools. Because the owner
recently purchased the tools and was familiar with their use, the court found the owner's
testimony was sufficient to establish a value in excess of the $200 statutory minimum.
(Id. at p. 36.)
Here, the information Cardenas and the sheriff's detective provided gave the jury a
sufficient basis upon which it could conclude the value of the items stolen from
Cardenas's car exceeded $400. Cardenas's testimony as to the fact the stereo equipment
was plugged in on the night before his car was impounded permitted the jury to infer the
equipment was working at the time it was stolen. Thus, this is not the case, as in People
v. Simpson, where additional information as to the condition of the property was needed
to determine its value. Cardenas and the detective further provided evidence which
supported the conclusion the retail price of the equipment ranged from $600 to $800.
Given that range for the retail price of new stereo equipment, the jury could reasonably
conclude a buyer of the used equipment which was in Cardenas's car would be willing to
pay an amount in excess of $400 for it. In this regard we reject appellant's suggestion the
prosecution was required to produce evidence of a market in used stereo equipment.
Rather, the prosecution met its burden by producing evidence of the retail value of the
equipment and its general condition. From those facts the jury could determine whether,
as used equipment, the property in question exceeded the statutory minimum. (See
People v. Haney, supra, 126 Cal.App. at pp. 475-476.) In this regard we note the jury

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was not required to determine the precise value of the property, but only whether its value
exceeded $400. (Ibid., see also CALJIC No. 14.21.)
The same is true with respect to the testimony Norman provided. First, we note
the seats stolen from his vehicles were not used seats but in fact new seats, which were
still in their plastic wrapping. We also note Norman had recently sold what Norman
believed were less desirable seats for far in excess of the statutory minimum. Given this
evidence the jury could easily conclude the value of the seats alone exceeded $400.
In sum then there was sufficient evidence to support appellant's grand theft
convictions.
II
Relying on section 654,2 appellant argues sentencing should have been stayed as
to two of his three theft convictions. We find no error.
Where a defendant is guilty of similar and related crimes committed over a short
period of time but nonetheless entertained multiple intents and purposes, sentencing may
be imposed on each crime. (See People v. Nubla (1999) 74 Cal.App.4th 719, 730-731.)
Although in cases where property crimes have been committed, the court has applied
section 654 more liberally (see People v. Bauer (1969) 1 Cal.3d 368, 378), where, as
here, the defendant made a distinct effort with respect to distinct victims, punishment
2 Section 654 states in pertinent part: "An act or omission that is made punishable
in different ways by different provisions of law shall be punished under the provision that
provides for the longest potential perm of imprisonment, but in no case shall the act or
omission be punished under more than one."

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may be imposed as to each victim. In People v. James (1977) 19 Cal.3d 99, 119, the
defendant burgled three separate offices in a single building. In holding the defendant
could be punished for each burglary, the court stated: "Here defendant forcibly broke
into three different rented premises occupied by tenants who had no common interest
other than the fortuitous circumstance that they happened to lease office suites in the
same commercial building. There is no doubt that if the premises had been located in
three separate buildings, defendant could have been punished for three separate
burglaries; he is not entitled to two exempt burglaries merely because his victims chose
the same landlord. If the rule were otherwise, a thief, who broke into and ransacked
every store in a shopping center under one roof, or every apartment in an apartment
building, or every room or suite in a hotel, could claim immunity for all but one of the
burglaries thus perpetrated. Nothing in the statute or case law on multiple punishment
compels such an incongruous result." (Ibid., fn. omitted.)
The facts here are similar to those discussed in People v. James. Appellant
entered one towing yard and then proceeded to break into three separate vehicles and
steal items from each of the three vehicles. The vehicles were owned by separate victims
and the victims had nothing in common other than the fact their vehicles were stored at
the towing yard. If the three vehicles had been parked on the street instead of in the
towing yard, there is no doubt appellant could have been punished for three thefts; like
the defendant in People v. James, appellant is not entitled to an exemption for two of the
thefts because his victims' vehicles happened to be parked in the same towing yard.

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III
Appellant contends there is insufficient evidence he was guilty of violating section
602, subdivision (k).
A trespass in violation of section 602, subdivision (k), is committed by "[e]ntering
any lands, whether unenclosed or enclosed by fence, for the purpose of injuring any
property or property rights or with the intention of interfering with, obstructing, or
injuring any lawful business or occupation carried on by the owner of the land, the
owner's agent or by the person in lawful possession." Here the record shows appellant
broke fencing going into the towing yard and the gate on his way out. Because one of his
obvious purposes was to retrieve his car, which was locked in the yard, it is clear that at
the time he entered the yard he intended to break out of it with his car. That intention and
the property he damaged were sufficient to sustain his trespass conviction.
IV
Finally, appellant argues that in sentencing him to the upper term on the theft
convictions the trial court violated appellant's Sixth Amendment right to a jury trial.
The record discloses appellant admitted he suffered eight prior felony convictions.
In sentencing appellant to the upper term, the trial court made the following statement: "I
do find under rule 4.421 (b)(2) the defendant's prior convictions as an adult are
numerous. Under rule (b)(3), the defendant has served several prior prison terms, and
under (b)(5) the defendant's past performance on probation and parole have been
unsatisfactory. Any one of those factors would be sufficient to outweigh the lack of any
mitigating factors, thus justifying the upper term in this case." Although the jury did not

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make any findings with respect to appellant's prior record, in sentencing appellant the
trial court was free, as it did, to nonetheless rely on appellant's recidivism without
offending the appellant's right to a jury trial. California courts and courts from other
jurisdictions have repeatedly held that in sentencing a defendant a trial judge may
consider prior convictions and this exception to what is otherwise required by the Sixth
Amendment " 'is not limited simply to the bare fact of a defendant's prior conviction'
[citation], but applies to 'matters involving the more broadly framed issue of
"recidivism." ' " (People v. Banks (2007) 149 Cal.App.4th 969, 973; see People v.
McGee (2006) 38 Cal.4th 682, 706-707; People v. Waymire (2007) 149 Cal.App.4th
1448, 1455-1456; People v. Thomas (2001) 91 Cal.App.4th 212, 221; United States v.
Cordero (5th Cir.2006) 465 F.3d 626, 632-633; United States v. Corchado (10th Cir.
2005) 427 F.3d 815, 820; United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142
.) In particular, in McGee the California Supreme Court specifically rejected attempts to
narrow this exception "in advance of such a decision by the [United States Supreme
Court]." (People v. McGee, supra, 38 Cal.4th at p. 709.)
Moreover, even if we believed the Sixth Amendment required the jury to consider
appellant's prior record, given that prior record, including in particular eight prior
convictions which appellant admitted, any error would have been harmless beyond a
reasonable doubt. (See Washington v. Recuenco (2006) 548 U.S. ___ [126 S.Ct. 2546];
see also People v. Lozano (May 18, 2007, B189649) ___ Cal.App.4th ___ [2007 WL
1453756].)

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Judgment affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.

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