P. v. Bryan

Filed 3/2/06 P. v. Bryan CA6

Opinion received for posting 4/13/06

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Charles Benton Bryan, Jr., was convicted after jury trial of receiving stolen property (Pen. Code, § 496, subd. (a)).[1] In a bifurcated proceeding, the trial court found that defendant had served three prior prison terms (§ 667.5, subd. (b)). The court imposed a five-year prison sentence, suspended execution of the sentence, and placed defendant on probation for three years with various terms and conditions. On appeal defendant contends that his conviction is not supported by the evidence, and that CALJIC No. 2.15 is constitutionally deficient. For reasons we explain, we will affirm the judgment.

Defendant has also filed a petition for writ of habeas corpus, contending that he was deprived of his right to effective assistance of counsel, which we ordered considered with the appeal. We have disposed of the petition by separate order filed this day. (See Cal. Rules of Court, rule 24(b)(4).)

BACKGROUND

Defendant was charged by information filed September 24, 2002 with two counts of receiving stolen property (§ 496, subd. (a); counts 1 & 2), one count of receiving a stolen motor vehicle (§ 496d, subd. (a); count 3), and two counts of grand theft (§ 487, subd. (a); counts 4 & 5). The alleged victim in counts 1 and 5 was Dobler and Sons, Inc., and the alleged victim in counts 2 and 4 was Fred Willoughby Farms. The information further alleged that defendant had served three prior prison terms (§ 667.5, subd. (b)). Jury trial began on April 26, 2004. The court granted defendant's request to bifurcate trial on the alleged priors. At the close of the prosecution's case-in-chief, the court granted defendant's motion to dismiss counts 3, 4 and 5. (§ 1118.1.) On April 27, 2004, the jury found defendant guilty of count 1 and not guilty of count 2. On April 28, 2004, following a court trial, the court found the alleged prison priors to be true. On June 9, 2004, the court sentenced defendant to five years in state prison, suspended execution of sentence, and placed defendant on probation for three years with various terms and conditions, including that he serve 365 days in county jail.

The evidence presented at trial regarding the offense alleged in count 1 was as follows.

The prosecution's case

Steven Dobler has a farm in Moss Landing where he raises vegetables and strawberries. The aluminum irrigation pipes he uses in growing those crops costs $42 per joint, delivered, and weigh over 20 pounds. The pipes alone, without sprinkler heads, would cost about $20. When not in use, the pipes are stored in the main yard of the farm, in pipe trailers. The trailers hold between 180 and 200 joints each, and he had 11 or 12 trailers in the yard on Friday, May 31, 2002. The last time he bought pipe joints was over six years earlier, as it is a big purchase. The farm paints its irrigation pipes and sprinkler heads green, and puts a stamp in the metal with the initials â€