P. v. Majewski

 

 

 

 

 

 

 

 

Filed 11/12/13  P. v. Majewski 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Shasta)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   SHAWN MICHAEL MAJEWSKI,                           Defendant and Appellant.

C071314   (Super. Ct. No. 11F5266)

 

 

 

 

            name="_BA_ScanRange">After a bench trial at which href="http://www.mcmillanlaw.com/">documentary
evidence only was presented, the trial court convicted
defendant Shawn Michael Majewski of seven counts of second degree burglary ( ADDIN BA xc <@st> xl 16 s
DGMINM000001 xpl 1 l "Pen. Code, § 459"
Pen. Code, § 459; counts 1, 2, 3, 5, 6,
13, 14)href="#_ftn1" name="_ftnref1" title="">[1] and three counts of petty theft, a
misdemeanor (
ADDIN BA xc <@osdv> xl 5 s DGMINM000014 xpl 1 l "§ 488" § 488; counts 4, 7, 8), and found a strike prior ( ADDIN BA xc <@osdv> xl 9 s
DGMINM000015 xpl 1 l "§ 1170.12" § 1170.12) to be true.

            Sentenced to href="http://www.fearnotlaw.com/">state
prison, defendant appeals.  He contends (1) insufficient evidence
supports his conviction on counts 5, 6, 7, 8, and 13; and (2) the single
larceny doctrine applies to bar his conviction on count 7 or 8.  We reject defendant’s contentions and will
affirm the judgment.

FACTS

Counts 1 and 2

            On September 10, 2010, employees at Strange and Son Fencing (SSF)
locked up the business for the weekend. 
At 10:49 a.m. on September 11, 2010, the security company called an SSF
employee to notify him that the alarm at the business had been triggered, but the
employee missed the call.  About 1:30 p.m. on September 12, 2010, the SSF employee went to the business and
discovered that the alarm had been triggered, two holes had been cut in the
perimeter fence, windows on two work trucks had been forced open, and a cell
phone had been taken.  Defendant’s
fingerprints were found on the windows of both trucks.  Defendant was not an SSF employee and had no
permission to be near the trucks.

Counts 3

            On September 4, 2010, Rodney Rogers,
who had parked and left his truck in front of a repair shop the day before,
found that someone had entered the unlocked camper shell, pried open the rear
sliding window of the truck, and stole a pair of binoculars and some
change.  Defendant’s palm prints and
fingerprint were found on the rear sliding window of the truck.  Ten months later when defendant was
interviewed, he did not recall breaking into the truck or taking the binoculars
but thought he could be responsible because he was “ ‘doing some stupid shit’ ”
at the time.

Count 4

            On September 18, 2010, a Crown Motors employee discovered an
unlocked vehicle in the rear maintenance lot with a broken windshield.  Several  items were missing, including a GPS unit, bank
checks, and hand tools.  DNA in blood
found on the vehicle’s center console matched defendant’s DNA.  Ten months later when defendant was
interviewed, he admitted that he might have taken the GPS unit but not the
checks.

Counts 5, 6, 7, 8, and 13

            Sometime between 9:00 p.m. on October 17, 2010, and the morning of October 18,
2010, a locked
facility at Oasis Auto Repair was broken into. 
The front passenger window of a Volkswagen Beetle was broken and a cell
phone accessory was stolen (count 5).  A
window of a Volkswagen Jetta was broken but nothing was taken (count 6).  About $4 in change was missing from an
unlocked Volkswagen van (count 7).  A
beach towel, sunglasses, and jumper cables were taken from an unlocked Volkswagen
Passat (count 8).  The driver’s side
front door wing vent on an Isuzu Trooper was broken (count 13).  Within the storage compound behind the rear
door of the shop but outside the business, defendant’s fingerprint was found on
a glass bottle containing cigarette butts. 
Numerous cigarette butts were found on the ground near the bottle.  The owner of the business believed that the
bottle had been recently overturned in search of a cigarette butt with some
tobacco remaining.  In the storage yard,
defendant’s palm print was found on the sliding window of a Volkswagen
Bus.  There was no evidence as to how
long the Bus had been parked at Oasis. 
Defendant was not charged with any crime related to the Bus, but it was
parked near the other cars being repaired that were the subject of the charges.

            About nine months later when
defendant was interviewed, defendant stated that he had already been prosecuted
for the Oasis burglary.  Defendant had
been convicted of a vehicle burglary at another location, and a burglary that
occurred at Oasis in September 2010 had been dismissed.  Though he initially claimed he was there on
only one occasion, defendant ultimately admitted that he had been at Oasis on
two occasions.

Count 14

            Sometime between 4:00 p.m. on October 20, 2010, and 7:00 a.m. on October 21, 2010, defendant broke into the rear windows of
three vehicles parked at a Midas Auto Repair. 
Several items were missing from one of the vehicles, including two
television screens, a DVD player, and a GPS unit.  Defendant’s palm prints were found on the
“vehicles” but the documentary evidence did not clearly state which vehicle.

            Nine months later when defendant was
interviewed, he initially denied breaking into vehicles at Midas but admitted
he probably walked through the lot.  When
confronted with evidence of his prints on the vehicles, defendant thought it
was possible he “ ‘tried’ ” but it was also possible the windows were broken
and he “ ‘leaned in to check.’ ”

            Defendant stated that he “possibly”
took property from the various car burglaries to his transient camps.  He admitted that he had broken into “ ‘[l]ess
than 50’ ” vehicles.

DISCUSSION

I

            Defendant contends insufficient
evidence supports his convictions for the burglaries (counts 5, 6, and 13) and
petty thefts (counts 7 and 8) at Oasis Auto Repair.  We conclude sufficient evidence supports his
convictions.

            In
reviewing an insufficient evidence claim, we review the whole record in
the light most favorable to the judgment and determine whether any reasonable
trier of fact could find the prosecution proved its case beyond a reasonable
doubt.  We do not reweigh the evidence.  ( ADDIN BA xc <@cs> xl 43 s
DGMINM000002 xhfl Rep xpl 1 l "People v.
Rodriguez(1999) 20 Cal.4th 1"
People v. Rodriguez (1999)
20 Cal.4th 1, 11.)

            Here, defendant’s palm print on the
Volkswagen Bus and his fingerprint on a bottle of discarded cigarette butts
showed that defendant had been to Oasis.  Defendant admitted that he had been to Oasis
on two occasions.  When defendant was prosecuted
for a burglary at another location, a September burglary at Oasis had been
dismissed.  As the trial court
determined, the bottle appeared to the shop owner as having been recently
overturned since there were cigarette butts on the ground near the bottle.  The trial court observed that defendant was
homeless and living in a transient camp, and that homeless and street people
often look for cigarettes that are not completely smoked.  The fact the bottle had been overturned recently
was circumstantial evidence that defendant left his palm print on the
Bus and fingerprint on the bottle on October 17.  On October 21, 2010, at Midas,
defendant’s palm print was found on a car, windows on three cars had been
broken, and property was taken from one. 
Defendant committed the Midas burglary in a nearly identical way and
within days of the October burglaries/petty thefts at Oasis.  Further, defendant admitted that he had
broken into “ ‘[l]ess than 50’ ” cars.

            We reject defendant’s claim that one
reasonable interpretation of the evidence is that he left his palm print on the
Volkswagen Bus and fingerprint on the bottle on another occasion when he was at
Oasis.  “ ‘ “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.]” ’ ”  ( ADDIN BA xc <@cs> xl 43 s
DGMINM000003 xhfl Rep xpl 1 l ">People v. Kraft(2000)
23 Cal.4th 978" People
v. Kraft (2000) 23 Cal.4th 978, 1054.) 
Sufficient evidence supports defendant’s convictions for the burglaries
and petty thefts at Oasis.

II

            Defendant contends the single
larceny doctrine bars his conviction on count 7 or count 8.  We disagree.

            The single larceny doctrine
“provides that when property properly belonging to different persons is taken
at the same time and place, only one larceny will lie for the taking.”  ( ADDIN BA xc <@cs> xl 55 s
DGMINM000004 xhfl Rep xpl 1 l ">People v. Marquez(2000) 78 Cal.App.4th 1302" People
v. Marquez (2000) 78 Cal.App.4th 1302, 1308-1309 ( ADDIN BA xc <@$cs> xl 7 s
DGMINM000004 xpl 2 Marquez).)

            Defendant was convicted of two
counts of petty theft on October 17.  He
took $4 in change from an unlocked Volkswagen van belonging to Phillip Reedy (count
7) and a beach towel, sunglasses, and jumper cables from a Volkswagen Passat belonging
to Raelyn Haselhuhn (count 8).  As
relevant here, the elements of petty theft require that the defendant take
possession of property of any value, no matter how slight, owned by someone
else, without the owner’s consent and with the intent to permanently deprive
the owner of the property.  ( ADDIN BA xc <@osdv> xl 5 s
DGMINM000016 xpl 1 l "§ 484" § 484;  ADDIN
BA xc <@cs> xl 48 s DGMINM000005 xhfl Rep xpl 1 l "People v.
Williams(1946) 73 Cal.App.2d 154"
People
v. Williams (1946) 73 Cal.App.2d 154, 157;  ADDIN
BA xc <@trt> xl 16 s DGMINM000006 xpl 1 l "CALCRIM No. 1800" CALCRIM No. 1800.)  Although defendant’s takings of personal
property from the victims’ vehicles occurred at Oasis Repair during the same
time, defendant took property from two victims and each separate taking
required his intent to permanently deprive that victim of his or her property.

            Defendant misplaces his reliance
upon several cases.  In  ADDIN
BA xc <@cs> xl 35 s DGMINM000007 xhfl Rep l "People v.
Bauer(1969) 1 Cal.3d 368"
People
v. Bauer (1969) 1 Cal.3d 368, the defendant entered a home shared by
several elderly women, tied them up, and stole several items, including a car
in the garage.  ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 372.)   ADDIN
BA xc <@$cs> xl 5 s DGMINM000007 Bauer held
that  ADDIN BA xc <@osdv> xl 11 s
DGMINM000017 l "section 654" section 654 barred punishment for both
robbery and car theft.  ( ADDIN BA xc <@$id> xl 18 s ID
xhfl Rep xpl 1 Bauer,
at pp. 375-378.)  Although the single
larceny doctrine applies to bar conviction, not punishment,  ADDIN
BA xc <@$cs> xl 5 s DGMINM000007 Bauer
discussed the doctrine, noting that the theft of several items at the same
time, even from different owners, constitutes one offense.  ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id. at
p. 378.)  Here, defendant’s thefts did
not occur simultaneously.

             ADDIN
BA xc <@cs> xl 36 s DGMINM000008 xhfl Rep l "People v.
Smith(1945) 26 Cal.2d 854"
People
v. Smith (1945) 26 Cal.2d 854 held that the defendant could be
convicted of only one count of receiving stolen property for receipt in a
single transaction property stolen from three different victims.  ( ADDIN BA xc <@$id> xl 19 s ID
xhfl Rep xpl 1 Id. at
pp. 855, 859.)   ADDIN
BA xc <@$cs> xl 5 s DGMINM000008 Smith
noted that the gist of receiving stolen property is the purchase or receipt of
the stolen goods with guilty knowledge and that the “particular ownership of
the goods is not an element of the crime.” 
(
ADDIN BA xc <@$id> xl 13 s ID xhfl Rep xpl 1 Id. at
p. 859.)  The offenses here were not
receiving stolen property but instead petty theft, which requires a defendant’s
intent to permanently deprive the owner of property.   ADDIN
BA xc <@$cs> xl 5 s DGMINM000008 Smith does
not assist defendant.

             ADDIN
BA xc <@$cs> xl 35 s DGMINM000004 xhfl Rep Marquez,
supra, 78 Cal.App.4th 1302 held
that only one robbery against a single victim occurred where the defendant
robbed a waitress of both her tip money and the restaurant’s money from the
register.  ( ADDIN BA xc <@$id> xl 31 s ID
xhfl Rep xpl 1 Id.
at pp. 1304-1305, 1308-1309.)   ADDIN
BA xc <@$cs> xl 7 s DGMINM000004 Marquez
is inapplicable since there are two victims here. 

            In  ADDIN
BA xc <@cs> xl 41 s DGMINM000009 xhfl Rep l "People v.
Gardner(1979) 90 Cal.App.3d 42"
People
v. Gardner (1979) 90 Cal.App.3d 42, the defendant and his accomplice
entered private property, shot five domestic hogs, and carried away the
carcasses.  ( ADDIN BA xc <@$id> xl 16 s ID
xhfl Rep xpl 1 Id. at
pp. 45-46.)  The defendant was convicted
of several crimes, including four counts of grand theft.  ( ADDIN BA xc <@$id> xl 12 s ID
xhfl Rep xpl 1 Id. at
p. 45.)   ADDIN
BA xc <@$cs> xl 7 s DGMINM000009 Gardner
held that three of the four counts of grand theft had to be reversed
because “in carrying out the single purpose and objective of wrongfully
removing the hogs slain during the brief hunting episode, the defendant
executed but one contemporaneous general plan and intention.”  ( ADDIN BA xc <@$id> xl 17 s ID
xhfl Rep xpl 1 Id. at
p. 48; see id. at p. 46.)   ADDIN
BA xc <@$cs> xl 7 s DGMINM000009 Gardner
is factually distinguishable here because defendant entered two different cars
with the intent each time to steal personal property belonging to the owner of
that particular vehicle.  Thus, defendant
committed separate acts.

            In  ADDIN
BA xc <@cs> xl 37 s DGMINM000010 xhfl Rep l "People v.
Bailey(1961) 55 Cal.2d 514"
People
v. Bailey (1961) 55 Cal.2d 514 ADDIN BA xc <@$cs> xl 6 s
DGMINM000010 xpl 1 , the defendant was convicted of grand theft
of county welfare funds under false pretenses over 18 months, during which she
received several payments from the same county. 
 ADDIN BA xc <@$cs> xl 6 s DGMINM000010
Bailey
approved of aggregating the value of the items taken from a single victim
in a series of petty thefts where the takings are part of one general intent or
single plan in order to determine the degree of theft.  (Id. at
pp. 515, 518-519.)

            Applying  ADDIN
BA xc <@cs> xl 53 s DGMINM000011 xhfl Rep l "Bailey, People v.
Carrasco(2012) 209 Cal.App.4th 715"
Bailey,
People v. Carrasco (2012) 209 Cal.App.4th 715 held it was proper to
aggregate damages caused by multiple acts of vandalism committed pursuant to
one general impulse or plan to render the offense punishable as a felony,
noting that the offense of vandalism does not focus on the number of owners
whose property might have been damaged but instead focuses on the nature of the
property as not the defendant’s own
property.  (Id. at pp. 719-720.)

            To determine whether a defendant
committed multiple petty thefts or a single grand theft,  ADDIN
BA xc <@$cs> xl 6 s DGMINM000010 Bailey
and  ADDIN BA xc <@$cs> xl 8 s
DGMINM000011 Carrasco
allow aggregation of the value of the property. 
 ADDIN BA xc <@$cs> xl 6 s
DGMINM000010 Bailey
and  ADDIN BA xc <@$cs> xl 8 s
DGMINM000011 Carrasco
are of no assistance to defendant.

            Here, the evidence shows two
separate takings, not simultaneous takings from two victims.  Even though count 7 and count 8 occurred the
same night at Oasis, defendant did not commit a single petty theft but rather
two petty thefts, each with a separate intent. 
We conclude that the single larceny doctrine is inapplicable.

DISPOSITION

            The judgment is affirmed.

 

 

 

                                                                                                    RAYE                     , P. J.

 

 

 

We concur:

 

 

 

               HULL                      , J.

 

 

 

               MAURO                  ,
J.