Filed 10/10/17 P. v. Penner CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. James M. Petrucelli, Judge.

Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

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On January 11, 2016, defendant Gerald Pete Penner was charged with six offenses: two counts of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); counts 1, 3); three counts of receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a); counts 2, 4, 6); and one count of operation of a chop shop (Veh. Code, § 10801; count 5).

On March 22, 2016, defendant was found guilty of counts 1, 3, and 5. Counts 2 and 4 were discharged after trial and a mistrial was declared on count 6. Defendant was sentenced to three years for count 5, two years for count 1, and two years for count 3. The sentences for counts 1 and 3 were to run concurrent to count 5. Defendant filed a timely appeal, arguing the conviction for operation of a chop shop was not supported by substantial evidence. We affirm the judgment.

FACTS

On October 11, 2012, Fresno County Sheriff’s Detective Philip Lodge discovered a utility task vehicle (UTV) and the trailer used to transport it missing from a county equipment yard. The UTV and trailer were on loan from the Department of Justice narcotics team for use in marijuana enforcement.

In July 2013, a Brandt forklift belonging to Agustin Ordaz, Sr., went missing. Ordaz had purchased the forklift sometime in 2003 for $9,000. The theft was reported to the sheriff’s department.

On October 7, 2013, Detective Carl McSwain was called to defendant’s residence on Smith Avenue in Parlier, California, regarding the stolen UTV and trailer. McSwain was assigned to the Department of Justice task force, and had used the UTV and trailer at marijuana grows and to set up trail cameras in the mountains. When McSwain arrived at the location, he saw a UTV parked on the north side of the residence.

McSwain inspected the UTV to see whether there was any damage to the vehicle, and whether it was drivable to get onto the trailer and back to the Department of Justice office.[1] He noticed the UTV’s ignition switch had been torn out of the dashboard, and it looked like somebody had torn the wires off the back of the switch and pulled them from underneath the dashboard. It appeared that it had been “hotwired” to turn the vehicle on. The battery was missing, the center console was torn out, and the wheels were worn and out-of-round from driving on asphalt.

McSwain also located a single-axle flatbed trailer on the property. He identified the trailer as the missing Department of Justice trailer used to transport the stolen UTV. Several unique traits helped him identify the trailer—the fender was squared off and mounted outside the frame, the loading ramps were stored in the side, and the rear section of the trailer had a piece of round bar stock welded across for loading ramps to hook onto.

McSwain found the trailer was in worse shape than the last time he had seen it, as the fenders were damaged and dented and the tongue jack on the front of the trailer was not working. The rods that held the loading ramp under the trailer and the trailer’s license plate were missing.

Detective Louis Brookman was also present at defendant’s property on October 7, 2013. He testified the property contained vehicle parts, trailers, and tools. Notably, there were many tires of various sizes, some with axles still attached, several vehicle axles, rims, a fender, a plastic bumper from a vehicle, several tongue jacks for trailers, a metal cage-like structure with four lights attached to it, several trailers, and three batteries, one of which appeared to be a group 28 battery used in wind machines or agricultural equipment. Brookman noted one of the trailers had a small area where it appeared the mylar sticker that would have had the vehicle identification number on it had been removed.

There was also a forklift, which appeared to have been painted yellow. This forklift was identified by Agustin Ordaz, Sr., and Agustin Ordaz, Jr., as the forklift stolen from them in July 2013.
Brookman spoke with defendant and asked him about the UTV and trailer. Defendant stated he purchased the UTV for $1,500 and the trailer for $1,000, approximately two and a half to three years prior from someone he knew only as “Joe.” When asked whether he felt the purchase price was reasonable, defendant stated he questioned the price and probably should have asked more questions about it. When told the UTV and trailer had been reported stolen in 2012, defendant stated his timeline may have been off. Defendant also stated he had, at one point, driven the UTV. Defendant did not testify at trial.

Donna Stumpf, a purchasing agent at SA Recycling, testified defendant was a regular customer. SA Recycling is in the business of buying scrap metal, and other ferrous and nonferrous materials. She could not, however, recall any particular conversations she had with defendant.

DISCUSSION

Whenever the evidentiary support for a conviction is challenged on appeal, this court reviews the whole record in the light most favorable to the judgment below, and determines whether the record discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 562.) This court presumes in support of the judgment, the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain his conviction for operating a chop shop. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves.” (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)

Vehicle Code section 250 defines a chop shop as “any building, lot, or other premises where any person has been engaged in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud, in order to do either of the following: [¶] (a) Alter, counterfeit, deface, destroy, disguise, falsify, forge, obliterate, or remove the identity, including the vehicle identification number, of a motor vehicle or motor vehicle part, in order to misrepresent the identity of the motor vehicle or motor vehicle part, or to prevent the identification of the motor vehicle or motor vehicle part. [¶] (b) Sell or dispose of the motor vehicle or motor vehicle part.”

Vehicle Code section 10801 states, “[a]ny person who knowingly and intentionally owns or operates a chop shop is guilty of a public offense and, upon conviction, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years, or by a fine of not more than fifty thousand dollars ($50,000), or by both the fine and imprisonment, or by up to one year in the county jail, or by a fine of not more than one thousand dollars ($1,000), or by both the fine and imprisonment.”

“The offense of owning or operating a chop shop as defined by Vehicle Code sections 10801 and 250 likewise requires stolen property, i.e., stolen motor vehicles/parts, the defendant’s knowledge that the property was stolen, and possession of the stolen property, but adds the further requirement that the defendant intentionally own or operate a place in which such stolen property is altered, destroyed, disassembled, dismantled, reassembled, or stored in order to change their identity or to sell them.” (People v. King (2000) 81 Cal.App.4th 472, 476 fns. omitted.)

A trier of fact could reasonably deduce from the evidence presented that the UTV and one of the trailers discovered on defendant’s property belonged to the Department of Justice, and were the same UTV and trailer stolen in 2012. The UTV’s vehicle identification number was intact and matched the stolen UTV’s vehicle identification number. McSwain determined one of the trailers on defendant’s property was the stolen UTV trailer by identifying a number of structural elements unique to the stolen UTV trailer—the fender was squared off and mounted outside the frame, the loading ramps were stored in the side, and the rear section of the trailer had a piece of round bar stock welded across for loading ramps to hook onto.

When questioned by Brookman, defendant stated he purchased the UTV and trailer two and a half to three years prior, which at the time would have been in 2010 or 2011. When told the UTV and trailer had been reported stolen in 2012, defendant stated his timeline may have been off. When asked about the purchase price, defendant admitted he questioned the price and probably should have asked more questions. A trier of fact could reasonably deduce from defendant’s statements that defendant knew the UTV and trailer were stolen.

Defendant argues there was no evidence presented that the damage to the UTV and trailer was done with the intent to sell or dispose of the equipment or its parts, or hide or misrepresent its identity.

However, defendant had several vehicles, along with many vehicle parts, vehicle tires, and tools on his property. Further, Stumpf testified defendant was a regular customer at SA Recycling, a business that purchases scrap metal. Finally, defendant admitted he had, at one point, driven the UTV, meaning the UTV was operational while in defendant’s possession. When the UTV was found by McSwain, however, there was extensive damage to the vehicle such that it was inoperable. The ignition switch had been torn out of the dashboard, and the center console and battery were removed. The UTV trailer was also damaged and was missing a pair of rods that held the loading ramp and its license plate. Based on the foregoing, a trier of fact could reasonably deduce that defendant engaged in the disassembly of vehicles, or the sale of vehicle parts, and dismantled the previously functional UTV and the UTV trailer in order to prevent its identification or to sell or dispose of its parts. We conclude there is substantial evidence to support the conviction.

DISPOSITION

The judgment is affirmed.