P. v. Thayer

Filed 8/30/07 P. v. Thayer CA1/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Tammy R. Thayer appeals from a final judgment of conviction following a jury trial. Her court-appointed counsel has filed a brief raising no issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

STATEMENT OF THE CASE

An amended information charged appellant with petty theft after having incurred three prior petty theft convictions (Pen. Code,  484, subd. (a) and 666^[1]count I), forgery ( 470, subd. (d)count II), and theft and embezzlement of an elder adult ( 368, subd. (d)count III). On February 1, 2007, a jury returned a verdict finding her guilty of all three offenses. After appellant waived the right to jury trial on the validity of the prior convictions alleged, the allegations were found true by the court.

Probation was denied and appellant was on March 12, 2007 sentenced to state prison for the two-year middle term on count I. The court also imposed a two-year middle term on count II and a one-year sentence to county jail on count III, but ordered the sentences on those two counts stayed pursuant to section 654. Appellant thereafter filed timely notice of this appeal.

FACTS

Appellant was employed to perform housework and other chores by 81-year-old Mary Weigle, who was infirm and spent much of her time in a hospital bed in her residence. Because the gas tank on Ms. Weigles station wagon was leaking, she phoned auto shops and junkyards to find a replacement and located a business that had a suitable replacement for sale at about $80. Weigle asked appellant to remove the leaking tank and purchase and install the replacement tank, for which she gave appellant a check (payable to appellant) in the amount of $100. When appellant returned, she told Weigle she had purchased the replacement tank, for which she provided a receipt from Upper Lake Tow for cash payment of $83.97 for a [g]as tank for a station wagon, 77, had used the balance of the $100 to purchase gasoline, and would shortly remove the defective tank and install the replacement. Appellant removed the old tank, but never installed a replacement tank.

Several weeks later, after appellant left Weigles employ, Weigle was taken by wheelchair out on her deck and saw the gas tank appellant had removed from her vehicle (which had a hole in it) laying up against the porch. No replacement tank had been installed on her station wagon, and there was no such tank anywhere on Weigles premises. Lake County Sheriffs Deputy Robert Zehrung met with Ms. Weigle at her house in March 2004. Seeing the old tank in her living room leaking gasoline on the carpet, he removed it and called the fire department. Officer Zehrung found no other gas tank on the premises. Several weeks later, Weigle gave him the cancelled $100 check she made out and gave appellant and the purported receipt Weigle received from appellant.

Officer Zehrung questioned appellant on May 26, 2004 about the information he had received from Weigle. Appellant confirmed that Weigle had asked her to remove the defective gas tank of her station wagon and buy and install a replacement, and gave appellant $100 for this purpose. Appellant stated that she had purchased a replacement tank from a shop in Upper Lake called Upper Lake Tow. Appellant also told Officer Zehrung that she repaired the old tank with a substance called JB Weld, which she bought for about $6. However, because of poor weather, appellant never reinstalled the tank she had allegedly repaired. When Officer Zehrung presented appellant with the receipt for the replacement tank she had given Weigle, appellant responded: What are you going to do, put me away? and commented, You know, look, I fixed the gas tank. Appellant acknowledged she received a check for $100 from Ms. Weigle, and that she cashed the check at Weigles bank. Officer Zehrung testified that there was no business named Upper Lake Tow in Lake County.

Ms. Weigle and Officer Zehrung were the only witnesses presented by the prosecution. Appellant did not testify and the defense presented no witnesses.

The district attorney argued to the jury that appellants behavior constituted theft because appellant took the $100 check, never intended to get that replacement gas tank, and she kept the money. The crime also constituted theft by a fraudulent or false representation or pretense, the prosecutor argued, because by telling Ms. Weigle she had purchased a replacement tank, and giving her a false receipt, which Ms. Weigle relied upon, appellant defrauded her elder victim. Defense counsel emphasized in closing that a weld of some kind appeared on the surface of the defective gas tank (which had been received in evidence), suggesting that somebody spent some time doing some work on that unit, and that there was no evidence the receipt is fake or that [appellant] forged it or passed it knowing it was fake with the intent to rip off Ms. Weigle. Its that simple.

After the jury returned a verdict of guilty on all three counts, and appellant was admonished of the rights she would be giving up if she waived her right to jury trial on the validity of the priors alleged in connection with count I, appellant waived those rights and the matter was tried to the court. The court found that appellant had suffered the three prior theft-related convictions as alleged.

DISCUSSION

The evidence is unquestionably sufficient to support the judgment. It does not appear that any evidence received by the court should have been excluded, that admissible evidence was excluded, that the prosecutor committed misconduct, or that any instruction was erroneously given by the trial court and prejudicial.

Appellants mental competence is not questionable, and she was represented by able counsel throughout the proceedings.

There was no sentencing error.

There are no legal issues that require further briefing.

DISPOSITION

The judgment and sentence imposed are affirmed.

_________________________

Kline, P.J.

We concur:

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Haerle, J.

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Lambden, J.

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^[1]All subsequent statutory references are to the Penal Code