Filed 5/24/17 P. v. Stempfley CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Petitioners and Respondents,

v.

DARYL EUGENE STEMPFLEY,

Defendant and Appellant.

F072595

(Super. Ct. No. MF011600A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.
Jonathan Roberts, 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, and Craig S. Meyers, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-


Daryl Eugene Stempfley was found guilty of removing spikes used to hold railroad tracks in place, and being under the influence of methamphetamine. He argues the trial court improperly instructed the jury resulting in the burden of proof shifting to him to prove he did not remove any spikes. We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The information charged Stempfley with removing or destroying part of a railroad (Pen. Code, § 587, subd. (a)), misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)).
On March 19, 2014, Joan Jackson Merrill observed an SUV with a trailer attached and filled with scrap metal parked near railroad tracks. She also observed a gentleman bent over the railroad tracks with a pry bar in his hand. It appeared the man was prying up spikes. Merrill called the police to report her observations. Merrill did not see any other person near the railroad tracks or the SUV, nor did she see the man she observed approach the SUV. Merrill left the scene and returned a short while later. The deputy sheriff had arrived on the scene by that time. The man she observed previously had been placed in handcuffs. At trial, Merrill could not identify Stempfley as the individual she had seen.
Kern County Deputy Sheriff Frederick Marc Skidmore received a report on the day in question of a person taking items from the railroad track in the area he patrolled. When he arrived, Skidmore observed a Chevy S10 Blazer (SUV) with an attached trailer parked next to the railroad tracks, and a second vehicle parked nearby. Skidmore also observed Stempfley walking from the railroad tracks towards the SUV.
When Skidmore contacted him, Stempfley appeared “fidgety” and was constantly moving. After performing a field sobriety test and making additional observations, Skidmore concluded Stempfley was under the influence of a central nervous system stimulant, possibly methamphetamine. When Skidmore looked inside the SUV, he observed two methamphetamine smoking pipes. The bowl of one of the pipes contained what Skidmore described as a usable amount of methamphetamine. Inside the SUV, Skidmore found a pry bar, 21 railroad spikes, and railroad bolts.
When inspecting the railroad tracks, Skidmore found spikes that had been pried up but not fully removed, and several spikes on the ground away from the track. Skidmore also noticed some scrape marks on the spikes that had been pried loose, but not removed, apparently consistent with someone prying the spike from the railroad tie. Farther down the railroad tracks, the spikes appeared to be properly installed.
Stempfley told Skidmore he was collecting scrap metal, and he picked up some loose railroad spikes, but denied prying any spikes from the rails. Stempfley then walked Skidmore to the back of the SUV and showed him what he had collected.
On cross-examination, defense counsel clarified that Stempfley was not in the SUV when Skidmore arrived at the scene. Nor did Stempfley have the pry bar in his possession. Stempfley was walking towards the SUV when Skidmore initially arrived at the scene. The SUV was eventually released to its registered owner.
The substance observed by Skidmore in the methamphetamine pipe was tested and found to be .31 grams of a substance containing methamphetamine.
Deputy Sheriff Ben Harmonson evaluated Stempfley to determine if he was under the influence of a narcotic. After completing his evaluation, Harmonson opined Stempfley was under the influence of a central nervous system stimulant or methamphetamine. On cross examination, defense counsel confirmed a chemical test, such as blood or urine analysis, would be a more accurate method to determine if someone is under the influence of methamphetamine.
Dewayne Hillman was the manager of track maintenance for Union Pacific Railroad. He testified that federal regulations mandate that track supervisors patrol every inch of main line tracks twice a week. Any defects are scheduled for repair. Federal requirements mandate that every third tie be attached to the rail with spikes. Union Pacific requires each tie to have two spikes on the inside of each rail, one spike on the outside of each rail, and one spike away from the rail edge. Hillman opined that some of the spikes recovered from the SUV were recently removed from a tie, and many ties showed evidence that spikes had been removed.
Defense counsel called Cristina Espiritu, an investigator for the Public Defender’s office, who examined the railroad tracks in the area in question approximately 15 months after Stempfley was arrested. Numerous pictures were taken of the area that showed spikes discarded along the tracks, as well as spikes pulling out of the ties.
The jury found Stempfley guilty of removing part of a railroad and being under the influence of a controlled substance. The jury could not reach a verdict on the possession of methamphetamine count, and it was dismissed by the prosecutor.
The trial court suspended sentence and placed Stempfley on probation for three years on the condition he serve the first year in jail.
DISCUSSION
Stempfley argues the instruction describing the elements for the felony count of removing parts of a railroad improperly shifted the burden of proof on this count from the prosecution to Stempfley. This argument is complicated by the fact that the portion of the instruction about which Stempfley complains was added to the instruction at the request of defense counsel. Stempfley argues this fact should not preclude reversal because the invited error doctrine does not apply, or if it does apply then defense counsel was ineffective. We need not dwell on whether the alleged error has been forfeited, because the instruction did not shift the burden of proof, precluding his ineffectiveness of counsel claim.
As noted by the trial court, there is no form instruction for a violation of
section 587, subdivision (a). Section 587 states:
“Every person who maliciously does either of the following is punishable by imprisonment pursuant to subdivision (h) of Section 1170, or imprisonment in a county jail not exceeding one year:
“(a) Removes, displaces, injures, or destroys any part of any railroad, whether for steam or horse cars, or any track of any railroad, or any branch or branchway, switch, turnout, bridge, viaduct, culvert, embankment, station house, or other structure or fixture, or any part thereof, attached to or connected with any railroad.
“(b) Places any obstruction upon the rails or track of any railroad, or of any switch, branch, branchway, or turnout connected with any railroad.”
As relevant to this case, to violate section 587, subdivision (a), a defendant must (1) remove, injure or destroy any part of a railroad or track of a railroad, and (2) he or she must do so maliciously. The only case addressing this section cited by the parties, or that we have found, is People v. Bohmer (1975) 46 Cal.App.3d 185. Bohmer explained that the malice required by this statute is not the “intent to cause derailment of a train or to cause injury to any passenger or member of a train crew.” (Id. at p. 190.)
With this information to work with, the trial court fashioned the following instruction for the elements of a violation of section 587, subdivision (a):
“Defendant is accused in Count 1 of having violated section 587, subdivision (a) of the Penal Code, a crime.
“Every person who maliciously removes any part of a railroad track, is guilty of felony malicious injury to a railroad in violation of Penal Code section 587, subdivision (a), a crime.
“In order to prove this crime, each of the following elements must be proved:
“1. The Defendant removed a part of a railroad track; and
“2. The defendant acted maliciously in doing so.
“The word ‘maliciously’ means an intent to do a wrongful act.
“An intent to cause derailment of a train or to cause injury to any passenger or member of a train crew is not implied in the word ‘maliciously’ as used in section 587.”
After this instruction was prepared, defense counsel requested two special instructions. The trial court rejected one of the proposed instructions, but granted the request for the second instruction. However, instead of adding a new instruction, the trial court added the requested language to the above instruction. The added language is:
“If you find that the Defendant did not pry or remove any train spikes out of the track and he was only picking up spikes or bolts off of the ground then you must find him not guilty of Count 1.”
It is this language that Stempfley argues shifts the burden of proof from the prosecution to the defense. Stempfley asserts the added language placed on him the burden of proving the spikes and bolts located in his vehicle were found on the ground, and that he did not remove the items from the tracks.
We disagree. The added language informed the jury in plain language that if it concluded, as defense counsel asserted during closing argument, that Stempfley merely picked up scrap metal off the ground, then he had not committed a crime. The instruction did not require Stempfley to prove he picked up scrap metal off the ground. Nor did this portion of the instruction relieve the prosecution of its burden to prove each element of the cause of action. The contested language was a pinpoint instruction that emphasized Stempfley’s defense that he did not remove any object from the railroad tracks, but only picked up scrap metal off the ground.
As far as this cause of action was concerned, this was the only issue to be decided. The prosecution presented evidence in an attempt to convince the jury Stempfley had removed the items from the railroad track, including testimony observing Stempfley with a pry bar hovering over the railroad tracks, and the appearance of the recovered spikes indicating they had been recently removed.
Moreover, the trial court properly instructed the jury on the prosecution’s burden of proof. We also note the prosecution readily accepted his burden of proof during closing argument, and did not refer at any point to this portion of the instruction. He argued it was a straightforward case and that Stempfley was caught in the act of removing spikes from the railroad tracks. Defense counsel argued there was no evidence Stempfley was removing spikes from the railroad tracks, and he had merely picked up loose debris.
Not only does the cited language not shift the burden of proof to the defendant, under the circumstances of this case we cannot conceive of any possible way the jury could have interpreted the instruction as requiring defense counsel to prove Stempfley had only picked up scrap metal. Accordingly, the jury would not have applied the instruction in any manner other than as intended.
DISPOSITION
The judgment is affirmed.