P. v. Bias

Filed 10/2/06 P. v. Bias CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Yuba)

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Security cameras caught defendant Mary Ann Bias, a security guard hired to protect North Tree Ranch (Ranch), removing items from the Ranch. An information charged defendant with grand theft. (Pen. Code, § 487, subd. (a).)^[1] A jury found defendant guilty of grand theft and the trial court placed her on three years’ probation. Defendant appeals, contending insufficient evidence supports her grand theft conviction, the court erred in denying her second motion for acquittal, and the trial court abused its discretion in refusing to reduce her felony conviction to a misdemeanor. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

An information charged defendant with a single count of grand theft. Defendant entered a plea of not guilty and a jury trial followed.

At trial Ranch manager Michael Filice, who had worked there for 36 years, testified. The Ranch employs approximately 55 employees, spreads over 475 acres, and contains several large buildings.

In spring 2004 the Ranch installed surveillance cameras at various locations and arranged for security services from Elite Security (Elite). The Ranch took these measures in response to a theft from the property when the caretaker was on vacation.

Two Elite guards were on duty every night. One guard worked from 5:00 p.m. to midnight; the second guard worked from midnight to 7:00 or 8:00 a.m. Defendant was one of the Elite guards hired to guard the Ranch.

The guards were instructed to log the name of anyone who entered the property, as well as his or her arrival and departure times. The Ranch provided a list of all Ranch employees; anyone who came onto the property was to be checked against the employee list.

On the morning of July 11, 2004, Filice arrived at the Ranch as defendant finished her shift. After defendant left, another Ranch employee informed Filice of a gap in the Ranch’s fuel log. The Ranch had a diesel and gasoline pumping station on the property. Employees using fuel recorded on a fuel log the date, the number of the vehicle filled, the number of gallons used, and the running number on the pump’s meter. A gap in the log revealed 50.6 gallons of diesel fuel valued at $92.60 were missing.

The missing fuel prompted further investigation and other items turned up missing. A red and black lawnmower valued at $100, an edger valued at $398, two five-gallon buckets of paint valued at $79.98, and two five-gallon buckets of Dello motor oil valued at $86.08 had vanished. The paint was a common brand and the motor oil was purchased locally. The oil and paint buckets had no identifying marks.

Filice reported the items missing to the Ranch’s owners and to law enforcement. He also viewed the surveillance tapes from July 10 and 11, 2004, which were not recorded in real time but in a compressed format. The compression resulted in a choppy video.

From the video, Filice recognized a vehicle and the person standing next to it as defendant. The video depicted the Ranch’s fuel storage area. Filice also saw a man and a vehicle he did not recognize.

Two switches activated the gasoline pumps: a main switch and a switch at the pump. The diesel pump was unlocked, while the gasoline pump was locked.

The video also depicted two men standing next to a gray van and talking to someone in the van. What appeared to be a security guard uniform was hanging in the van behind the passenger seat. Filice could not identify the two men.

Motor oil was stored in the maintenance shop. The video from the surveillance camera showed defendant and another individual in the maintenance shop area. The video also showed a person carrying a bucket of Dello motor oil.

Another shot depicted a person holding a ladder while another person climbed up toward a locked loft, where valuable items such as pumps and hoses were stored. Security guards were not given keys to the locked loft.

The missing lawnmower normally was kept in the caretaker’s building. However, the surveillance video revealed the missing lawnmower sitting outside. An earlier clip of the video did not depict the lawnmower at this location.

The Ranch gates were locked after hours and on weekends. There were two different security codes for the gates: one for employees and another for security guards. Filice could not recall if the employee gate code had been changed before July 10, 2004.

On July 15, 2004, Yuba County Sheriff’s Deputy Brett Felion took a report from Filice about the Ranch thefts. Afterward, Felion tried thrice without success to contact defendant at her residence. During one visit, Felion noticed a green car and a gray van, similar to that seen in the video, parked at defendant’s residence. The car was registered to defendant.

Felion also noticed a black and red mower/trimmer he believed matched the description of property stolen from the Ranch. Felion checked his paperwork and discovered it was indeed the missing mower/trimmer.

Felion spoke to a man at defendant’s residence and discovered the owner of the van was one Tammy Peterson. Felion subsequently spoke with Peterson at the sheriff’s department.

When Felion later returned to defendant’s residence, he discovered the mower and the car were gone. Felion searched the property and found buckets that matched the description of those taken from the Ranch.

Felion interviewed defendant at the sheriff’s department. Defendant admitted living at the residence but said she often stayed at her ex-husband’s house. Defendant told Felion she worked as a security guard at the Ranch. She worked the early shift on July 11, 2004, and nothing unusual had happened. Felion asked defendant about the stolen items, but defendant told him she had trouble remembering things. Defendant brought Peterson with her on her shift because defendant was afraid of her ex-boyfriend. Defendant denied moving or touching any buckets of oil or climbing a ladder during her shift. Defendant stated she was afraid of heights.

As the interview wound down, defendant suddenly changed her story. She told Felion someone came onto the property during her shift. Defendant believed the individual was named Jerry and was the son of a Ranch employee. Defendant did not know Jerry’s last name and did not say anything about what he did while he was on the Ranch. Defendant did not log Jerry’s entry or note the license plate number of his vehicle. Nor did she check Jerry’s name against the employee roster. She could not furnish Felion with a physical description of Jerry.

Defendant then stated Jerry had taken diesel fuel from the pumps. She could provide no details.

Defendant testified in her own defense. She began working for Elite in February 2004. On July 11, 2004, she worked the early morning shift at the Ranch. She brought her friend, Peterson, because she was afraid of an old boyfriend. During her shift, defendant patrolled the Ranch and checked all gates and roads.

Jerry arrived at the gate in his truck. Defendant was unsure what time this occurred. Defendant had previously seen Jerry at the Ranch and believed he worked there. When he arrived, Jerry told defendant he did not have the gate code because it had been changed recently. Defendant knew the code had been changed and let Jerry onto the property. Another man accompanied Jerry; defendant did not ask his name.

Jerry went to the fuel pumps; defendant did not consider this unusual. If the pumps were locked, a key was needed. Defendant did not have a key. Defendant did not record Jerry’s entry or write down his license plate number because she knew he was on the roster.

Defendant admitted she moved some buckets of oil during her shift because she tripped over them. Defendant stacked the buckets out of the way. She also testified she climbed the ladder to check out a noise in the area where the oil buckets were kept. Defendant climbed the ladder despite her fear of heights. Peterson held the ladder, but defendant saw nothing and climbed back down.

Defendant observed nothing out of the ordinary that morning. When she left the Ranch, she saw Filice on the way out. She spoke to him for a few minutes. Defendant filled out a daily activity report for her shift. She did not note each patrol or check of the facility. A prior activity report written by defendant for June 30, 2004, contained much more information. On that date, someone attempted to break in and defendant wrote a lengthy description of her activities. A June 21, 2004, report noted two people came to the Ranch on her shift.

Defendant owned the residence where the stolen items were found. She stayed there only one or two nights a week, since she worked the graveyard shift. She needed to sleep during the day and she had five or six roommates at her residence who were “in and out of the house all the time.”

Defendant testified she had a broken down lawnmower at her house. A friend had given her the lawnmower three or four years before. Someone came and took it away. Defendant did not remember having two buckets of paint in her garage, but she had bought a lot of paint while remodeling the previous year. She recalled having at least one half-filled bucket of paint left.

It was afternoon when Felion interviewed defendant about the thefts. Defendant had just woken up and had trouble remembering what had happened on the night in question. The longer she spoke with Felion, the more she remembered about the events of that evening.

Defendant brought a motion for acquittal pursuant to section 1118.1 after the prosecution rested. The trial court denied the motion. Defendant renewed her section 1118.1 motion after the close of the defense case, arguing the prosecution failed to prove that the value of the property taken exceeded $400. The trial court again denied the motion.

The jury found defendant guilty of grand theft. She moved to have her conviction reduced to a misdemeanor under section 17, subdivision (b). The trial court denied defendant’s request. The court placed defendant on three years’ formal probation with the condition that she complete 160 hours in the adult work program. The court also ordered defendant to pay $475.91 in restitution. Defendant filed a timely notice of appeal.DISCUSSION

SUFFICIENCY OF THE EVIDENCE

Defendant contends the prosecution presented insufficient evidence to prove she committed grand theft. Specifically, defendant argues the prosecution failed to prove that the value of the items taken exceeded $400.

In determining the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Valdez (2004) 32 Cal.4th 73, 104.) We presume the existence of every fact in support of the evidence that the trier of fact could deduce from the evidence, including reasonable inferences based on the evidence. (People v. Lee (1999) 20 Cal.4th 47, 58.)

Inferences reasonably deducible from the evidence constitute substantial evidence. The inferences need not be the only ones the evidence supports, and the evidence of the ultimate fact in question need not be strong. (People v. Wharton (1991) 53 Cal.3d 522, 546; People v. Johnson (1980) 26 Cal.3d 557, 576.)

The crime of theft is divided into two degrees: grand theft and petty theft. (§ 486.) Grand theft is a higher degree of theft. (People v. Ortega (1998) 19 Cal.4th 686, 696.) Grand theft involves the theft of property worth more than $400. (§ 487, subd. (a).)

According to defendant, the prosecution failed to present substantial evidence that the value of the items stolen exceeded $400. In support of this assertion, defendant itemizes the evidence presented of items taken: a $100 lawnmower, $92.60 in diesel fuel, $79.98 in paint, and $86.04 in motor oil. These items total $358.62, short of the $400 needed to prove grand theft. Defendant also contends the evidence failed to provide any means by which a reasonable inference could be drawn that the fair market value of the items stolen exceeded $400.

The People argue that an edger valued at $380 was also taken from the ranch, raising the value of property taken far above the $400 mark. Defendant contends there is no evidence that tended to show the edger was taken on the date in question. Defendant points out the surveillance tapes do not show the edger being stolen on July 10 or 11, 2004. Since the edger last had been seen on the Ranch the previous week when an inventory was taken, it could have been taken by anyone during that week. Defendant notes the Ranch is a large property with many employees coming and going, and the Ranch had a history of theft on the premises. According to defendant, the mere suspicious nature of the edger’s disappearance does not rise to the level of substantial evidence.

The People acknowledge the Ranch had been the target of thefts in the past. However, since the Ranch hired Elite to patrol the premises, it had been a long time since anything had been stolen. As the People note, Filice had viewed “quite a bit of video” of the Ranch taken on the days before the incident at issue and did not see anything being stolen. The People argue: “Further, the edger was a similar piece of equipment to the lawnmower. Given these facts, the jury could have reasonably inferred that the edger was taken on the same date the lawnmower and the other items were stolen.”

Our review of the record reveals evidence sufficient to support defendant’s conviction for grand theft. Faced with a series of thefts, the Ranch attempted to protect its property by instituting a variety of security measures. These measures limited the number of individuals who could access the Ranch and provided video surveillance of the activities of those who gained admittance.

An inventory taken the week before the robbery placed the edger in question on the Ranch. On the night in question, defendant opened the Ranch gate to third parties who absconded with a variety of Ranch property. After the midnight pillage, the edger turned up missing along with its sister mower. All these factors provide sufficient evidence to support the inference that defendant and her accomplices made off with the edger.

SECOND MOTION FOR ACQUITTAL

Unfortunately, Deputy Felion’s recollection of just what he observed at defendant’s residence on his first visit led to some confusion between the parties and the court in the hearing on defendant’s second motion for acquittal. Defendant claims this confusion led to the court’s erroneously denying her motion to acquit.

At the close of the prosecution’s case, defendant moved for acquittal. The court denied the motion, stating: “We have proximity of the Defendant there. We have things missing. We have dust marks indicating that they were there, and we have the Defendant being, shall we say, a little bit evasive when being interviewed by the Sheriff’s Department.”

At the close of the defense case, defendant again moved for acquittal, arguing the value of the items stolen did not exceed $400. The prosecution stated there was evidence about a “hedger,” or edger, valued at $398. Defense counsel argued there was no evidence to substantiate that the item was taken on the date in question. The prosecutor stated there had been testimony as to the value of the edger.

The court inquired: “Didn’t the deputy testify he saw the power trimmer or saw a power trimmer by the side of the house? [Prosecutor]: Yes. [Defense Counsel]: I thought he saw a lawnmower, Your Honor. The Court: No. [Defense Counsel]: That doesn’t make any sense to me, Your Honor. It’s nowhere in his report. I wasn’t under the understanding what he was trying to say when he was testifying, whether he saw a lawnmower or he saw an edger or both. The Court: Edger. [Defense Counsel]: He just saw the edger. He didn’t see a lawnmower? The Court: That’s my recollection. The motion is denied.”

During trial Felion testified as to his observations at defendant’s residence: “Located on the north side of the garage. I also observed a black and red Troy-Bilt mower/trimmer that I believed may match the description of some stolen property from the theft, but I could not recall and didn’t have my paperwork with me.” Felion continued: “I had returned with a specific purpose of trying to identify the mower/trimmer that I had seen on the north side of the garage and it was now gone.”

On cross-examination, Felion was asked, “[W]hen you went out there, you said you saw a lawnmower on the side of the house?” Felion answered: “The mower/trimmer, yes.”

The standard to be applied by the trial court in ruling upon a motion for judgment of acquittal is the same as the standard applied by the appellate court in reviewing the sufficiency of the evidence to support a conviction. Thus, the question is whether there is substantial evidence, including reasonable inferences to be drawn from the evidence, of the existence of each element of the offense charged. (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13; People v. Mathews (1994) 25 Cal.App.4th 89, 97.) The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Trevino (1985) 39 Cal.3d 667, 695 (Trevino).)

Defendant dissects Felion’s testimony and argues: “A mower is not an edger. . . . They are not the same. The deputy’s testimony was that he saw a lawnmower at appellant’s residence, saw it only one time, and then never saw it again.” Defendant argues the court based its denial of her motion for acquittal on “an incorrect recollection” of Felion’s testimony.

However, despite defendant’s protestations to the contrary, Felion’s testimony was not so clear-cut. Felion continually combined two items, a mower and a trimmer, into one. The court’s confusion was certainly understandable, as was the confusion of both the prosecution and defense counsel. The sentencing report listed the items taken and included “one power Trim edger” valued at $396.83 and “one Troy Built 5HP trimmer/mower” valued at $380.

Moreover, whatever the confusion surrounding Felion’s testimony, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, the jury could have found defendant guilty of grand theft beyond a reasonable doubt. (Trevino, supra, 39 Cal.3d at p. 695.) Our review of the evidence reveals the jury had before it ample evidence of defendant’s guilt. The prosecution presented evidence, via Ranch manager Filice, the videotapes, and Deputy Felion, that defendant stole over $400 worth of items from the Ranch. The trial court properly denied defendant’s motion to acquit.

REDUCTION OF FELONY TO MISDEMEANOR

Defendant contends the trial court abused its discretion when it refused to sentence her to a misdemeanor pursuant to section 17, subdivision (b). Defendant argues her lack of a criminal record, the minor nature of the current offense, the lack of serious financial loss to the victim, and her character and background support a reduction in sentence.

At the sentencing hearing, defendant requested that the trial court reduce her felony theft conviction to a misdemeanor pursuant to section 17, subdivision (b). Defense counsel argued defendant was still employed by Elite, had no prior criminal record, and at age 50 would lose her job if convicted of a felony. The prosecution opposed the request, arguing defendant violated a position of trust in committing the offense and the crime was planned and sophisticated, defendant having enlisted the assistance of others in carrying out the theft.

The parties agreed to continue the matter to see if defendant could present additional information regarding the other two suspects in the theft. After defendant failed to provide any further information about the other suspects, the trial court went forward with sentencing.

Defense counsel renewed the request for a reduction to misdemeanor theft. Defense counsel reminded the court that defendant had no prior record and a felony conviction would cost defendant her job.

The prosecution argued defendant violated her position of trust as a security guard in conspiring with others to steal from the Ranch. The prosecution also stated defendant had been given an opportunity to assist police in identifying the other guilty parties but had not availed herself of that opportunity. After reviewing the probation report and hearing oral argument, the trial court denied defendant’s request.

The trial court possesses broad discretion in deciding whether to reduce a felony to a misdemeanor under section 17, subdivision (b). In deciding whether to exercise its discretion under section 17, a court should consider: “’the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) In addition, the court must take into account the defendant’s criminal past and public safety. (Id. at p. 981-982.)

In reviewing a trial court’s exercise of its discretion, we are bound by an “extremely deferential and restrained standard.” (Alvarez, supra, 14 Cal.4th at p. 981.) The party challenging the sentence bears the burden of clearly showing the sentencing decision was irrational or arbitrary. Absent such a showing, we presume the trial court acted to achieve legitimate sentencing objectives, and we will not set aside the court’s discretionary determination to impose a particular sentence. (Id. at pp. 977-978.)

Defendant argues the nature and circumstances of her offense were relatively minor. The total value of all property discovered missing from the Ranch was less than $2,000, a relatively small amount for a 475-acre ranch with 55 employees. In addition, defendant contends her attitude and behavior during trial were “stellar.” She was cooperative and appreciated the seriousness of the offense. She posed no danger to society, based on her 50 year crime-free history. Finally, Elite retained her as an employee and joined her request to have the offense reduced to a misdemeanor.

The People present a far different portrait of defendant. The People contend the total value of the property taken, $1,775.91, was a significant amount. In addition, defendant opened the Ranch’s gate, allowing the others to come in and take what they wanted. As the People note, “Without appellant violating her position of trust as a security guard, this crime could not have occurred.”

Although the People concede defendant acted well during trial, “when given a chance to help law enforcement identify and prosecute the two other suspects she allowed onto the ranch, she balked.” Her conduct in this regard contrasted with that of Peterson, who assisted law enforcement by providing information on the other suspects. Peterson was convicted of only misdemeanor theft.

Given the facts of this case, we find the trial court, after considering the evidence at trial, the probation report, and argument on the motion, properly exercised its discretion in denying defendant’s request. The trial court’s decision was neither arbitrary nor unreasonable. Defendant, hired and paid to protect the Ranch, participated in the theft of a considerable amount of private property. After her conviction, defendant failed to aid authorities in locating her fellow thieves. Despite defendant’s lack of prior convictions and the complimentary letter from her current employer, the trial court acted within its discretion in refusing to reduce the felony theft conviction to a misdemeanor.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

DAVIS , Acting P.J.

HULL , J.

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