P. v. Schwartz

 

 

 

 

 

 

Filed 1/30/07  P. v. Schwartz CA1/4

 

 

 

 

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

 

FIRST
APPELLATE DISTRICT

 

DIVISION
FOUR

 

 

THE PEOPLE,             Plaintiff and Respondent, v. TIMOTHY RICHARD SCHWARTZ,             Defendant and Appellant.

A111990          (Contra Costa County        Super. Ct. No. 05-050578-4)

 

            Defendant Timothy Richard
Schwartz appeals a judgment entered upon a jury verdict finding him guilty in
count one of grand theft (Pen. Code,[1]
§ 487, subd. (a)), in count two of second degree commercial burglary
(§§ 459, 460, subd. (b)), and in count three of attempted grand theft (§§ 487, subd.
(a), 664).  The trial court
sentenced defendant to the two-year midterm on count one, to a concurrent
one-year term on count three, and stayed sentence on count two.  Defendant
contends on appeal that he could not properly be convicted of both the theft
alleged in count one and the attempted theft alleged in count three.  We agree
and conclude the attempted theft conviction must be reversed.

I.  BACKGROUND

            At approximately noon on July 31, 2004, defendant and another man were in the lumber department of a Home
Depot store.  They asked a Home Depot employee, Gerard Gachara, for help in
getting plywood down.  Defendant had two carts, and loaded each with precisely
the same number of pieces of plywood, so the carts appeared identical.  He
added to each cart one window, one vent, and additional pieces of lumber.  The
total number of pieces of plywood was approximately 36.  Gachara asked
defendant what kind of project he was working on, and defendant said he was
doing identical remodeling projects for two elderly ladies, 82-year-old twins. 
Defendant and the other man left the department, each pushing one cart.  Gachara
thought defendant's actions and story were suspicious, and asked the cashiers
to let him know if anyone tried to return a large load of lumber.

            Defendant brought a
cart of merchandise to the garden register at approximately 12:50 p.m.  Home Depot's records showed that someone paid $1,110.95 for merchandise,
including 18 pieces of wood siding, vents, caulking, skylights, and several
pieces of wood at 12:51 p.m. on July 31.  No other similar purchase was made
that day.  Surveillance cameras showed defendant pushing the cart of
merchandise out to the parking lot.  Home Depot's loss prevention manager,
Robert Sean Sappington, reviewed the store's surveillance tapes and found no
record of anyone bringing the cart back into the store.  Sappington searched
the store to see if he could find a cart of merchandise similar to defendant's,
but there was none.

            A few minutes later, defendant
approached an employee and asked how he could get help loading a cart of
lumber.  The employee checked the receipt, saw that the items in defendant's
cart matched those listed on the receipt, and told defendant where he could get
help.  Two Home Depot employees helped push the merchandise out of the
store--the second time defendant left the store with a cart of merchandise.

            Defendant and the other
man returned to the store around 6:00 p.m. the same day and tried to return 18
pieces of plywood.  Gachara called his manager and the loss prevention manager
and told them about the attempted return.  He checked the inventory system and
saw that, although there were no sheets of the type of plywood defendant was
returning on the shelf, the system indicated there should still be 18 pieces
available.  A Home Depot employee at the return counter, Johannes Kelanadjaja,
consulted with Sappington, then asked defendant to wait.  Defendant provided
his name and telephone number, and left the building.  Kelanadjaja later called
defendant and asked him to return for his refund.  Defendant told Kelanadjaja
he would like to send his brother or sister instead.  Kelanadjaja asked defendant
to come in personally.

            Defendant returned to
the store two days later.  Sappington was informed that defendant was in the
store.  He went to the return desk and found that defendant had left the
store.  Sappington found defendant outside the store speaking on a cell phone
and saying, â€