People v. Arceo

• Decision Date: 20 July 1979
• Docket Number: Cr. 10011
• Citation: 95 Cal.App.3d 117,157 Cal.Rptr. 10
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Eddie J. ARCEO, Defendant and Appellant.

Page 10

157 Cal.Rptr. 10

95 Cal.App.3d 117

The PEOPLE of the State of California, Plaintiff and Respondent, v. Eddie J. ARCEO, Defendant and Appellant.

Cr. 10011.

Court of Appeal, Third District, California.

July 20, 1979.

Quin Denvir, State Public Defender, Ezra Hendon, Richard L. Phillips, George A. Lagomarsino, Deputy State Public Defenders under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., and Willard F. Jones, Edmund D. McMurray, Deputy Attys. Gen., for plaintiff and respondent.

PARAS, Associate Justice.

Defendant appeals from a judgment (commitment to state prison) entered after a jury found him guilty of grand theft of an automobile (Pen.Code, § 487, subd. 3).

I

Defendant's first contention is that there is insufficient evidence to support the conviction since there are no facts in the record " . . . to allow an inference . . . that appellant was the one who on January 16, 1978, took possession of Saragoza's car at Red's bar and unlawfully drove it away . . . ."

It is a well established rule that the test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact. The court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Williams (1971) 5 Cal.3d 211, 214, 95 Cal.Rptr. 530, 485 P.2d 1146.) Furthermore, the "(p)ossession of recently stolen property is so incriminating that only slight additional evidence is necessary to sustain a conviction (of grand theft). (Citation.) Evidence of a false explanation as to how the property came into defendant's possession will suffice to sustain a conviction for its theft. (Citations.)" (People v. Malamut (1971) 16 Cal.App.3d 237, 241, 93 Cal.Rptr. 782, 784.)

The record discloses defendant both had possession of the recently stolen automobile (a Pinto) and offered conflicting explanations as to how it was obtained. The Pinto was stolen from the parking lot of Red's Club sometime between the evening of January 16, 1978 and the evening of January 17, 1978. Defendant and his two cousins dismantled it in a garage at the residence of his friend Cynthia Speers; Speers told this to police officers. Speers' next door neighbor, Cheryl Brixley, told officers she had seen the yellow Pinto in Speers' garage approximately a week or 10 days prior to January 23. This would place it in Speers' garage at about the time of the theft. She also stated the Pinto was covered with a white "quilt type cover" or "moving van cover."

After being told by police the Pinto had been stolen, and after agreeing to discuss the matter with them, defendant stated the Pinto belonged to his cousin Guillermo (Nemo) Barajas and had been in the garage for about three or four days. He said the car had been given to Barajas by a friend who said it was no good and Barajas could have any parts he wanted. When questioned about Barajas, however, defendant's replies were evasive. During the interview Barajas and defendant's brother George drove up in a truck containing an acetylene cutting unit and the steering column and wheel of the stolen Pinto, defendant claimed he had no idea who Barajas was and had never seen him before.

When defendant's brother and Barajas were later arrested, defendant altered his story and told the officers he had lied, the Pinto was his, and he had cut it up by himself. This, in itself, was in conflict with Cynthia's statement to the officers that defendant and his two cousins had cut up the Pinto and with the fact his cousin and brother both had dirty, greasy hands or arms and a cutting unit in their truck. Defendant further told the officers that he had gotten the Pinto from a vaguely described Mexican person named John. While he was at Red's Club, John asked him if he wanted a car; he first declined the offer but later accepted; they drove to "the islands" where the Pinto was located; he drove it to Speer's garage; and then returned to Red's Club with John. ¹ John asked nothing in return for the vehicle.

The trier of fact was not required to believe defendant's testimony. (See People v. Wise (1962) 199 Cal.App.2d 57, 60, 18 Cal.Rptr. 343.) Defendant's possession of the recently stolen Pinto, along with his conflicting explanations of how the car was obtained, is sufficient to support the conviction of grand theft. (Ibid.)

II

Defendant's second contention is that the case must be remanded for resentencing since the trial court failed to state the reasons for its sentencing choice on the record in compliance with Penal Code section 1170, subdivision (c).

The pertinent part of Penal Code section 1170, subdivision (c), states, "The court shall state the reasons for its sentence choice on the record at the time of sentencing. . . . "

" 'Sentence choice' means the selection of any disposition of the case which does not amount to a dismissal, acquittal, or grant of a new trial. It includes the granting of probation and the suspension of imposition or execution of a sentence" (Cal.Rules of Court, rule 405(f)).

"Selection of the middle term does not relieve the court of its obligation under (Penal Code) section 1170(c) to state the reasons for imprisonment as its sentence choice." (Emphasis added.) (Cal. Rules of Court, rule...