People v. Kellett

• Decision Date: 21 July 1982
• Docket Number: Cr. 5913
• Citation: 185 Cal.Rptr. 1,134 Cal.App.3d 949
• Parties: The PEOPLE, Plaintiff and Respondent, v. Larry Wayne KELLETT, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 1

185 Cal.Rptr. 1

134 Cal.App.3d 949

The PEOPLE, Plaintiff and Respondent, v. Larry Wayne KELLETT, Defendant and Appellant.

Cr. 5913.

Court of Appeal, Fifth District, California.

July 21, 1982.

Barbara M. Rawson, Bakersfield, 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. [134 Cal.App.3d 953] Gen., Willard F. Jones and Edmund D. McMurray, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

MARTIN, Associate Justice. ^*

Appellant was charged with two counts of grand theft (Pen.Code, § 487, subd. 1) and two counts of vehicle theft (Veh.Code, § 10851). Property taking enhancements were alleged as to each vehicle theft count (Pen.Code, § 12022.6, subd. (a)). Appellant was found guilty on all counts and was sentenced to the upper base term of three years for count three (vehicle theft) plus a one-year enhancement for the taking of property valued in excess of $25,000 (Pen.Code, § 12022.6, subd. (a)). He received an identical concurrent sentence as to count four (vehicle theft) and imposition of sentence was stayed as to counts one and two (grand theft).

These are the facts:

Sometime in 1980, Leonard Pyles met Dave Conroy in a Bakersfield cafe. Shortly after Easter 1981, Conroy phoned Pyles and they discussed Central Valley Petroleum, which is located in Visalia. Pyles, a Visalia resident, was familiar with Central Valley.

Around this time, Pyles contacted FBI agent Morrison. In early May 1981, Morrison introduced Pyles to Jerry Grimes of the Kern County Sheriff's Department. Pyles informed Grimes that Central Valley Petroleum was targeted for a theft.

Pyles had been personally involved in ten to twelve oilfield thefts over the prior year, although he had not been in trouble with the law. Pyles offered to help the police. In return, he and his three brothers were granted immunity from prosecution.

Grimes and Pyles decided to catch Conroy in the act of stealing gas or diesel fuel from Central Valley Petroleum. Pyles was to tell Conroy that he was able to bribe the security person at Central Valley's yard.

Don Rose, owner of Central Valley Petroleum, was contacted and informed about the plan. Rose was to arrange to have trucks loaded with fuel on the appointed day of theft. He was also to make sure the keys were left in the trucks.

On May 29, 1981, Pyles met with Grimes and Ed Jagels of the Kern County District Attorney's office. Prior to this meeting and subsequent to the post-Easter conversation mentioned above, Pyles had spoken to Conroy by phone on two or three occasions. During the May 29 meeting, Pyles made phone calls to the Kern County residences of Conroy and appellant. Conroy was not home and Pyles spoke with his wife.

On June 3, 1981, Pyles met with Grimes and made a tape-recorded telephone call to Conroy. ¹ Conroy informed Pyles that he was still interested in the two loads of diesel to be picked up in the Central Valley. Pyles was to receive $5,000 for each load.

On June 10, 1981, Pyles again met with Grimes at the Kern County Sheriff's Department. Pyles phoned Conroy. He assured him the theft would occur the following Monday or Tuesday, and that it was set up. Pyles suggested they all do the job together (referring to himself, Conroy, appellant and another unnamed person), but Conroy stated, "I may have them go by theirself [sic] ...." Pyles learned the "stuff" was going to Tracy.

Also on June 10, 1981, Pyles phoned appellant. Pyles told him it would be Monday or Tuesday night for sure. He also told appellant to be sure to have something to cut through the gate as well as a means to hot wire the trucks. Appellant assured Pyles that he would "have everything with me."

On June 16, 1981, Pyles met with Grimes at the Downtowner Inn in Bakersfield. Pyles phoned appellant. He told him "it's set up there now." Shortly thereafter, Pyles phoned Conroy. He told Conroy the trucks would be ready and loaded between 1:30 and 2 a. m. They agreed to meet at Denny's in Visalia at 1 a. m. Conroy told Pyles he would make the pay-off at that time. Pyles assured Conroy there would be two trucks, and Conroy assured Pyles that bolt cutters had been obtained to do the job. Conroy also informed Pyles that Jess Olivarez would be coming along to participate in the job.

That evening, June 16, 1981, Pyles, Grimes, and other law enforcement individuals drove to Visalia. After midnight Grimes and other officers staked out the Central Valley Petroleum premises. At about 1 a. m. Pyles went to Denny's where he was to meet Conroy, Olivarez and appellant. When he arrived, each of the aforementioned individuals was present, as was a fourth individual, Bruce. While in the Denny's bathroom, Conroy gave $1,000 to Pyles for the ostensible purpose of bribing the gateman at Central Valley Petroleum.

Pyles, appellant, Bruce, and Olivarez left Denny's in a station wagon. They drove to the Central Valley Petroleum premises. Appellant and Bruce got out.

Appellant and Bruce cut the chain at the Central Valley gate. Each man started up a truck. There were two tankers of Transmix (mixture of gasoline and diesel) attached to each truck. They drove the trucks about 45 yards and were arrested.

Pyles and Olivarez were arrested about a mile from Central Valley Petroleum. Conroy was arrested in the Denny's parking lot.

No witnesses were called on behalf of the defendants. In closing argument, appellant's counsel raised two defenses. First, he contended appellant had been entrapped by the plans concocted by Pyles, Grimes and the Kern County District Attorney's office. Failing this defense, he argued that Don Rose, the Central Valley owner, had consented to the taking of the trucks by leaving the keys in the ignitions.

DISCUSSION

I.

At the close of the People's case, counsel for codefendant Bruce made a motion, joined by appellant's counsel, for a judgment of acquittal (Pen.Code, § 1118.1). The motion was premised on the theory that Kern County did not properly have jurisdiction in the case, since the alleged criminal act had occurred in Visalia, which is located in Tulare County. The trial court denied the motion holding, "I find that there is sufficient ties to Kern County in the planning stage of this matter to deny the motion ...."

In this appeal, appellant once again urges that jurisdiction was not proper in Kern County. Appellant's contention is premised on the fact that the only connection with Kern County in this case was the several phone calls made by Pyles, which it is conceded, were made in Kern County. Appellant's contention is meritless.

The People relied on Penal Code section 781 in establishing jurisdiction in Kern County. Section 781 provides:

"When a public offense is committed in part in one jurisdictional territory and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction of such offense is in any competent court within either jurisdictional territory."

Initially, it should be noted that section 781 "was intended to broaden criminal jurisdiction beyond the rigid limits fixed by the common law in cases of crimes committed in more than one jurisdiction. [Citations.]" (People v. Powell (1967) 67 Cal.2d 32, 63, 429 P.2d 137.) For this reason, " section 781 is liberally construed to vest jurisdictional venue in the court of a county where only preliminary acts leading to the commission of a crime in another territorial jurisdiction of California occur. [Citation.]" (People v. Chapman (1977) 72 Cal.App.3d 6, 11, 139 Cal.Rptr. 808.) Thus, the "acts" (as that term is used in § 781) vesting jurisdiction need not constitute an element of the crime charged. (People v. Williams (1973) 36 Cal.App.3d 262, 268, 111 Cal.Rptr. 378.) It is sufficient if the "acts" of the defendant are requisite to the completion of the criminal offense. (Ibid.)

In People v. Tabucchi (1976) 64 Cal.App.3d 133, 134 Cal.Rptr. 245, this court had occasion to review a trial court's determination that territorial jurisdiction was proper under section 781. We noted that the question of whether jurisdiction was proper in a criminal case is one of fact, which need be proven only by a preponderance of the evidence. (64 Cal.App.3d at p. 141, 134 Cal.Rptr. 245.) On review, the trial court's determination will be upheld so long as "... there is some evidence to support ..." its holding. (Ibid.)

In this case, there is more than sufficient evidence to support the trial court's ruling. As appellant concedes, informant Pyles made several phone calls from Kern County telephones. These calls were placed to Dave Conroy and appellant, in Kern County, and the subject matter of the calls invariably involved the theft for which appellant was eventually tried. The parties discussed the compensation for Pyles' efforts in arranging the theft, the time of the crime, the place of the crime, the tools necessary for the commission of the offense, the eventual destination of the fuel to be stolen, and the place where the parties were to assemble immediately prior to the heist.

As we observed in People v. Tabucchi, supra, 64 Cal.App.3d 133, 134 Cal.Rptr. 245, jurisdiction is proper in the county where the "preliminary arrangements" for the commission of a crime are made. (64 Cal.App.3d at p. 140, 134 Cal.Rptr. 245.) Here, Pyles' phone calls clearly involved preliminary arrangements which were requisite for the commission of the crime. Virtually every important element in the theft scheme was discussed in these calls, culminating in the final call when arrangements were made to meet in Visalia shortly before the theft.

Ondarza v. Superior Court (1980) 106 Cal.App.3d 195, 164 Cal.Rptr. 892, decided by this court, provides a case close in point. There, the defendant was convicted in Fresno County for having...