People v. Strohman

• Citation: 84 Cal.App.4th 1313,101 Cal.Rptr.2d 520
• Decision Date: 23 October 2000
• Docket Number: No. B134371,B134371
• Court: California Court of Appeals
• Parties: (Cal.App. 2 Dist. 2000) THE PEOPLE, Plaintiff and Respondent, v. MARVIN DEAN STROHMAN, Defendant and Appellant. 2d Crim. Filed

101 Cal.Rptr.2d 520 (Cal.App. 2 Dist. 2000)

THE PEOPLE, Plaintiff and Respondent, v. MARVIN DEAN STROHMAN, Defendant and Appellant.

2d Crim. No. B134371

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT DIVISION SIX

Filed 10/23/00

Part. Pub. & Mod. Order 11/22/00

(Super. Ct. No. SM106723)(Santa Barbara County)

James B. Jennings, Judge, Superior Court County of Santa Barbara

Mark E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Thien Huong Tran, Deputy Attorney General, for Plaintiff and Respondent.

CERTIFIED FOR PARTIAL PUBLICATION.

GILBERT, P.J.

Vehicle Code section 250 states in part: "A 'chop shop' is any building, lot , or other premises where any person has been engaged in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud...."

Here we hold that receiving stolen property is not a necessarily included offense of operating a chop shop. We also conclude the trail court did not abuse its discrestion by denying probation.

Marvin Dean Strohman appeals from a judgment after conviction of reciving stolen property (Pen. Code, 496, subd. (a)) and of operating a chop shop. (Veh. Code 250, 10801.) The court denied his application for probation and sentenced him to three years imprisonment for operating the chop shop and a two-year concurrent sentence for receiving stolen property. We affirm.

Facts

Todd Crouch owned a distinctive turquoise-and bone-colored Harley Davidson motorcycle. Less than two months after he bought it, it was stolen from a hotel parking lot in San Luis Obispo.

A week later, Santa Barbara County Sheriff Sergeant Kenneth Reinstadler saw the bike parked outside a bar in Orcutt. He spoke with Strohman who told him he "deals in bikes" and purchased this bike at a discount.

Nine days later, officers served a search warrant on Strohman's Orcutt home. Deputies found hundreds of thousands of motorcycle parts throughout the residence. Some of the parts were from stolen bikes, and others had altered vehicle identification numbers (VINS). Parts from Couch's motorcycle were found in the living room. Strohman admitted violating vehicle registration statutes because he bought and sold so many bikes. He did not have receipts showing lawful purchases of the bikes.

Strohman testified that he purchased the bikes and parts lawfully and did not know they were stolen or had altered VINS. He also denied making false or inconsistent statements to the officers who conducted the investigation.

In addition to the evidence at trial, the court had information regarding Strohman's criminal activities. Before serving the search warrant on his residence, officers had seen other stolen motorcycles there. A license plate from one stolen motorcycle was recovered at his home. Police informants had purchased methamphetamine from Strohman. The search of his home uncovered drugs and drug paraphernalia. Officers also recovered stolen household appliances and fixtures stolen from Strohman's former landlord.

Strohman requested preparation of a pre-plea probation report in this case and one in another criminal case. The court ordered him to appear for a probation interview the following day. He did not appear or respond to telephone calls and letters directing him to appear for an interview. The probation report therefore contained no social history. The report stated, "Since an interview was not conducted with the defendant, it can only be assumed that he has the willingness and ability to abide by the terms of probation." It rated him a "marginal" candidate and noted that he continued to commit crimes after service of the search warrant. Strohman did not appear for court hearings and was arrested twice on resulting bench warrants. He had even challenged Sergeant Reinstadler to fight. While the prosecution was pending, officers seized a loaded shotgun from his vehicle. He repeatedly violated vehicle registration laws and failed to keep his son from being truant.

A supplemental report prepared after trial noted that a "compelling argument for not granting probation is the defendant's sanctimonious attitude of persecution." It also noted that Strohman displayed "absolutely no remorse" and refused to accept responsibility for his behavior. The supplemental report stated that the probation department had a "much lower level of confidence" that probation was appropriate than expressed in the first report.

Discussion

I

Strohman argues his conviction for receiving stolen property must be reversed. He relies on the recent case of People v. King (2000) 81 Cal.App.4th 472, which holds that the offense of receiving stolen property is necessarily included within the offense of owning and operating a chop shop. (See People v. Ortega (1998) 19 Cal.4th 686, 692 [the test of a necessary included offense is whether an offense cannot be committed without necessarily committing another offense].) We, however, are not...