Filed 4/8/14 P. v. Summers CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yuba)
                                                            ----



THE PEOPLE,                                                                                  C073525

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF11-253)

         v.

DWIGHT ANTHONY SUMMERS,

                   Defendant and Appellant.




         A jury found defendant Dwight Anthony Summers guilty of grand theft (Pen.
Code, § 487, subd. (a))1 and not guilty of an alternative count of petty theft with three
prior theft related convictions (§ 666, subd. (a)). He was sentenced to prison for eight
months (one-third the midterm of two years) consecutive to the sentence imposed in an
unrelated case. Defendant was awarded no credit for time served and was ordered to pay




1        Further statutory references are to the Penal Code unless otherwise indicated.

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a $280 restitution fine (§ 1202.4, subd. (b)) and a $280 restitution fine suspended unless
parole is revoked (§ 1202.45).
        On appeal, defendant contends (1) his conviction is not supported by sufficient
evidence, and (2) his restitution fines must be reduced to the statutory minimum of $200.
We affirm.
                                          FACTS
                                 Prosecution Case-in-Chief
        Paul Holck is the owner and manager of H & S Automotive in Marysville. Holck
has known defendant for five or six years, having attended the same church. H & S
Automotive has done quite a bit of work on defendant’s car.
        On a Saturday in April 2011, defendant appeared at H & S Automotive. He was
“dirty” and “didn’t look right.” His eyes were glossy and his speech was not smooth. He
said he needed to take a shower or wash himself off. Holck, the only other person at the
shop, allowed defendant to use the bathroom.
        Next to the bathroom was an unlocked storage container in which “a lot of [the
shop’s] good tools” are stored. Holck had been using tools from the container that day.
        Holck testified that, when defendant used the bathroom, the storage container
contained a brand new Solus Pro Scanner, which is “basically [a] little computer[]” that is
“used to diagnose . . . engine codes” and had cost Holck “roughly $4,000.” The container
is where the scanner “is always kept.”
        On the Monday following defendant’s Saturday visit, Holck discovered that the
scanner was missing. There were no signs of forced entry into the shop. The shop’s
alarm did not sound, and no one entered a code to deactivate the alarm. Aside from
defendant and Holck, only Holck’s technician and secretary had access to the garage
area.




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       When he realized the scanner was missing, Holck contacted his Snap-on Tools
representative, John Balkowitsch, and told him what had happened. Holck’s secretary
contacted the police.
       In April 2011, defendant attempted to sell a scanner identical to the one taken
from Holck’s shop to another auto shop, managed by Lucio Daniel Alire, for $500.
Alire, suspicious of the inordinately low price, refused. Alire viewed photographs of the
stolen scanner and testified that he believed they depicted the kind of scanner defendant
had offered to sell to him.
       Balkowitsch sold Holck a replacement for the stolen scanner. Balkowitsch also
became aware that the stolen scanner had appeared at another of his usual customers,
Quality Alignment N Brake (hereafter Quality) in Yuba City. Balkowitsch examined the
serial number on the scanner at Quality and determined that it was Holck’s scanner.
       Corporal Aaron Easton of the Marysville Police Department testified that in April
2011 Miguel Zuniga came to the police station and asked to talk about the recovery of a
stolen automotive scanner. After Easton obtained the scanner from Zuniga, he submitted
its serial number to his dispatcher who determined that it had been reported stolen from H
& S Automotive in Marysville. The trial court sustained defense counsel’s foundational
objection to the prosecutor’s question where Zuniga was “from;” thus, his relationship to
Quality was not established.
                                         Defense
       The defense rested on the state of the evidence.
                                      DISCUSSION
                                             I
                                   Substantial Evidence
       Defendant contends his due process right was violated because his grand theft
conviction is not supported by sufficient evidence. Specifically, he argues (1) there was
insufficient evidence that the scanner was in the storage container when defendant was

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present, (2) there was no evidence that his offer to sell Alire a scanner occurred after,
rather than before, Holck’s scanner was stolen, and (3) there was no evidence how
Zuniga came into possession of the scanner. None of these points has merit.
       Defendant was convicted of grand theft. (§ 487, subd. (a).) Theft “is committed
by every person who (1) takes possession (2) of personal property (3) owned or possessed
by another, (4) by means of trespass and (5) with intent to steal the property, and (6)
carries the property away. [Citations.]” (People v. Davis (1998) 19 Cal.4th 301, 305.)
       “On appeal, the test of legal sufficiency is whether there is substantial evidence,
i.e., evidence from which a reasonable trier of fact could conclude that the prosecution
sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting
this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶]
While the appellate court must determine that the supporting evidence is reasonable,
inherently credible, and of solid value, the court must review the evidence in the light
most favorable to the [judgment], and must presume every fact the jury could reasonably
have deduced from the evidence. [Citations.] Issues of witness credibility are for the
jury. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)
       This court has explained that an appellant “must affirmatively demonstrate that the
evidence is insufficient,” and that he “does not show the evidence is insufficient by . . .
arguing about what evidence is not in the record.” (People v. Sanghera (2006) 139
Cal.App.4th 1567, 1573, original italics.) Defendant’s argument fails because it is
focused on evidence assertedly not in the record: evidence the scanner was in the storage
container while defendant was present, evidence the theft of Holck’s scanner preceded
defendant’s offer to sell Alire a scanner, and evidence that Zuniga obtained the scanner
from defendant.
       In any event, defendant’s arguments have no merit. Holck’s testimony that the
scanner was present in the storage container next to the bathroom when defendant used
the bathroom is sufficient to prove the fact of its presence at that time. (Evid. Code, §

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411; see generally People v. Cuevas (1995) 12 Cal.4th 252, 262-263.) We reject
defendant’s speculation that “the scanner may have been taken a week or a month
earlier.”
       Contrary to defendant’s argument, the prosecution had no obligation to prove that
defendant’s interaction with Alire occurred after Holck’s scanner was stolen. The
evidence showed that the scanner was in Holck’s shop and that defendant was one of the
only persons with access to it. Holck testified that had no theft-related problems or
concerns with respect to his technician or his secretary. Defendant enjoyed no similar
reputation and had the time to achieve a theft; it took him “quite a while” to wash up in
the bathroom. These facts, together with evidence that defendant tried to sell an identical
scanner for a suspiciously low price, provide ample support for a jury determination that
defendant stole the scanner from Holck.
       Defendant further argues that the jury erred in finding that “Zuniga must not have
stolen the scanner himself, and must have purchased the stolen scanner from” defendant.
(Italics omitted.) We disagree.
       The evidence showed that the scanner was in Holck’s shop and that only he, his
technician, his secretary, and defendant had access to it during the relevant time period --
not Zuniga. These facts, coupled with evidence that Zuniga turned the scanner over to
authorities, are more than sufficient to allow the jury to conclude that Zuniga did not steal
the scanner.
       Moreover, it was not necessary for the People to establish that defendant sold the
stolen scanner to Zuniga. That is not a required element of grand theft. (See People v.
Davis, supra, 19 Cal.4th at p. 305.)
       Defendant’s reliance on People v. Morris (1988) 46 Cal.3d 1 (Morris), overruled
on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5, is misplaced.
Morris held that “[i]n the absence of any substantial evidence that the taking was
accomplished either before or during the killing by means of force or fear, we must

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conclude that the evidence will not support a conviction of robbery. Absent substantial
proof of the robbery, the special circumstance finding of robbery-murder must fall.
[Citations.]” (Morris, supra, at p. 21.)
       Defendant claims Morris is similar to the present case for reasons we have
discussed: because there was no evidence that the scanner was in the storage container
when defendant was there, no evidence that the interaction between Alire and defendant
took place after the Holck theft, and no evidence that defendant sold the stolen scanner to
Zuniga; moreover, the evidence supports an inference that Zuniga stole the scanner from
Holck. But as we have seen, there was ample evidence that the scanner was in the
container at the time defendant had access to it; the timing of the Alire interaction is not
determinative; and a sale from defendant to Zuniga is not an element of the offense.
Finally, even if the evidence allows an inference that Zuniga stole the scanner, the jury
had no obligation to draw the inference because there was abundant if not overwhelming
contrary evidence. Defendant’s reliance on Morris is misplaced.
       In sum, defendant’s grand theft conviction is supported by substantial evidence.
(People v. Boyer, supra, 38 Cal.4th at pp. 479-480.)
                                              II
                                      Restitution Fines
       Defendant contends “the $280 in restitution and parole [revocation] fines were not
authorized by the controlling version of sections 1202.4 and 1202.45”; thus, the “fines
should be reduced to $200, or the matter remanded.” Defendant is wrong.
       The probation report recommended restitution fines in the amount of $280, but did
not characterize the amounts as “minimum” fines.
       At sentencing in April 2013, defense counsel requested that the probation report
be corrected on an unrelated point and submitted on the corrected report. The trial court
remarked: “[Defendant] is ordered to pay a restitution fine of $280 in this case. The



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second restitution fine is suspended. If you don’t violate parole, you don’t have to pay
the second fine.”
       When defendant committed his offense in April 2011, restitution fines could range
from a minimum of $200 to a maximum of $10,000. (Stats. 2010, ch. 351, § 9, eff. Sept.
27, 2010.) Contrary to defendant’s argument, the trial court could lawfully impose $280
fines, simply by exercising its discretion in favor of fines that exceed the statutory
minimum. Defendant’s failure to object to the fines at sentencing forfeits his claim on
appeal. (People v. Scott (1994) 9 Cal.4th 331, 354.)
       In any event, defendant’s contention has no merit. While the maximum fine has
remained unchanged, the minimum fine was raised to $240 as of January 1, 2012; $280
as of January 1, 2013; and $300 as of January 1, 2014. (§ 1202.4, subd. (b)(1).)
       Restitution fines are “punishment” for purposes of the ex post facto clauses.
(People v. Hanson (2000) 23 Cal.4th 355, 360-361.) Defendant’s argument proceeds
from the undisputed premise that a trial court, having elected in its discretion to impose
“minimum” restitution fines, cannot impose $280 fines for a 2011 offense without
violating ex post facto principles.
       But nothing in the record supports defendant’s argument that the trial court elected
to impose “minimum” restitution fines. The probation report, which recommended the
$280 fines, did not characterize them as minimum or minimal; nor did it suggest that
defendant lacked ability to pay more than the minimum amount. The report noted that
defendant had been employed and had owned his own business. It also noted that, in
March 2013, defendant had been sentenced to prison for 25 years.
       At sentencing, defendant submitted on the corrected probation report, and the trial
court did not characterize the $280 restitution fines in any way. Thus, nothing in the
record supports defendant’s speculation that the court intended to impose minimum
restitution fines. The fact that $280 represents the minimum for offenses committed at



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the time of sentencing in 2013 appears entirely coincidental. No error is affirmatively
shown.
                                     DISPOSITION
      The judgment is affirmed.



                                                       NICHOLSON            , Acting P. J.



We concur:



      ROBIE                , J.



      DUARTE               , J.




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