Filed 2/28/13 P. v. Cascio CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B236388

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA094538)
         v.

JIMMY EUGENE CASCIO,

         Defendant and Appellant.



         APPEAL from judgments of the Superior Court of Los Angeles County,
Geanene Yriarte, Judge. Affirmed.

         Susan Morrow Maxwell, under appointment by the Court of Appeal, for
Defendant and Appellant Cirilo Castillo.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Lawrence M. Daniels and
William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.


                           ________________________________________
       Jimmy Eugene Cascio was convicted of felony vandalism. (Pen. Code, § 594,
subd. (a).)1 Cascio admitted multiple prior convictions with a prison term (§ 667.5,
subd. (b)) and the trial court sentenced Cascio to serve a total of eight years in state
prison. On appeal, Cascio argues his felony vandalism conviction must be reversed
because the trial court did not instruct sua sponte on misdemeanor vandalism as a lesser
included offense. We affirm.
                                           FACTS
       On June 10, 2011, at about 6:00 p.m., Pomona Police Officer Alan Pucciarelli was
driving southbound in the center lane on the 71 Freeway when he noticed Cascio on the
shoulder of the northbound side of the freeway by the railroad bridge near the Pomona
Boulevard exit. Officer Pucciarelli looked over the center barrier and observed Cascio
for three to four minutes while driving in bumper-to-bumper traffic, at approximately 10
feet per minute. The northbound side was “wide open.” Cascio was bending over at the
waist while holding a bar, prying at something on the ground. Officer Pucciarelli exited
at Mission, made a u-turn and approached Cascio’s location.
       After more officers arrived at the scene, Officer Pucciarelli had Cascio put down
the three-foot metal bar and placed him under arrest. Officer Pucciarelli then inspected
the area where Cascio had been, and saw a Caltrans electrical box. The concrete top had
been removed and there were approximately 12 inches of black wire pulled from it. The
next box down was also damaged with a hole on the concrete cover and wires pulled out
from it. Black electrical cables had been pulled approximately two to three feet out of the
box; a few had been cut.
       Robert Diaz, a Caltrans electrical supervisor, responded to the area shortly after
6:00 p.m. Diaz saw two damaged “pull boxes,” both with damaged wires. Pull boxes are
junction boxes in the ground used to splice wires together. Wires run between boxes in a
galvanized pipe connection. For a few years, Caltrans filled pull boxes with expandable
foam to prevent copper wire theft but it proved ineffective. Although wire could be

1
       All further section references are to the Penal Code.


                                              2
pulled from one box, it would be easier to cut the wires from one box and pull it out from
another box. Diaz saw cut wires in both boxes at the scene.
       The People filed an information charging Cascio with one count of felony
vandalism of Caltrans property, “the amount of . . . damage being over $400.” At trial in
September 2011, the prosecution presented evidence establishing the facts summarized
above.2 Officer Pucciarelli opined that the damage on the concrete top appeared to be
recent based on the fact that he could still see concrete dust around the hole which would
have been blown away by the wind had it not been a recent occurrence. Diaz estimated
that the cost to repair each box was approximately $2,500, the total including
replacement cost with a new anti-theft box, pulling of new wire and splices. He had
prepared a written estimate for the work that totaled $5,933.14. Diaz expressly testified
that Caltrans would not be able to repair the damage to either box for less than $400.3
       Cascio testified on his own behalf. According to Cascio, he knew the area around
the 71 Freeway because he lived under the bridge. He found the metal tool sticking up
from the ground, and pulled it out to use it as a cane because he had a hip injury and lived
on a steep dirt slope where he could fall down toward the tracks. He denied using the
metal tool to pry open or break the boxes and pull the wires from them. Cascio had seen
other people pulling wires from these boxes by tying a rope to the wire, attaching the
rope to a vehicle, and driving off. Cascio admitted that he was convicted of petty theft in
2003, 2006 and 2007, and theft in 2000, 2003, 2006 and 2007. In argument, Cascio’s

2
        During cross-examination, Officer Pucciarelli testified that, while he saw Cascio
prying in the area of the box, he did not actually see him prying into the box because the
box was below the curb line. Officer Pucciarelli initially testified that he saw Cascio
pulling on a black wire from the ground. During cross-examination, he stated that he
observed Cascio pulling on something and later concluded that it must have been the
electrical wires found near the box.
3
       During cross-examination, Diaz testified that just replacing the concrete lid of one
box would cost less than $100. He also testified that Caltrans replaces pull boxes like
those in this case with newer anti-theft boxes when there is either a wire theft or other
damage to the original box. The expandable foam can be purchased at a hardware store
for “a couple of bucks.”

                                             3
counsel asserted that Officer Pucciarelli did not actually see a theft and Cascio’s
testimony as to what happened was more reliable. Further, that Diaz’s testimony about
the amount damages was problematic.4
       The jury returned a verdict finding Cascio guilty of felony vandalism.
                                      DISCUSSION
       Cascio contends his conviction for felony vandalism, which requires proof that the
damage exceeded $400, must be reversed because the trial court did not instruct sua
sponte on the lesser included offense of misdemeanor vandalism. We disagree.
The Governing Law
       A trial court is required to instruct sua sponte on a lesser included offense when
the evidence warrants such an instruction. (People v. Breverman (1998) 19 Cal.4th 142,
148-149 (Breverman).) The duty to instruct on lesser included offenses exists
irrespective of any objection, request, or waiver by either party. (People v. Prince (2007)
40 Cal.4th 1179, 1265; People v. Barton (1995) 12 Cal.4th 186, 198.) The test for
determining when the duty to instruct arises is not an “‘any evidence, no matter how
weak,’” standard. (People v. Moye (2009) 47 Cal.4th 537, 553.) Instruction on a lesser
included offense is required when a reasonable jury could find that the defendant
committed the lesser offense. (Breverman, supra, 19 Cal.4th at p. 162.) As a corollary,
there is no duty to instruction on a lesser included offense when there is no substantial
evidence to support a conviction for the offense. (People v. Cunningham (2001)
25 Cal.4th 926, 1008.)




4
        As Cascio’s counsel put it, Diaz came to court disrespectful, chewing gum during
his testimony, and presented a disinterested and exaggerated estimate to repair the pull
boxes. “He wrote this big memorandum with all these costs, you know, the whole pay
one guy to work while the other guys hold up shovels, you know, supervisor to
stand there, you know, two CHP officers to stand there for 1300 bucks, [plus]
mileage . . . [t]hey get $42. I mean, it’s just overblown and ridiculous, and it’s not even
to repair any damage to these boxes. It’s to completely install some other device over the
box. So, that’s not reasonable and it’s not proper and it’s not $5000.”

                                             4
       In this case, the People presented evidence demonstrating that repair and
replacement of the boxes would cost $5,933.14. Exhibit 14, which was admitted at trial
indicated the following costs: labor costs for a Caltrans supervisor and four workers
$1,856.16; two California Highway Patrol officers for support $1,343.68 and
reimbursement for mileage $42; equipment costs, including five vehicles and a
compressor $203.04; and materials $2,488.26. Cascio did not present his own evidence
in support of an argument that the cost was less than $400. Instead, his trial counsel
presented an attack on the prosecution’s evidence by way of cross-examination and
argument. Trial counsel argued the boxes could be fixed without being replaced by new
tamper proof boxes and that the estimated cost of labor was overstated.
       Even if we believe the defense theory of the case, there is simply no evidence that
the replacement cost for even one of the boxes was less than $400. Perhaps Caltrans
could cheaply fix the cement lids on the pull boxes, run new wire through them and spray
inexpensive foam into the boxes instead of replacing them with the new anti-theft boxes,
as Diaz asserts. Even so, there are still significant labor and safety costs associated with
re-installing the boxes on a freeway. The estimate of $5,900 in damages may be high,
but we see no substantial evidence supporting an instruction on misdemeanor vandalism
based on the theory that the damages were less than $400. Diaz’s testimony that he could
not repair either one of the damaged boxes for less than $400 was unrefuted.
                                      DISPOSITION
       The judgment is affirmed.


                                                         BIGELOW, P. J.
We concur:


              FLIER, J.




              GRIMES, J.

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