P. v. Pohl CA3

Filed 5/8/13 P. v. Pohl 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Placer)
----
THE PEOPLE, C071860
Plaintiff and Respondent, (Super. Ct. No. 72006157)
v.
CODY EDWARD POHL,
Defendant and Appellant.
On September 8, 2010, defendant Cody Edward Pohl was charged with first
degree burglary (two counts); second degree burglary; receiving stolen property (five
counts); petty theft with priors (two counts); possession of methamphetamine; and
misdemeanor possession of paraphernalia for injecting and ingesting a controlled
substance. As to the felonies charged, it was alleged that defendant had a prior strike.
As to the first degree burglary counts, it was alleged that defendant had a prior serious
felony conviction.
Defendant waived jury trial and the matter was then tried to the trial court.
On September 17, 2010, after some counts were dismissed, the trial court found
defendant guilty of one count of first degree burglary, two counts of second degree
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burglary, receiving stolen property, petty theft with a prior, possession of
methamphetamine, and possession of paraphernalia . The court found defendant not
guilty of one count of petty theft. The court found true that defendant had previously
been convicted of robbery, a strike, and had served a prior prison term.
On November 12, 2010, the trial court entered “findings and statement of decision
following court trial,” which summarized the facts found by the court. We set out parts
of this statement as follows:
“Mirlaine B[.] [fn. omitted] and the defendant were married in 2002 and lived in
North Shore, Lake Tahoe [on] Lake Forest Road. Mirlaine’s daughter from a previous
relationship, Meline B[.], also resided in the home and had her own bedroom.
“In about 2008, Mirlaine and the defendant decided to build a home on a vacant
lot [on] Alder Street in Tahoma. . . . However, before the home was completely finished,
they ran short of money after a falling out with their contractor. Also, for the past three
years the relationship between the defendant and Mirlaine had begun to sour as she
noticed a change in his behavior. . . . Finally, Mirlaine . . . cut off the defendant’s money
and stopped paying bills for the new home construction, which was in the defendant’s
name. In response, the defendant told her that if she didn’t give him money he would
steal it from someone.
“On March 5, 2009, at a pawn shop in Reno, the defendant pawned a guitar
belonging to M[eline] B[.] that she had kept in her closet in her bedroom at the residence
on Lake Forest Road. Previously, she had specifically informed the defendant that he
was not allowed to enter her bedroom. The defendant is charged with burglary of the
bedroom in Count One.
“Mirlaine and her daughter became afraid of the defendant to the point that on
March 15, 2009, Mirlaine obtained a restraining order against the defendant preventing
him from coming to the residence and two days later she filed for divorce.
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“By March 2009, the home under construction on Alder Street was nearly
complete. . . . There was convincing evidence that following the issuance of the
restraining order, the defendant began to live at the Alder Street residence.
“In mid-August 2009, someone stole three newspaper vending machines from
various locations in the North Shore area, including one from the Fireside cafe area.
Three weeks later, three more newspaper vending machines in the Tahoe area also turned
up missing.
“Mirlaine had a cleaning business wherein she had been cleaning both . . .
businesses and residences for the past 26 years. One of the commercial establishments
that Mirlaine cleaned regularly was the Bridge Tender Restaurant in Tahoe City. . . .
Earlier in their marriage, the defendant had helped Mirlaine clean at the Bridge Tender.
In the restaurant’s storage room there were two safes that the owners had set in cement to
prevent their theft. Each safe was approximately two feet by two feet in size and
weighed approximately 40-60 pounds. . . .
“Early on the morning of August 16, 2009, Mirlaine went to the Bridge Tender to
clean and discovered that it had been burglarized, apparently sometime the night before.
The Sheriff was summoned and it was determined that someone had forced open the front
door of the business, broken away the cement [e]ncasing the safes, and taken them. . . .
The restaurant manager estimated that the safes may have contained as much as
$10,000. . . . The defendant is charged with [s]econd [d]egree [b]urglary of the Bridge
Tender in Count Three.
“Mirlaine also cleaned at two lake front homes, units B and C, [on] West Lake
Blvd[.] in Homewood. Unit C . . . served as a vacation rental that people could rent on a
weekly basis. To gain access there was a key kept in a key box with a code. On
occasion, however, Mirlaine found the units were left unlocked and . . . open. . . .
“Mirlaine had only been cleaning at Unit C since June 2009, but she had
previously told the defendant about her job there. . . .
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“On or about August 25th, Mirlaine went to Unit C to clean and discovered that
the television was missing. . . . The missing television is large and heavy and takes two
persons to move or carry it. . . .
“[On] August 25th, . . . a person named James Polce pawned the television . . . .
On the back of the television set on one side, in an area where one would touch the
television if two persons were carrying it, was the defendant’s fingerprint. The defendant
is charged with [f]irst [d]egree burglary of unit C in Count Two.
“On September 12, 2009, the defendant was observed to exit a Safeway store in
Kings Beach without paying for groceries . . . . (Count Nine.)
“On September 2, 2009, investigators went to the . . . Alder Street residence and
located in the backyard . . . one of the two safes taken during the Bridge Tender
burglary. . . .
“Inside the Alder Street residence, detectives also found the six missing newspaper
vending machines, as described above. The coin box of each had been broken open.
(Count Four[.])
“About two blocks away from the Alder [Street] residence, in the woods,
detectives found a Starter brand shoe [of which] the sole pattern matched exactly the shoe
wear prints left at the scene of the Bridge Tender burglary.
“On September 23, 2009, the defendant was arrested and in a jacket that belonged
to him was found a small, but usable, amount of methamphetamine and a smoking
implement. (Counts Eleven and Twelve.)
“On October 2, 2009, detectives searched a wooded area of Rubicon Road and
found the second safe taken during the Bridge Tender burglary. The safe had been
opened by force and drilled. It obviously had been hit numerous times by a large object,
such as a sledge hammer [sic]. The exterior of the safe is orange . . . , consistent with . . .
orange . . . paint noted on [a] sledgehammer found at [the] Alder Street [residence].
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“On October 8, 2009, detectives were led by James Polce to a location . . . where
. . . some items that had been contained within the orange safe were found buried in the
ground under a pile of rocks. During an interview with police and during his testimony,
the defendant said he knew James Polce as a person he had allowed to reside in the Alder
Street residence.
“At trial, the defendant testified and denied committing any of the charged
offenses. . . .
“The Court found most, if not all, of the defendant’s testimony incredible.”
After denying defendant’s motion to strike the strike, the trial court sentenced
defendant to 13 years 4 months in state prison. The court purported to strike the five year
prior prison term enhancement “in the interest of justice.”
The trial court thereafter recalled the sentence pursuant to Penal Code
section 1170, subdivision (d), because the court had concluded it lacked discretion to
strike the prior prison term enhancement. The court then resentenced defendant to 14
years 4 months in state prison, changing its prior sentence in several regards.
On appeal, this court reversed defendant’s conviction on second degree burglary,
modified his conviction for first degree burglary to second degree burglary, reversed the
true finding on the prior prison term allegation, remanded the matter for resentencing,
and otherwise affirmed the judgment. (People v. Pohl (May 22, 2012, C066710)
[nonpub. opn.].)
On remand, the trial court resentenced defendant to a state prison term of six years
eight months. The court awarded defendant 624 days of presentence custody credit (416
actual days and 208 conduct days). The court imposed a $1,000 restitution fine and a
suspended $1,000 restitution fine, a $200 court security fee, and a $150 criminal
conviction assessment.
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
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determine whether there are any arguable issues on appeal. (People v. Wende (1979)
25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental
brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed,
and we received no communication from defendant. Having undertaken an examination
of the entire record, we find no arguable error that would result in a disposition more
favorable to defendant.
DISPOSITION
The judgment is affirmed.
ROBIE , Acting P. J.
We concur:
MAURO , J.
DUARTE , J.
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