People v. Hurd CA6

Filed 9/3/24 P. v. Hurd CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050635 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. 20CR02232)

v.

CHARLES WAYNE HURD,

Defendant and Appellant.

Defendant Charles Wayne Hurd was convicted by jury of two counts of second degree burglary (Pen. Code, § 459; counts 1 and 3), petty theft (Pen. Code, § 484; count 2), grand theft (Pen. Code, § 487, subd. (a); count 4), and felony taking or driving a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a); count 5). Based on the issues defendant raises on appeal, we will reverse the conviction on count 4 and reduce the conviction on count 5. I. BACKGROUND The charges against defendant arose from two incidents in September and October of 2018. As defendant does not challenge his convictions on counts 1 through 3, our factual summary is limited to the October 2018 incident on which counts 4 and 5 are based. A pickup truck with copper wire in its bed was stolen from a Pacific Gas & Electric (PG&E) facility in Santa Cruz and was found about a mile away from the facility with its engine running. Its ignition had been “jimmied” or “punched out.” Surveillance

video showed two people entering the facility and leaving with the truck. Defendant was later identified as one of the people who stole the truck. On the same day, a PG&E employee inspected the warehouse where copper wire was stored and found that a significant amount was missing. Another PG&E employee testified over defense objection that the value of the missing wire was approximately $11,000. The employee arrived at that amount using her personal knowledge of the warehouse’s inventory and information from a computer database that contained unit prices for various commodities. She did not know how the database was maintained or where the pricing information came from, but she knew that more than $1,000 worth of copper material was usually stored in the warehouse. The trial court took judicial notice that “according to the NASDAQ Commodity Tracker … the price per pound of copper was $2.74” on the day of the incident. Count 4 charged defendant with stealing more than $950 worth of copper wire. Count 5 charged defendant with stealing the truck. With respect to that count, the trial court instructed the jury as follows: “The defendant is charged in Count 5 with unlawfully taking or driving a vehicle. To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant took or drove someone else’s vehicle without the owner’s consent; and, two, when the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time. A taking requires that the vehicle be moved for any distance, no matter how small.” The jury found defendant guilty as charged on counts 1, 3, 4, and 5. On count 2, the jury found defendant not guilty of grand theft but guilty of petty theft as a lesser included offense. The jury also found true an allegation that the manner in which the crimes were carried out indicated planning, sophistication, or professionalism. (Cal. Rules of Court, rule 4.421(a)(8).) The trial court sentenced defendant to a three-year upper term on count 1 and a consecutive one-year term on count 5. Punishment was