People v. Lewis

Opinion

CARR, J.

Defendant Robert Orin Lewis, Jr., and codefendant, Michael Ray Fowler, were each charged by information with two counts of burglary (Pen. Code, § 459—count I, burglary of the Country Store; count II, burglary of the Coffee Mug Restaurant) and one count of possession of tools designed to break into a vending machine (Pen. Code, § 466.3—count III). Each was convicted by a jury of counts II and III but acquitted on count 1.

1

Sentenced to state prison for the middle term of two years for the burglary with a concurrent term of one year in the county jail for the possession conviction, defendant appeals contending: (1) juror misconduct requires reversal; (2) the evidence was insufficient to support the burglary conviction; and (3) because a boltcutter is not a tool “designed” to break into a vending machine as required by Penal Code section 466.3, there was a failure of proof as to count III. The last contention has merit.

Facts

At approximately 10:30 p.m., July 30, 1983, Robert Race discovered that his business establishment in Walker, named the Country Store, had been burglarized and $200 to $300 worth of coins had been taken from video machines.

[596]

On that same date, just before midnight, in nearby Bridgeport, Sue H. was jogging when she saw defendant walk from a white, primed van to an ice vending machine and use a pair of boltcutters to cut the locks. When defendant saw Sue he walked back to the van and handed the boltcutters to a male in the van. Sue returned to her place of employment and notified the police.

Mono County Deputy Sheriff Sheldon Rutherford, who was investigating the burglary of the Country Store, received word of Sue’s observations shortly after midnight. About 12:40 a.m., he and Investigator Daniels stopped the van seen by Sue. Defendant was driving and codefendant Fowler, who was the registered owner of the van, was in the back. Although the boltcutters could not be found when the van was searched, officers found a plastic butter bucket behind the driver’s seat containing $65.90 in quarters, dimes and nickles.