People v. Tobey CA1/1

Filed 1/29/14 P. v. Tobey CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A134882 v. DAVID TOBEY, (Solano County Super. Ct. No. VCR209863) Defendant and Appellant.

INTRODUCTION Defendant David Tobey appeals from his conviction, following jury trial, of cutting a utility line (Pen. Code, § 591)1 and felony vandalism (§ 594, subd. (a)). The court placed defendant on formal probation subject to various terms and conditions, including that he “seek and maintain full-time gainful employment and/or vocational training or a combination of those.” He contends the felony vandalism conviction must be reversed because there is no evidence he caused $400 or more of damage. He also contends the employment/training probation condition is unreasonable under the circumstances. We affirm both the conviction and probation condition. FACTUAL AND PROCEDURAL BACKGROUND In December 2010, California Highway Patrol Officer William Gerstmar was on routine patrol with his partner in the Vallejo/Benicia area. The officers made two “sweeps” along highways 680 and 780 in Benicia at about 7:30 p.m. and 9:30 p.m., and

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

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did not notice anything unusual about the freeway lights. On a third sweep, at 2:16 a.m., the officers passed a pickup truck stopped on the shoulder of highway 780 with a person standing near its front bumper. They also noticed the freeway lights in the area were no longer working. The officers turned their patrol car around and headed toward the truck to make contact with the person they had seen. They pulled in and stopped behind the truck and then found defendant lying face down in the mud with his hands underneath him. A flashlight lay on the ground nearby, and about two feet away was an open utility box with cut wires. Gerstmar heard movement in a nearby bush. Meanwhile, he yelled at defendant to show his hands. Defendant did not comply, and showed his hands only after the officers drew their weapons and repeated the command. When Gerstmar asked what defendant was doing in the area, he replied he had run out of gas. Gerstmar patted him down, and discovered a pair of wire cutters and a screwdriver. Upon examining the nearby utility box, Gerstmar observed two wires in the box had been cut, and he found “two or three, five to six-inch segments of wire matching the wire that was in the box laying outside the box . . . within arm’s reach of where [defendant] was laying.” On the window of the truck, a note read “[o]ut of gas, be back soon.” The note was written on the back of a copper recycling receipt from about two weeks prior made out to someone other than defendant. The officers placed defendant in the back of the patrol car and asked him “who was out there[?]” Defendant initially replied “no one,” but eventually admitted “his partner was out there.” Despite searching with additional officers and a canine unit, the officers did not find anyone else. The officers then examined other nearby utility boxes within 300 yards. They found “nine other boxes” with opened lids, and Gerstmar believed “seven of the boxes had wires severed.” Although he did not contact Caltrans to check what specific tools were necessary to open the boxes, Gerstmar opined, based on his “daily experience,” a screwdriver would suffice. The Solano County District Attorney filed an information in March 2011, charging defendant with felony cutting of a utility line (§ 591), felony vandalism over $400 (§ 594, subd. (a)), and misdemeanor possession of burglar tools (§ 466). Before trial, defendant