People v. Summers CA3

Filed 4/8/14 P. v. Summers CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C073525

Plaintiff and Respondent, (Super. Ct. No. CRF11-253)

v.

DWIGHT ANTHONY SUMMERS,

Defendant and Appellant.

A jury found defendant Dwight Anthony Summers guilty of grand theft (Pen. Code, § 487, subd. (a))1 and not guilty of an alternative count of petty theft with three prior theft related convictions (§ 666, subd. (a)). He was sentenced to prison for eight months (one-third the midterm of two years) consecutive to the sentence imposed in an unrelated case. Defendant was awarded no credit for time served and was ordered to pay

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

1

a $280 restitution fine (§ 1202.4, subd. (b)) and a $280 restitution fine suspended unless parole is revoked (§ 1202.45). On appeal, defendant contends (1) his conviction is not supported by sufficient evidence, and (2) his restitution fines must be reduced to the statutory minimum of $200. We affirm. FACTS Prosecution Case-in-Chief Paul Holck is the owner and manager of H & S Automotive in Marysville. Holck has known defendant for five or six years, having attended the same church. H & S Automotive has done quite a bit of work on defendant’s car. On a Saturday in April 2011, defendant appeared at H & S Automotive. He was “dirty” and “didn’t look right.” His eyes were glossy and his speech was not smooth. He said he needed to take a shower or wash himself off. Holck, the only other person at the shop, allowed defendant to use the bathroom. Next to the bathroom was an unlocked storage container in which “a lot of [the shop’s] good tools” are stored. Holck had been using tools from the container that day. Holck testified that, when defendant used the bathroom, the storage container contained a brand new Solus Pro Scanner, which is “basically [a] little computer[]” that is “used to diagnose . . . engine codes” and had cost Holck “roughly $4,000.” The container is where the scanner “is always kept.” On the Monday following defendant’s Saturday visit, Holck discovered that the scanner was missing. There were no signs of forced entry into the shop. The shop’s alarm did not sound, and no one entered a code to deactivate the alarm. Aside from defendant and Holck, only Holck’s technician and secretary had access to the garage area.