People v. Cascio CA2/8

Filed 2/28/13 P. v. Cascio CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B236388

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA094538) v.

JIMMY EUGENE CASCIO,

Defendant and Appellant.

APPEAL from judgments of the Superior Court of Los Angeles County, Geanene Yriarte, Judge. Affirmed.

Susan Morrow Maxwell, under appointment by the Court of Appeal, for Defendant and Appellant Cirilo Castillo.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

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Jimmy Eugene Cascio was convicted of felony vandalism. (Pen. Code, § 594, subd. (a).)1 Cascio admitted multiple prior convictions with a prison term (§ 667.5, subd. (b)) and the trial court sentenced Cascio to serve a total of eight years in state prison. On appeal, Cascio argues his felony vandalism conviction must be reversed because the trial court did not instruct sua sponte on misdemeanor vandalism as a lesser included offense. We affirm. FACTS On June 10, 2011, at about 6:00 p.m., Pomona Police Officer Alan Pucciarelli was driving southbound in the center lane on the 71 Freeway when he noticed Cascio on the shoulder of the northbound side of the freeway by the railroad bridge near the Pomona Boulevard exit. Officer Pucciarelli looked over the center barrier and observed Cascio for three to four minutes while driving in bumper-to-bumper traffic, at approximately 10 feet per minute. The northbound side was “wide open.” Cascio was bending over at the waist while holding a bar, prying at something on the ground. Officer Pucciarelli exited at Mission, made a u-turn and approached Cascio’s location. After more officers arrived at the scene, Officer Pucciarelli had Cascio put down the three-foot metal bar and placed him under arrest. Officer Pucciarelli then inspected the area where Cascio had been, and saw a Caltrans electrical box. The concrete top had been removed and there were approximately 12 inches of black wire pulled from it. The next box down was also damaged with a hole on the concrete cover and wires pulled out from it. Black electrical cables had been pulled approximately two to three feet out of the box; a few had been cut. Robert Diaz, a Caltrans electrical supervisor, responded to the area shortly after 6:00 p.m. Diaz saw two damaged “pull boxes,” both with damaged wires. Pull boxes are junction boxes in the ground used to splice wires together. Wires run between boxes in a galvanized pipe connection. For a few years, Caltrans filled pull boxes with expandable foam to prevent copper wire theft but it proved ineffective. Although wire could be