People v. Tikhomirov CA3 ( 2014 )

Filed 11/3/14 P. v. Tikhomirov 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C073911
Plaintiff and Respondent, (Super. Ct. No. 11F08684)
v.
ALEKSANDR TIKHOMIROV,
Defendant and Appellant.
THE PEOPLE, C074477
Plaintiff and Respondent, (Super. Ct. No. 11F08684)
v.
NICOLAI TCACSIN,
Defendant and Appellant.
At a joint trial in April 2013, a jury found codefendants Aleksandr Tikhomirov
and Nicolai Tcacsin guilty of grand theft and felony vandalism in Citrus Heights in
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November 2011, and the receipt of stolen property and misdemeanor possession of drug
paraphernalia in Elk Grove in December 2011. (Pen. Code, §§ 487, subd. (a), 594, subd.
(a), 496, subd. (a) & Health & Saf. Code, § 11364.1, subd. (a).) The trial court suspended
imposition of sentence and granted probation to both defendants, conditioned inter alia on
a jail sentence.
We have consolidated defendants’ separate appeals for the purpose of decision
only. Defendants both argue that the trial court erred in admitting evidence of an
uncharged offense; their convictions for grand theft and possessing stolen property are
not supported by substantial evidence; the trial court should have instructed sua sponte on
attempted theft as a lesser included offense; a probation condition regarding their
possession of metals is overly broad; and a probation condition of paying booking and
jail classification fees is invalid absent evidence of the actual administrative costs to the
county. In individual arguments, defendant Tikhomirov maintains that his misdemeanor
conviction is not supported by substantial evidence, and defendant Tcacsin identifies
discrepancies between the oral pronouncement of his probation and the written order of
probation.
The People concede the evidence is insufficient to support the convictions for
grand theft and, upon our request for supplementary briefing, concede that the evidence
is also insufficient to support a conviction for attempted grand theft. (These concessions
moot defendants’ argument regarding the absence of an instruction on attempted theft.)
The People also concede the evidence is insufficient to support defendant Tikhomirov’s
conviction for possession of drug paraphernalia. The People further concede the need to
amend the probation condition governing metal possession, and to correct the probation
order to reflect the court’s oral pronouncement in defendant Tcacsin’s case. We will thus
affirm the orders of probation as modified in these respects, and direct the trial court to
issue amended probation orders.
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FACTUAL AND PROCEDURAL BACKGROUND
A. The Citrus Heights Incident
In November 2011, the owners (husband and wife) of a vacant rental home drove
to the property to check on it. It was late morning. The property was still posted with a
“for rent” sign, though a tenant was scheduled to take residence in mid-December. The
owners saw a white van partially blocking the driveway.
They had not authorized their property management company to do any work at
the house. The wife entered through the front door, while the husband went into the back
yard. He found two men in the process of disassembling the air-conditioning
compressor. The fan unit had been set to the side, its wires cut. The coolant line had
been cut without any collector being present. The men were not wearing work gloves.
The men appeared to be startled. They claimed to be repairing the unit pursuant to
a work order. The husband was familiar with compressor repairs, and the disassembly
did not appear to be for the purposes of repair. The men said they had the work order in
their van. They gathered up their tools and walked toward the gate, the husband
following them. As one man purported to be searching for the work order, his shorter
companion got into the van and started the engine. The first man then jumped into the
passenger seat. The husband initially jumped in after him, holding onto his shoulders;
realizing this was “pretty stupid,” he hopped out. He and his wife, who had come out of
the house, wrote down the van’s license plate number.
The responding officer ran a check on the license plate the victims provided. It
was a white Chevy van registered to a person other than defendants. A few weeks later,
the officer prepared a photo lineup that included a picture of the registered owner and
five nonsuspects. The husband identified one of the other pictures as looking somewhat
like one of the people, but he was not sure.
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A second officer ran a followup vehicle registration check after the first officer
(because both officers testified that there was a lag time in updates). The second officer
discovered that the registration had been changed to defendant Tcacsin about a week after
the first officer had checked the records. He also learned the van had been towed after
the arrest of defendants in Elk Grove in late December. The second officer created two
new separate photo lineups including each defendant.
Because he had a large caseload to which to attend, the second officer put the
husband and wife in the same room at the same table, seated about a chair apart, in order
to make their identifications. (The officer had incurred a reprimand in the past for doing
this.) The couple sat in silence making their identifications before handing them to the
officer. The husband selected the pictures of the two defendants in the two lineups, and
was certain of his identifications of defendant Tcacsin as the driver and defendant
Tikhomirov as the passenger. The wife also identified both defendants, with at least 90
percent certainty. The officer then let them know that defendants were under arrest.
All told, the husband had spent at least six to eight minutes in the company of the
two men. He was certain at trial that defendants were the two men. The wife was able to
identify defendant Tcacsin at trial, but not the taller defendant Tikhomirov. It cost them
$6,000 to replace the compressor unit.
B. The Elk Grove Incident (Bromfield Court)
At 10:00 a.m. on December 27, 2011, a neighbor observed a white Chevy van
parked in the driveway of a vacant house across the street that had a “for sale” sign in the
yard. There had not been any activity at the house, so this caught his attention. He then
saw two men wearing gloves and dark hats walk out of a side gate carrying parts from an
air conditioner (with which he was familiar as an electrician). He thought the men were
Caucasians in their early thirties; he did not get “a good look” at their faces. They
got into the van, the shorter man driving. The neighbor took a picture and called 911.
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An officer responded about an hour later. The neighbor told him that he would
not be able to recognize the men. The air conditioner in the back yard of the vacant home
was disassembled; its housing lay in pieces on the ground, while its components and the
pipe connections to the home were missing. The cuts on the pipes left behind appeared
fresh, and there were oily black smudge marks on the housing pieces. There were also
“glove marks,” which the forensic witness described as marks looking like hands or
fingers but having textile patterning.
At about the same time, the police detained a white Chevy van about a half-mile
away in response to a dispatch about the neighbor’s observations. At the request of the
police, the neighbor went to the location, and said it was the same van that he had seen
across the street. Defendant Tcacsin was driving, and defendant Tikhomirov was the
passenger. At the police station, the neighbor thought defendant Tikhomirov had the
same stature, build, and clothing as the passenger he had seen. Similarly, he thought
defendant Tcacsin had the same stature, build, and clothing as the driver. At trial, he
believed defendants were the men he had seen across the street.
There was a glass pipe suitable for smoking methamphetamine in the pocket of the
van’s driver-side door. One officer said it was inside a glove; another officer said it was
in plain view when he approached the door. The police did not find any hats in the van.
There were two other pairs of gloves in the van with the initials of defendant Tikhomirov
on them, and “a whole lot” of components from air conditioners (copper coiling and
pipes, along with other components). The cut marks on the piping appeared to be fresh.
The police did not attempt to match them to the compressor on Bromfield Court (or the
compressor in the uncharged offense we next relate) because it would have been too
difficult, akin to assembling a jigsaw puzzle. The coils typically do not have any
markings to indicate that they were the same brand as the Bromfield Court compressor,
nor do most components have serial markings, so nothing connected these components
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specifically with the Bromfield Court compressor. There were three items with serial
numbers, but the police did not check to see whether they could be matched with the
Bromfield Court compressor.
Defendants did not have any oily black marks on their hands or clothing, nor were
there any on the gloves in the van. Defendants also did not have any copper filings on
their person.
C. The Uncharged Incident (Allenford Place)
On the day after the Bromfield Court incident, the police were canvassing the
neighborhood for additional thefts from vacant homes. About a half-mile from the
Bromfield Court incident, they saw a vacant house with a “for sale” sign. When they
went into the back yard, the compressor had been disassembled and its components were
missing. The nature of the damage was the same as at Bromfield Court. They spoke
with two neighbors about observations they had made on the day before.
One neighbor worked as an engineer for Apple; he generally came home for lunch
somewhere between 11:00 a.m. and 2:00 p.m. The earliest he would be home would be
11:12 a.m. if he timed the traffic signals perfectly. (He initially testified, however, that
he was on his winter break from work after Christmas when he made his observations.)
He saw a white van in front of the vacant home down the block “around noon.” He did
not see anyone with the van, and did not see it leave. He thought a picture of defendants’
van looked similar to the one he had seen.
The other neighbor had been returning from a mid-morning walk. He saw a white
van turn onto the street, stop in front of the vacant home, then drive slowly away. In the
van were two younger Caucasian men with short black hair, neither of whom was
wearing a hat. He did not get a good enough look at either of them to be able to identify
them, and did not recognize defendants in court. He also thought a picture of defendants’
van resembled the one he had seen.
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DISCUSSION
I. Any Error in Admitting “Other Crimes” Evidence Was Harmless
The prosecutor initially had sought to introduce evidence of a total of four other
copper-harvesting incidents in the same Elk Grove neighborhood on the issue of intent,
because she anticipated that defendants would claim that they were at the Citrus Heights
residence pursuant to a work order. The Allenford Place incident was the only one of
these in which witnesses had seen anything that might connect any suspects with the theft
of components. For that reason, the trial court admitted only that incident (see 1 Witkin,
Cal. Evidence (5th ed. 2012) Circumstantial Evidence, § 83, p. 468 [evidence of similar
crimes not linked to anyone at all clearly inadmissible even where occurring in
reasonable proximity of time and place]), not finding it particularly inflammatory, and
relevant not only on the issue of intent but also as evidence of a common scheme. The
prosecutor referred only to the latter theory in closing argument. The court’s limiting
instruction referred to both theories.
Relying on the general principle that evidence of other crimes can be highly
inflammatory (citing vintage cases such as People v. Griffin (1967) 66 Cal.2d 459, 466,
from an era more sensitive to this type of evidence), defendants argue at length that the
minimal probative value of the Allenford Place incident did not warrant exposing them to
this prejudice: intent in the Citrus Heights incident was only technically at issue (and the
Bromfield Court incident was of itself probative on that point), and the weakness of the
identification of defendants as the perpetrators of the Allenford incident did not justify
its introduction as a common plan in proof of the identity of the perpetrators of the
Bromfield incident (see 1 Witkin, Cal. Evidence, supra, Circumstantial Evidence, § 94,
pp. 486-487; see also 1 McCormick on Evidence (6th ed. 2006) Character and Habit,
§ 190, pp. 752-755, 763 [common plan “seem[s] to be most often relied upon to show
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identity”]).1 They thus contend that despite the limiting instruction on use of this
evidence, they are entitled to reversal given issues of identification in the Citrus Heights
incident (on which we do not need to elaborate further) or the purported weakness in the
evidence connecting them with the Bromfield Court incident (which we discuss in pt. III.,
post, pp. 9-10).
We agree that the connection between defendants and the uncharged incident is
tenuous, but the Allenford Place incident is not entirely lacking in probative value. While
evidence of other crimes can in theory be highly inflammatory, the circumstances of the
Allenford incident did not give rise to any possibility of creating an emotional bias on the
part of the jury against defendants unrelated to the evidence and issues (People v. Doolin
(2009) 45 Cal.4th 390, 439), nor did it provide such strong proof of guilt of uncharged
conduct that there would be a risk the jury would convict them of the present offenses
regardless of the state of the evidence (People v. Harris (1998) 60 Cal.App.4th 727, 738-
739). We therefore cannot find an abuse of discretion in the admission of the Allenford
Place incident.
II. The Convictions for Grand Theft Must Be
Reduced to Attempted Petty Theft
Defendants maintain that evidence of any asportation of the Citrus Heights air-
conditioning components is lacking (People v. Meyer (1888) 75 Cal. 383, 384 [“it must
be shown that the goods were severed from the possession or custody of the owner”]),
1 Defendants also assert that a theory of common plan is not relevant to prove identity,
citing the adumbrative distinction drawn in People v. Ewoldt (1994) 7 Cal.4th 380, 393-
394 and footnote 2, between those two purposes of introducing the evidence of other
crimes. As noted in the treatises cited in the text, it is black letter law that proof of a
common plan can be used to establish that a defendant committed the charged crime. In
any event, given the admissibility of the evidence on the issue of intent, common plan
becomes superfluous.
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as well as any evidence of their fair market value.2 The People ultimately have conceded
both of these points, and agree the proper remedy is to reduce both of the convictions to
attempted petty theft. (Pen. Code, §§ 664, 484, subd. (a); see People v. Navarro (2007)
40 Cal.4th 668, 679-681 [statutory power to modify judgment to lesser offense that
evidence supports (finding power limited to single lesser offense, not multiple lesser
offenses)].) We accept the concession and will modify the judgments accordingly. This
disposition moots the argument that the trial court erred in failing to instruct on attempt
sua sponte.
III. There Is Sufficient Evidence of Receiving Stolen Property
Defendants argue the evidence that they received stolen property in the Bromfield
Court incident is insufficient because the eyewitness could say only that defendants, their
van, and the components retrieved from their van (which appeared to be freshly removed
from a unit) were consistent with the van, the men, and the components that the
eyewitness had observed. Otherwise, the only connection between defendants and the
observed suspects was their unexplained propinquity to the scene of the crime 20 to 50
minutes after the observations of the eyewitness. They argue the probative value of this
evidence is legally insufficient because the eyewitness had told the police that the
suspects were wearing dark hats (as opposed to having dark hair), which were not found
in defendants’ van; defendants did not have any black smudge marks or any other pipe-
removal debris on their person or gloves, and no one testified that any of the components
in the van had smudge marks on them; there were some components in the van with a
different brand than the model of the Bromfield Court unit, and no one specifically
2 Although the prosecutor apparently believed otherwise, we noted more than three-
quarters of a century ago that the replacement cost of a stolen item is irrelevant to this
element of Penal Code section 484. (People v. Simpson (1938) 26 Cal.App.2d 223, 228-
229; cf. People v. Lizarraga (1954) 122 Cal.App.2d 436, 438 [it is fair market value and
not value to any particular individual that is relevant].)
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connected the others with the Bromfield unit; and there was a lack of probative value in
statements of the two witnesses to the Allenford Place incident, one of whom provided a
time inconsistent with defendants’ being able to commit it (given the time of their arrests)
and neither of whom was able to identify defendants positively as the men they had seen.
Defendants concede that the evidence of their proximity in time and space to the
observations of the eyewitness rationally raises an inference of their guilt. For our part,
we agree that the various discrepancies and shortcomings in the proof that they have
identified are capable of raising an inference that they are not guilty. The exculpatory
evidence, however, does not rise to the level of raising a reasonable doubt as a matter of
law such that we can reject the jury’s resolution of the issue on these contested facts as
being irrational, improbable, or speculative, nor does the exculpatory evidence leave the
inference of guilt resting on a “ ‘mere scintilla of evidence.’ ” (Kuhn v. Department of
General Services (1994) 22 Cal.App.4th 1627, 1633.) Defense counsel urged upon the
jurors the instructed principles that they must resolve conflicting inferences, if possible,
in favor of innocence and could not rest their verdicts on speculation, and then
highlighted all the points defendants make here. That the jury did not find the
exculpatory evidence persuasive is not something defendants or this court can gainsay.
IV. The Condition of Probation Must Be Modified
Defendant Tikhomirov’s order of probation provides, “Defendant shall not
knowingly possess (brass or copper) plates, pipes, or wiring, ferrous or non-ferrous
metals, other than CRV (cans, bottles, or plastic), for the purpose of recycling or resale.
Defendant shall not knowingly possess the tools used for removal of copper wiring
[(specifying several examples)] without prior approval of this probation officer, or at a
place of employment, for use in employment and during business hours.” In his order of
probation, defendant Tcacsin’s similar condition provides, “Other than for his
employment, Defendant shall not possess any [of the same examples of tools used for
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removal of copper wiring]; Defendant shall not knowingly possess brass or copper plates,
pipes, wiring, [or] ferrous [or] nonferrous metals, other than cans . . . for the purposes of
recycling.”
In essence, defendants complain that the written order of probation is ambiguous:
It is unclear whether the possession of the specified types of metals is prohibited for any
purpose, except for cans with redemption value for purposes of recycling or resale; or
whether possession of the metals for the purposes of recycling or resale is prohibited,
except for cans with redemption value. The parties purport to find an indication that the
trial court intended the first interpretation in its oral pronouncement of probation, but it
should be kept in mind that the punctuation in the reporter’s transcript is not that of the
trial court itself.
As a matter of simple logic, the former would be the interpretation more likely to
further the purpose of deterring future misconduct, because the latter would not prevent
defendants, if caught red-handed with the prohibited materials, from claiming a purpose
other than recycling or resale. In any event, the basic interpretive principle of the “last
antecedent rule” resolves any ambiguity in the manner that the parties suggest, because it
applies qualifying phrases to the phrases immediately preceding them rather than to more
remote parts of the sentence. (People v. Le (2006) 137 Cal.App.4th 54, 62.) While this
would seem to end the matter without any need to modify the condition of probation, in
an abundance of caution (and because the orders of probation need modification in other
respects), the trial court should amend the restriction on possession of metals in both
cases to read: “Defendant shall not knowingly possess brass or copper plates, pipes,
wiring, or ferrous or nonferrous metals, for any purpose; defendant may possess cans,
bottles, or plastic with California redemption value for the purposes of recycling or
resale.”
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V. The Challenges to the Booking/Jail Classification Fees Are Forfeited
Pursuant to Government Code section 29550.1, if the “arresting agency” is a city
(here, the Elk Grove Police Department), the trial court must order reimbursement to the
city (as a condition of probation) for any “criminal justice administration fee” that the
county imposed for the defendant’s arrest (id., § 29550, subd. (a)(1)). Based on the trial
court’s identification of a different provision that applies where the arresting agency is
not a city or county (id., § 29550.2),3 defendants argue we must strike the condition of
their probation requiring their payment of a $340.01 main jail booking fee and $62.09
main jail classification fee as administrative fees, because the record does not contain
evidence of the county’s actual administrative costs. The People argue only that
defendants have forfeited this claim because they did not raise this objection in the first
instance in the trial court. (Citing People v. McCullough (2013) 56 Cal.4th 589, 591, 598
(McCullough).) Defendants argue McCullough is distinguishable.
Given the focus on McCullough, it is surprising that the parties did not heed its
explanation that there are three different statutes addressing the reimbursement
of booking/classification fees, and “[w]hich section applies to a given defendant depends
on which governmental entity has arrested [the] defendant before [the] transport[] . . . to a
county jail.” (McCullough, supra, 56 Cal.4th at p. 592.) Thus, even if defendants did not
forfeit their claim—a dubious proposition in light of the focus in McCullough on a
defendant’s burden to put purported sentencing errors at issue in the trial court (id. at
3 Subdivision (a) of Government Code section 29550.2 states that it applies to “Any
person booked into a county jail pursuant to any arrest by any governmental entity not
specified in Section 29550 [(which applies to counties)] or 29550.1 [(cities and other
specified local agencies)],” e.g., the California Highway Patrol (emphasis added); the
statute thereafter authorizes a county to impose an administration fee not to exceed the
county’s actual administrative costs of receiving an arrestee into one of its detention
facilities, and requires a trial court to order defendants to pay the fee as a condition of
probation (or as part of the judgment of conviction if there is an ability to pay).
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p. 598), and its rejection of efforts to transform forfeited factual claims into claims of the
trial court’s lack of legal authority to act (id. at p. 597)—it ultimately is inapposite
because the statute that does apply to the payment order in this case does not contain any
qualification that the fee must reflect actual administrative costs.4 We thus reject
defendants’ argument, and direct the trial court in issuing the amended probation orders
to specify the correct statutory basis for payment of the booking/classification fees (i.e.,
Gov. Code, § 29550.1).
VI. There Is Insufficient Evidence of Possession of Drug Paraphernalia
As with the analogous offense of possession of controlled substances, the People
must demonstrate that defendant Tikhomirov had at least joint dominion and control over
the drug paraphernalia with knowledge of its presence; the “opportunity of access . . .
without more” is insufficient. (People v. Redrick (1961) 55 Cal.2d 282, 285.)
The van belonged to defendant Tcacsin, who was driving. The drug paraphernalia
was in a pocket of the van’s driver-side door. Although defendant Tikhomirov had an
opportunity of access that might be sufficient to establish constructive possession, there is
neither any direct evidence of his knowledge of its presence nor any circumstantial
evidence of this knowledge (such as evidence of any controlled substances in or around
his person or his use of controlled substances). The People thus properly concede that the
evidence is insufficient to support the conviction, and we must reverse it with directions
to enter a judgment of acquittal on this count. (People v. Hatch (2000) 22 Cal.4th 260,
272 [appellate ruling of insufficient evidence is functional equivalent of acquittal].)
4 The absence is logical, given that the factual basis of an administrative fee is not of any
moment to the city or local agency that has already had to pay it to a county, whereas the
county that imposes the fee must demonstrate that it acted within the authority granted to
it in order to recover it from a defendant.
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VII. The Order of Probation Must Conform to the Oral Pronouncement
In defendant Tcacsin’s case, the trial court orally awarded both custody and
conduct credit for presentence custody, and did not order him to pay interest on victim
restitution. Yet his order of probation omits the conduct credit and directs payment of
interest. The People correctly concede that the order of probation must be modified to
reflect the oral pronouncement. (Cf. People v. Mitchell (2001) 26 Cal.4th 181, 185;
People v. Zachary (2007) 147 Cal.App.4th 380, 387-388 [minute order and abstract of
judgment must be corrected to conform to court’s oral pronouncement of judgment].)
DISPOSITION
Defendants’ convictions for grand theft are modified to attempted petty theft;
defendant Tikhomirov’s conviction for possession of drug paraphernalia is reversed with
directions to enter a judgment of acquittal on that count. The trial court is directed to
issue amended probation orders, which reflect these modifications to the convictions, as
well as the modification to the probation condition regarding possession of metals (set
out in pt. IV. of the Discussion, ante, at pp. 10-11), the proper statutory basis for ordered
reimbursement of administrative fees (Gov. Code, § 29550.1), and (in defendant
Tcacsin’s case) the award of 70 days of conduct credit and the absence of any obligation
to pay interest on the order for victim restitution. As modified, defendants’ orders of
probation are affirmed.
BUTZ , J.
We concur:
RAYE , P. J.
DUARTE , J.
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