Filed 10/23/00; part. pub. & mod. order 11/22/00 (see end of opn.

)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
MARVIN DEAN STROHMAN,
Defendant and Appellant.
2d Crim. No. B134371
(Super. Ct. No. SM106723)
(Santa Barbara County)
Marvin Dean Strohman appeals from a judgment after conviction of
receiving stolen property (Pen. Code, 496, subd. (a)) and of operating a "chop
shop." (Veh. Code, 250,
1
10801.) The court denied his application for probation
and sentenced him to three years imprisonment for operating the chop shop and a
two-year concurrent sentence for receiving stolen property. We conclude that
receiving stolen property is not a necessarily included offense of operating a chop
shop, and the trial court did not abuse its discretion by denying probation. We
affirm.

1
Vehicle Code section 250 states in part: "A 'chop shop' is any building,
lot, or other premises where any person has been engaged in altering, destroying,
disassembling, dismantling, reassembling, or storing any motor vehicle or motor
vehicle part known to be illegally obtained by theft, fraud, or conspiracy to
defraud . . . ."
2
Facts
Todd Crouch owned a distinctive turquoise-and bone-colored Harley
Davidson motorcycle. Less than two months after he bought it, it was stolen from a
hotel parking lot in San Luis Obispo.
A week later, Santa Barbara County Sheriff Sergeant Kenneth
Reinstadler saw the bike parked outside a bar in Orcutt. He spoke with Strohman
who told him he "deals in bikes" and purchased this bike at a discount.
Nine days later, officers served a search warrant on Strohman's Orcutt
home. Deputies found hundreds of thousands of motorcycle parts throughout the
residence. Some of the parts were from stolen bikes, and others had altered vehicle
identification numbers (VINS). Parts from Couch's motorcycle were found in the
living room. Strohman admitted violating vehicle registration statutes because he
bought and sold so many bikes. He did not have receipts showing lawful purchases
of the bikes.
Strohman testified that he purchased the bikes and parts lawfully and
did not know they were stolen or had altered VINS. He also denied making false or
inconsistent statements to the officers who conducted the investigation.
In addition to the evidence at trial, the court had information regarding
Strohman's criminal activities. Before serving the search warrant on his residence,
officers had seen other stolen motorcycles there. A license plate from one stolen
motorcycle was recovered at his home. Police informants had purchased
methamphetamine from Strohman. The search of his home uncovered drugs and
drug paraphernalia. Officers also recovered stolen household appliances and fixtures
stolen from Strohman's former landlord.
Strohman requested preparation of a pre-plea probation report in this
case and one in another criminal case. The court ordered him to appear for a
probation interview the following day. He did not appear or respond to telephone
calls and letters directing him to appear for an interview. The probation report
therefore contained no social history. The report stated, "Since an interview was not
3
conducted with the defendant, it can only be assumed that he has the willingness and
ability to abide by the terms of probation." It rated him a "marginal" candidate and
noted that he continued to commit crimes after service of the search warrant.
Strohman did not appear for court hearings and was arrested twice on resulting bench
warrants. He had even challenged Sergeant Reinstadler to fight. While the
prosecution was pending, officers seized a loaded shotgun from his vehicle. He
repeatedly violated vehicle registration laws and failed to keep his son from being
truant.
A supplemental report prepared after trial noted that a "compelling
argument for not granting probation is the defendant's sanctimonious attitude of
persecution." It also noted that Strohman displayed "absolutely no remorse" and
refused to accept responsibility for his behavior. The supplemental report stated that
the probation department had a "much lower level of confidence" that probation was
appropriate than expressed in the first report.
Discussion
I
Strohman argues his conviction for receiving stolen property must be
reversed. He relies on the recent case of People v. King (2000) 81 Cal.App.4th 472,
which holds that the offense of receiving stolen property is necessarily included
within the offense of owning and operating a chop shop. (See People v. Ortega
(1998) 19 Cal.4th 686, 692 [the test of a necessary included offense is whether an
offense cannot be committed without necessarily committing another offense].) We,
however, are not persuaded by King.
Vehicle Code section 250 states that for property to fall within the
definition of operating a chop shop, it must be "illegally obtained by theft, fraud, or
conspiracy to defraud."
The People point out that property acquired through fraud, for example,
would not fall under the definition of receiving stolen property. Penal Code section
496 applies only to property stolen or obtained by theft or extortion.
4
Here the information did not specify that the chop shop offense was
based upon stolen property and referred only to the general language of the statute.
The determination of whether an offense is a necessarily included offense must be
based solely upon the statutory definitions of the offenses and the language of the
accusatory pleading. The court may not examine the evidence offered in support of
the conviction. (People v. Ortega, supra, 19 Cal.4th at p. 698.) Because a person
may be guilty of operating a chop shop without committing the offense of receiving
stolen property, neither the statutory definitions nor the accusatory pleading bars
Strohman's convictions.
II
Strohman contends the court abused its discretion in denying probation
because of its "unsupported conclusion" that Strohman was involved in the day-to-
day business of stealing. He contends that there is not a "shred of evidence" to
support that inference and that he is an "ideal candidate for probation." At
sentencing, Strohman took the position that he did nothing wrong.
"A trial court has broad discretion in determining whether or not to
grant probation. In reviewing that determination it is not our function to substitute
our judgment for that of the trial court. Our function is to determine whether the trial
court's order granting probation is arbitrary or capricious or exceeds the bounds of
reason considering all the facts and circumstances." (People v. Superior Court (Du)
(1992) 5 Cal.App.4th 822, 825.) The burden is on Strohman to show that the denial
of probation is clearly irrational or arbitrary. (People v. Cazares (1987) 190
Cal.App.3d 833, 837.)
The court's finding that Strohman had engaged in daily "moral
turpitude" while running the chop shop was a reasonable inference from the
information available at sentencing. The court found that Strohman met all the
criteria for a denial of probation and it knew he had six criminal cases pending. The
court dismissed the other five cases at the time of sentencing. California Rules of
Court, rule 414 specifically requires the court to assess the defendant's remorse and
5
willingness to comply with the terms of probation. Strohman's lack of diligence in
attending court appearances and probation appointments tend to prove an
unwillingness or inability to comply with probation directives. The court did not
abuse its discretion in denying probation. (People v. Bowen (1992) 11 Cal.App.4th
102, 107.)
The judgment is affirmed.
GILBERT, P.J.
We concur:
YEGAN, J.
COFFEE, J.
Filed 11/22/00
CERTIFIED FOR PARTIAL PUBLICATION.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
MARVIN DEAN STROHMAN,
Defendant and Appellant.
2d Crim. No. B134371
(Super. Ct. No. SM106723)
(Santa Barbara County)
ORDER MODIFYING OPINION
AND CERTIFYING OPINION FOR
PARTIAL PUBLICATION
[NO CHANGE IN JUDGMENT]
THE COURT:
MODIFICATION
It is ordered that the opinion filed herein on October 23, 2000, be
modified in the following particulars:
1. On page 1, the first full paragraph beginning "Marvin Dean
Strohman appeals from a judgment" and ending with "We affirm," is deleted in its
entirety and the following paragraphs are inserted in its place:
Vehicle Code section 250 states in part: "A 'chop shop' is any building,
lot, or other premises where any person has been engaged in altering, destroying,
disassembling, dismantling, reassembling, or storing any motor vehicle or motor
2
vehicle part known to be illegally obtained by theft, fraud, or conspiracy to
defraud . . . ."
2.
Here we hold that receiving stolen property is not a necessarily
included offense of operating a chop shop. We also conclude the trial court did not
abuse its discretion by denying probation.
Marvin Dean Strohman appeals from a judgment after conviction of
receiving stolen property (Pen. Code, 496, subd. (a)) and of operating a chop shop.
(Veh. Code, 250, 10801.) The court denied his application for probation and
sentenced him to three years imprisonment for operating the chop shop and a two-
year concurrent sentence for receiving stolen property. We affirm.
PARTIAL PUBLICATION
The opinion as modified in the above entitled matter and originally
filed on October 23, 2000, was not certified for publication in the Official Reports.
For good cause it now appears that certain portions of the opinion should be
published in the Official Reports and it is so ordered as follows:
1. On page 1 the following paragraph:
Vehicle Code section 250 states in part: "A 'chop shop' is any building,
lot, or other premises where any person has been engaged in altering, destroying,
disassembling, dismantling, reassembling, or storing any motor vehicle or motor
vehicle part known to be illegally obtained by theft, fraud, or conspiracy to
defraud . . . ."
2. On page 1, paragraph 2, the following sentence:
Here we hold that receiving stolen property is not a necessarily
included offense of operating a chop shop.
3. On page 1, paragraph 3, the following sentences:
Marvin Dean Strohman appeals from a judgment after conviction of
receiving stolen property (Pen. Code, 496, subd. (a)) and of operating a chop shop.
(Veh. Code, 250, 10801.) We affirm.
3
4. On page 2, the word Facts, and the first five full paragraphs under
Facts.
3.
5. On pages 3 and 4, the word Discussion, and the entire part I under
Discussion.
6. On page 5, the sentence, "The judgment is affirmed."
This order modifying opinion does not change the judgment.
4
James B. Jennings, Judge
Superior Court County of Santa Barbara
______________________________
Mark E. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant
Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Linda
C. Johnson, Supervising Deputy Attorney General, Thien Huong Tran, Deputy
Attorney General, for Plaintiff and Respondent.