Opinion
B230343
09-20-2011
THE PEOPLE, Plaintiff and Respondent, v. DELFINO DELGADO, Defendant and Appellant.
Mona D. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA066032)
APPEAL from a judgment of the Superior Court of Los Angeles County, Susan M. Speer, Judge. Affirmed.
Mona D. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Delfino Delgado appeals from the judgment entered after his jury conviction of second-degree commercial burglary and theft. Delgado's appointed counsel filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) On June 9, 2011, we directed appointed counsel to send the record on this appeal and a copy of her brief to Delgado, and we notified Delgado that within 30 days of the date of the notice he may submit by brief or letter any grounds of appeal, contentions or argument he wished us to consider. We received no response from Delgado.
We briefly describe the facts and procedural history of the case, the crimes of which Delgado was convicted, and the punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 110.)
On October 12, 2010, Delgado was charged with second-degree commercial burglary (Pen. Code, § 459 ) and petty theft with three priors (§ 666). A prior prison term also was alleged (§ 667.5, subd. (b).)
All subsequent references are to the Penal Code unless otherwise specified.
A closed Marsden hearing was held on November 10, 2010. After considering Delgado's complaints about his appointed trial counsel and counsel's response, the trial court denied Delgado's request to replace his counsel.
People v. Marsden (1970) 2 Cal.3d 118.
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The jury trial began on December 9, 2010. A surveillance video was admitted, showing that, on September 12, 2010, Delgado entered a Home Depot store in Van Nuys through the returns area. He was accompanied by a woman and was pushing an empty shopping cart. An asset protection investigator testified that he saw them enter the paint department. The woman left Delgado's side, and in her absence, Delgado placed two five-gallon buckets of paint into the empty cart.
The surveillance video captured the woman going back to the returns area. The security guard in that area testified that he would give out stickers to customers who brought items into the store. The stickers he gave out that day were green, and he drew smiley faces on them. He gave the woman one such sticker, and she placed it on a small flashlight. The woman returned to the paint department, and she and Delgado left the store through the garden department without stopping at the cashier to pay for the paint.
The asset protection investigator detained them after they exited and recovered the two buckets of paint from the cart. One half of a green sticker with a portion of a smiley face on it was affixed to each bucket. There was no sticker on the small flashlight the woman carried. Delgado produced receipts, including a receipt for two buckets of paint, dated February 17, 2010, and totaling $210. The price of the paint in this case was $256. A police detective, specializing in burglary and theft investigations, testified (over defense counsel's objection that he was not an expert) that a universal product code (UPC) is assigned to every product by its manufacturer. The UPC on the receipt Delgado produced did not match that on the buckets recovered from the cart.
In the middle of trial Delgado waived his right to have the jury try the prior convictions alleged against him. He admitted all prior allegations. The defense did not put on any evidence. The parties stipulated that, at the time of the arrest, Delgado had no means of payment, and the woman carried $75.52. In closing, the prosecution argued that Delgado entered the store intending to steal the paint by disguising it as an item he had brought in from outside. In turn, defense counsel argued that, although the investigator did not lose sight of the buckets of paint, he did not see anyone place stickers on them. He stressed that no one had reviewed the portion of the surveillance video preceding the incident or checked whether the recovered buckets of paint already had been purchased. Based on that, he speculated that Delgado could have gone into the store with paint he bought before and could have mistakenly brought along the wrong receipt.
The jury convicted Delgado as charged.
On January 13, 2011, the court sentenced Delgado to a total of three years in prison, comprised of the midterm, 2 years, on the burglary count (§§ 459-461, 18) with an additional year for the prison sentence prior (§ 667.5, subd. (b)). The court stayed the midterm sentence for petty theft with priors (§ 654). Delgado received 124 days of actual credit and an equal number of local conduct credits for a total credit of 248 days. (See former § 4019, subds. (b), (c) & (f), as amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28 (Senate Bill. No. 18), § 50, eff. Jan. 25, 2010; § 4019, subd. (g).) The court imposed a restitution fine of $600 to be paid from Delgado's prison wages and an additional $600 parole revocation restitution fine, suspended unless parole is revoked (§§ 1202.4, subd. (b), 1202.45). Additionally, the court assessed a $40 court security fee and a $30 criminal fine assessment for each count (§§ 1465.8, subd. (a)(1), Gov. Code, § 70373). The $10 theft fine was suspended for inability to pay (§ 1202.5) and is not included in the abstract of judgment.
Delgado filed a notice of appeal on the day of sentencing.
We have examined the record and are satisfied that Delgado's appointed counsel has complied with her responsibilities and that no arguable issue exists. (People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.