Opinion
A131320
10-21-2011
THE PEOPLE, Plaintiff and Respondent, v. SEAN PALACIO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR280391)
Defendant's counsel filed an opening brief in which she raised no issues and asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was apprised of his right to file a supplemental brief but did not do so.
Defendant was charged by information with possession of a weapon on school grounds (Pen. Code, § 626.10, subd. (a)) and battery on school property (Pen. Code, § 243.2, subd. (a)). A jury trial commenced on January 20, 2011. The evidence presented to the jury showed the following:
On October 28, 2010, at about 1:50 p.m., Daniel Tyler was working as a campus supervisor at Will C. Wood High School. Tyler saw defendant, who was smoking, coming up the driveway to the school. Tyler did not recognize defendant as a student. Tyler walked over to defendant and called out to him. Defendant responded by gesturing to Tyler with his middle finger. Tyler pursued defendant up the stairs to the school and called out to defendant to "come here." Defendant turned and ran toward Tyler, brushing up against him, "nose to nose." Defendant's body made contact with Tyler; he could smell alcohol on defendant's breath. Defendant said, "Fuck you. I'm gonna kick your ass." Tyler told defendant, "You don't want to do that, son. You do not want to throw . . . a punch." Defendant settled down a bit.
Officer Kim Humbert, the campus police officer, saw Tyler's interaction with defendant and responded to the scene. She attempted to disengage them and took hold of defendant's right arm. Defendant immediately jerked his arm away. Humbert then stepped in between defendant and Tyler and got him to back away from Tyler. She could smell alcohol on defendant. Humbert placed defendant in custody and searched him. She found a butterfly knife in the front pocket of his sweatshirt. After waiving his Miranda rights, defendant, who was "alcohol-fueled," gave inconsistent explanations as to why he was on campus, saying both that he was there to walk his son home and that he was there to protect his son from gang harassment. Defendant also said that he was there to see his mother who worked in the library.
Defendant's son attended Country High School.
In defense, defendant's mother testified that she worked at the library at Will C. Wood High School and that defendant visited her at the school about once a month.
Defendant testified that on the afternoon of October 28, 2010, he went to Will C. Wood High School to visit his mother at work. He was trying to get to the library when he got lost on campus. When he was approached by Tyler and asked to leave, he became angry because he felt that he should not be required to leave. He did not threaten anyone or resist Humbert. He did not know that the knife was in the pocket of his sweatshirt. He denied drinking any alcohol on the day of the incident.
The court properly instructed the jury which found defendant guilty of the charged offenses.
On February 17, 2011, the court having read and considered the probation report, suspended imposition of sentence and placed defendant on probation for three years on conditions including that he serve 180 days in the county jail. The court granted defendant custody credits of 169 days. There was no error in the sentencing.
Defendant was represented by counsel throughout these proceedings. We have reviewed the entire record and there are no meritorious issues to be argued.
DISPOSITION
The judgment is affirmed.
RIVERA, J.
We concur:
RUVOLO, P.J.
REARDON, J.