P. v. Marquez
Filed 6/18/13 P. v. Marquez CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE MANUEL MARQUEZ,
Defendant and Appellant.
B243457
(Los Angeles
County
Super. Ct.
No. KA095373)
APPEAL from
a judgment of the Superior Court
of
County.
Geanene M. Yriarte, Judge.
Affirmed.
Kimberly
Howland Meyer, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff
and Respondent.
___________________________________
A jury convicted Jose Marquez of felony petty theft with
three prior theft-related convictions, and second
degree commercial burglary. (See
Pen. Code, §§ 666, subd. (a); 459.)
convictions. The trial court struck the
prior convictions in the interest of justice and sentenced Marquez to a term of
16 months in county jail, with credit for 345 including 173 actual days in
custody, and 172 days of conduct credit.
We affirm.
FACTS
The Crimes
Marquez and another man whom Marquez
later named as “Marvin†drove in one vehicle to a Walmart store in the City of Industry. They entered the store. Marquez got a shopping cart as Marvin pulled
a yellow safety vest from under his shirt and put it on. The two men
separated. Joseph Gomez, a loss
prevention officer monitoring the store’s video surveillance cameras, saw
Marvin put on the vest and became suspicious.
Gomez left his office to surveil Marquez, and alerted two other loss
prevention officers to surveil Marvin.
Marquez put shampoo in the cart, then went to the home furnishings
department where he placed a blanket in the cart. Marquez then walked to the electronics
department, where he put a DVD player into the cart. Marquez then milled around the electronics
department for 5-7 minutes until rejoined by Marvin. Marvin, who by this time was no longer
wearing the yellow vest, put various articles of clothing in the cart. Marvin took a stereo system from a floor
display and put it in the cart. Marquez
then stepped away from the cart, and Marvin began to push it through the
store. The men walked around the
perimeter of the store, taking the longest possible route toward the exit. They passed manned cash registers near the
exit. Marquez then left the store first,
followed at some distance by the Marvin, still pushing the cart. They made no attempt to pay for the items in
the cart.
Just outside the store exit, Gomez
and his partners grabbed the cart, and displayed their badges. When Gomez said they wanted to talk with the
men about the unpaid items in the cart, Marvin became belligerent, swore at the
employees, and walked away. No one
attempted to stop him. Marquez cooperated
and agreed to accompany the employees to the store office. Once in the office, Marquez said he hadn’t
taken anything. The items in the
shopping cart were inventoried, and valued at $347.66.
Deputy Sheriff Christopher Gamboa
responded to the scene. Marquez waived
his Miranda
title="">[2]
rights. He initially said that he
had not stolen anything, then said that his friend, “Marvin,†had stolen the
items, then admitted he had stolen the items.
Marquez did not give any more information about Marvin; Marquez said he
did not know Marvin’s last name or where he lived. When Officer Gamboa told Marquez that a
surveillance camera showed him putting items in the cart and walking out of the
store without paying for anything, which constituted stealing, Marquez
responded by saying something to the effect, “If you call that stealing.†Deputy Gamboa arrested Marquez. While transporting Marquez to the station,
Marquez asked if he could call his girlfriend.
Officer Gamboa’s training officer, Deputy Meza, dialed the number on
Marquez’s phone, and put the call on speaker.
During the phone call Officer Gamboa heard Marquez say, “I fucked up and
stole some shit. Please bail me
out.â€
The Criminal
Case
In November 2011, the People filed
an information charging Marquez with one count of felony petty theft
with three prior theft-related convictions, and one count of second degree
commercial burglary. (§ 666, subd.
(a); 459.) The information alleged that
Marquez was ineligible for probation under section 1203, subdivision (e)(4),
based on eight prior felony convictions.
Further, the information alleged that four of the prior convictions
suffered by Marquez included a prison term.
(§ 667.5, subd. (b).)
name="_ftnref3" title="">[3]
The charges
were tried to a jury in February 2012.
Walmart employee Gomez and Deputy Sheriff Gamboa testified for the
prosecution; their testimony established the facts summarized above. Marquez did not present any defense evidence;
his defense counsel argued to the jury that the evidence showed Marquez “didn’t
do anything wrong†in that it showed he “didn’t steal anything.†He argued it was Marvin who pushed the items
out of the store, and the evidence did not show that Marquez aided and abetted
Marvin. The jury convicted Marquez of
the charged offenses.
Marquez
later admitted all eight prior convictions alleged in the information. At sentencing on August 15, 2012, the
trial court struck all four prior convictions with a prison term, and sentenced
Marquez to the low term of 16 months for the felony petty theft, and imposed
and stayed an upper term of three years as to the commercial burglary.
Marquez
filed a timely notice of appeal.
DISCUSSION
We appointed counsel to
represent Marquez on appeal. Appointed
counsel filed a brief pursuant to People
v. Wende (1979) 25 Cal.3d 436, requesting that this court review the record
on appeal for arguable issues. We
thereafter notified Marquez by letter that he could submit any claim, argument
or issues which he wished us to review.
Marquez has not responded to our letter.
We have
independently reviewed the record on appeal, and are satisfied that Marquez’s
appointed counsel fulfilled her duty, and that no
v. Wende, supra, 25 Cal.3d 436, People
v. Kelly (2006) 40 Cal.4th 106.)
DISPOSITION
The
judgment is affirmed.
BIGELOW, P. J.
We concur:
FLIER, J. GRIMES, J.
name="_ftn1" title="">
Penal Code.
name="_ftn2" title="">
Miranda v. Arizona (1966) 384 U.S. 436
