Filed 2/26/18 P. v. Vasquez CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DIEGO VASQUEZ,

Defendant and Appellant.

F074302

(Super. Ct. No. BF163514A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge.
Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant Diego Vasquez was found guilty of multiple offenses after a jury trial. Vasquez appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Vasquez was convicted by a jury of two counts of carrying a concealed weapon having previously been convicted of a crime, in violation of Penal Code section 25400, subdivision (c) (counts 3 and 4); two counts of possessing methamphetamine while armed with a firearm, in violation of Health and Safety Code section 11370.1, subdivision (a) (counts 1 and 2); one count of petty theft in violation of section 488 (count 7); one count of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) (count 8); and one count of possession of more than 28.5 grams of marijuana in violation of Health and Safety Code section 11357, subdivision (c) (count 9). As to one count, count 10, the jury was unable to reach a verdict and the People dismissed that count. Counts 5 and 6 were lesser included offenses of counts 3 and 4; the jury was instructed not to return verdicts on counts 5 and 6 if it found Vasquez guilty on counts 3 and 4.
At trial, Ryan Willis testified he worked at Walmart in “asset protection.” His “main duty” in asset protection was to “catch people stealing.” On March 14, 2016, another employee informed Willis that Vasquez was “returning a lot of merchandise with a lot of receipts from different days and times.” This type of activity was “one of the things” he looked for because “normally it’s stolen merchandise.” Because of the suspicious activity, Willis decided to “monitor him on the cameras.”
Willis saw Vasquez and a female companion go to the sales floor; the woman was on foot and Vasquez was in an electric cart. Willis saw them looking at the UPC numbers on the receipts and “then checking on the shelf to see if it matched the UPC, and then selecting the item.” Items were placed into the cart, but also into the woman’s pockets and purse. The woman was about three feet directly in front of Vasquez while she placed items into her pockets and purse.
After this, Vasquez and his companion did not exit the store immediately; instead, they went to the McDonald’s food location and sat down at a table. Willis went and stood by the self-checkout lane, which is directly in front of the McDonald’s. He watched as they moved items from the cart into a purse or satchel the woman was carrying.
Willis went into the vestibule of the store and watched as Vasquez and the woman exited Walmart without paying for the items; Willis stopped them as they exited. When stopping the couple, Willis indicated he would have said something to the effect of, “Asset protection, I work for Walmart. You have some things in your cart that you didn’t pay for.” Vasquez and the woman “weren’t very cooperative,” so Willis called the Bakersfield Police Department for assistance.
Bakersfield Police Officer Christopher Mesa was dispatched to the Walmart store. When he arrived, he saw Vasquez sitting in a motorized cart, a woman who appeared to be Vasquez’s companion, and loss prevention personnel from Walmart in the area between the two sets of exit doors. There also was a shopping cart next to Vasquez and the woman.
Mesa asked Vasquez to stand and then searched him for weapons. Mesa found two firearms: a nine-millimeter Luger in Vasquez’s front waistband and another firearm in a holster under his left arm. Both firearms were loaded, functional, and concealed. Mesa also found car keys on Vasquez and used the keys to locate Vasquez’s car in the parking lot and search it; Officer Amy Davis accompanied him.
A search of Vasquez’s car disclosed a container inside the car that had marijuana cigarettes in it; several other containers of marijuana were in the trunk of the car. Mesa emptied the marijuana from all of the containers into a bag; the total weight, including the bag, was 145 grams.
Before transporting Vasquez, Mesa searched him again and found a baggie containing methamphetamine in a cargo pocket of Vasquez’s pants. The amount was a usable quantity. Also in Vasquez’s pockets were “a whole bunch of receipts from Walmart.”
Mesa personally reviewed the surveillance video and saw Vasquez and the woman select items from Walmart, go to the McDonald’s, and then exit the store. The video Mesa reviewed did not show Vasquez paying for any items.
The People introduced into evidence certified copies of the records establishing that Vasquez previously was convicted of a violation of section 148, subdivision (a)(1) in Monterey County.
Vasquez testified in his own behalf. He stated he and his friend went to Walmart to return some items. They were unable to return some items and placed those items into the motorized cart. Vasquez also testified they went shopping while in Walmart and paid for items at various locations in the store. He never concealed any items on his person and did not see his companion conceal any items.
Vasquez admitted having two firearms on his person and marijuana in his car. He also acknowledged the firearms were loaded and fully functional. Vasquez admitted he had a prior conviction for theft.
Vasquez claimed he did not know there was methamphetamine in his pocket. He had allowed other people to wear and use the pants.
On June 24, 2016, Vasquez asked the trial court to appoint new counsel. The trial court denied Vasquez’s motion pursuant to People v. Marsden (1970) 2 Cal.3d 118.
The jury returned its verdicts on June 27, 2016. The probation report recommended imposition of the midterm of three years for counts 1 and 2, with the count 2 term to be served concurrently. The recommendation for counts 3 and 4 was that the terms imposed should be stayed pursuant to section 654.
The trial court imposed sentence on August 17, 2016. The trial court stated it had reviewed and considered the probation report. On count 1, a term of two years was imposed; a concurrent term of two years was imposed for the count 2 conviction. On counts 3 and 4, the trial court imposed a term of 16 months each, stayed pursuant to section 654. Counts 7, 8, and 9 are misdemeanors and local custody was imposed. Various fines and fees were imposed as to all counts.
The abstract of judgment was filed August 29, 2016. Vasquez filed a notice of appeal. An amended abstract of judgment was filed September 20, 2016. The amended abstract erroneously reflects that the count 3 term is to be served concurrently with the term for count 1; it does not reflect the trial court’s oral pronouncement that the count 3 term is stayed pursuant to section 654.
DISCUSSION
Appellate counsel was appointed on December 28, 2016. On May 23, 2017, appellate counsel sent a letter to the superior court, pursuant to People v. Clavel (2002) 103 Cal.App.4th 516 and People v. Fares (1993) 16 Cal.App.4th 954 asking that the assessments set forth in the amended abstract of judgment be corrected.
On July 12, 2017, the trial court filed a corrected, amended abstract of judgment that accurately sets forth on page 2 the correct amount of assessments. Additionally, page 1 of the corrected, amended abstract accurately reflects the trial court’s oral pronouncement that the term imposed for the count 3 offense was stayed pursuant to section 654.
On August 4, 2017, appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436. Attached to the brief was appellate counsel’s declaration that she had advised her client she was filing a Wende brief on his behalf and of his right to submit a supplemental brief. That same day, this court issued its letter to Vasquez inviting him to file a supplemental brief. No supplemental brief was filed; however, this court’s letter was returned as undeliverable because Vasquez had been discharged from custody. Appellate counsel had no current address for Vasquez.
After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.