People v. Harmon CA2/8

Filed 10/30/13 P. v. Harmon CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B243880

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA 070676) v.

KELLY HARMON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph A. Brandolino, Judge. Affirmed.

Cynthia A. Grimm, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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After hearing evidence that defendant Kelly Harmon entered a Gelson’s Market, placed several items in his pockets, and after watching a video of defendant inside Gelson’s, a jury convicted him of second degree burglary. Jurors acquitted defendant of robbery based on an altercation with a Gelson’s security guard. On appeal, defendant’s counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 stating that no arguable issue exists. We have independently reviewed the record including the denial of discovery following defendant’s Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) We affirm the judgment. FACTS AND PROCEDURE Defendant was charged with second degree commercial burglary (Pen. Code, § 459) and second degree robbery (§ 211). Defendant pled not guilty. Defendant sought discovery pursuant to Pitchess, supra, 11 Cal.3d 531 and the court held an in camera hearing. Following the in camera hearing, the court concluded there was no discoverable evidence. Evidence at trial showed that on April 11, 2012, about 3:00 p.m., defendant entered a Gelson’s grocery store and walked to the beverage aisle and then the liquor aisle. Defendant’s actions were videotaped. Defendant picked up an energy drink. Defendant also picked up a bottle of vodka and a bottle of champagne. Defendant concealed the energy drink in his left jacket pocket, the vodka bottle in his back pocket, and the champagne in his right jacket pocket. Defendant exited the store without paying for the energy drink, vodka, or champagne. Defendant was stopped by a security guard employed by Gelson’s. Defendant struggled with the guard. Two other security guards assisted in apprehending defendant. The security guards handcuffed defendant. About one minute later, police officers arrived. One police officer who responded to the scene recovered various bottles of alcohol stashed in defendant’s jacket and pants.