People v. Velazquez CA2/8

Filed 3/26/14 P. v. Velazquez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B247404

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA099119) v.

FRANCISCO LOPEZ VELAZQUEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Mars, Judge. Affirmed.

Emily Lowther, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, and Shawn McGahey Webb, Deputy Attorney General, for Plaintiff and Respondent.

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Using a pellet gun that resembled a pistol, defendant Francisco Lopez Velazquez took a bottle of brandy from a Food 4 Less store and was convicted of two counts of second degree robbery. In this appeal, he argues his conviction must be reversed because the trial court refused to give an instruction on the “claim of right” defense. We find no error and affirm. FACTS AND PROCEDURE On August 21, 2012, Food 4 Less manager Ignacio Lomeli noticed defendant in the liquor department of the Food 4 Less store with a gun. Defendant moved the gun from his front waist to his back waist. Defendant selected a liquor bottle from the shelf and then put that bottle back and took another. Defendant concealed the second bottle in his waist. Defendant’s shirt covered his waist. After observing this series of events, Lomeli asked Rafael Castellon, a customer service manager, for assistance with defendant. Defendant walked past the cash registers and did not pay for the bottle hidden in his waistband. Lomeli and Castellon then confronted him. Lomeli told defendant to return the bottle, and defendant denied having the bottle and pretended to be confused by the question. Lomeli asked again, and defendant said “that’s my bottle.” After being asked several times, defendant gave Castellon the bottle, which he removed from his waist. Lomeli asked defendant what was in the back of his pants and defendant pulled out a gun, which Lomeli thought was a pistol but was really a pellet gun. Defendant repeated three to five times “I’ll fucking kill you. It’s my fucking bottle.” Castellon believed the gun was real and relinquished the bottle to defendant because defendant pointed the gun at him. Lomeli and Castellon were able to record defendant’s license plate number, and defendant was apprehended shortly after leaving the Food 4 Less. A bottle of brandy and a pellet gun were found in defendant’s car. Neither Lomeli nor Castellon observed defendant enter the store. Defendant was charged with and convicted of two counts of second degree robbery. Defendant was sentenced to concurrent three-year prison terms.