California Court of Appeal Apr 30, 2014 No. E058783Unpublished
Filed 4/30/14 P. v. Reed CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058783
v. (Super.Ct.No. BAF1200704)
WESLEY GARRETTE REED, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Irma Poole Asberry,
Judge. Affirmed.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
In this appeal, brought pursuant to the procedures established in People v. Wende
(1979) 25 Cal.3d 436, defendant and appellant Wesley Garrette Reed appeals from his
conviction on four counts of commercial burglary. Finding no error, we will affirm the
judgment.
PROCEDURAL HISTORY
In an information filed December 19, 2012, the prosecution charged defendant
with four counts of commercial burglary (Pen. Code,1 § 459), and alleged a prior strike
offense (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) based on a 2003 conviction for
assault with a deadly weapon (§ 245, subd. (a)(1)).
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
On February 21, 2013, a jury convicted defendant on all counts. In a bifurcated
court trial, defendant admitted that he committed the prior offense, but contended that it
did not qualify as a prior serious felony. The court found that the prior conviction
qualified as a prior strike offense.2
Following the denial of defendant’s motion to dismiss the prior strike in the
interest of justice, the court sentenced defendant to eight years in state prison. The court
imposed the middle term in count 1 and imposed consecutive terms on counts 2
through 4, all doubled.
Defendant filed a timely notice of appeal.
2 Defendant argued that the record was insufficient to establish that the prior conviction, for violation of section 245, subdivision (a)(1), was a serious or violent felony conviction. The information in the prior case alleged that defendant committed assault “with a deadly weapon other than a firearm, to wit: a KNIFE, and by means of force likely to produce great bodily injury.” Assault with personal use of a deadly weapon is a serious felony; assault by means of force likely to cause great bodily injury is not. (People v. Delgado (2008) 43 Cal.4th 1059, 1063, 1065.) Consequently, a record which merely shows that the defendant was convicted of violating section 245, subdivision (a), is insufficient to prove a prior serious felony allegation. (Delgado, at p. 1066.) In defendant’s prior case, he entered a guilty plea and admitted that he “did willfully and unlawfully commit an assault . . . with a deadly weapon other than a firearm, to wit, a knife, by means of force likely to create great bodily injury.” This admission is sufficient to establish that the assault was committed with the use of a knife and is therefore substantial evidence sufficient to support the true finding on the prior serious felony allegation.
3
FACTS
Defendant was charged with commercial burglaries committed in July, August and
October 2012, at Walmart stores in Beaumont, La Quinta and Moreno Valley. The
surveillance videos from each store showed a Caucasian man, later identified as
defendant, acting in concert with one or more other men to steal electronic items,
including iPads, iPods, tablets, and laptops.
Officer Lunt of the Beaumont Police Department, who investigated the burglaries,
was able to identify defendant as a suspect. During a search of defendant’s home, which
he shared with several other people, officers found four barrel keys and a universal barrel
key. The universal barrel key could open locks such as those used to lock the glass
cabinets at the Walmart stores, from which the electronics were stolen. In three of the
four charged incidents, the cabinet locks had been forced. However, in the La Quinta
incident and in an uncharged incident at the Redlands Walmart, the cabinet lock had been
opened using a key. Defendant was also identified as one of the perpetrators in the
Redlands incident.
When police obtained a search warrant and searched defendant’s house, they
found a number of electronic items. None of them matched any of the stolen items. Lunt
opined that the items in the residence were stolen, based on the quantities and the fact
that several items were new and still in their boxes, but defendant did not have receipts
for them.
4
After his arrest, defendant was shown a picture of a Hispanic man who appeared
on the store surveillance tapes opening the locked cabinets. Defendant said the man
looked like “Joel.” He said that he and Joel were “road dogs,” meaning that they went
everywhere together.3 Defendant also admitted that he had been caught stealing batteries
at a Walmart in Hemet, although he did not say when that occurred
DISCUSSION
We appointed counsel to represent defendant on appeal. After examination of the
record, counsel filed an opening brief raising no issues and asking this court to
independently review the record. We offered defendant the opportunity to file any
supplemental brief he deemed necessary, but he has not done so.
We have examined the entire record and have found no error. We are satisfied
that defendant’s attorney has fully complied with her responsibilities and that no arguable
issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra,
25 Cal.3d at p. 441.)
3Joel Padilla was also charged with three of the burglaries. He was not tried with defendant. He pleaded guilty to three counts of commercial burglary after defendant’s trial.
5
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
We concur:
HOLLENHORST Acting P. J.
KING J.
6
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction for four counts of commercial burglary and the finding that a prior conviction constituted a strike offense, finding no arguable issues after an independent review of the record.
Issues
Whether the trial court erred in finding the defendant's prior conviction for assault with a deadly weapon qualified as a strike offense.
Whether there are any arguable issues on appeal following the defendant's conviction for four counts of commercial burglary.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Finding no error, we will affirm the judgment.”
“We have examined the entire record and have found no error. We are satisfied that defendant’s attorney has fully complied with her responsibilities and that no arguable issues exist.”