People v. Cazares CA5

Filed 7/25/14 P. v. Cazares 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F066226 Plaintiff and Respondent, (Super. Ct. No. F12902018) v.

APOLINAR CAZARES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge. Jake Stebner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Kane, J. and Franson, J.

INTRODUCTION Appellant Apolinar Cazares was convicted of two counts of robbery arising from his theft of a bag of frozen shrimp from a Fresh & Easy grocery store. He appeals his robbery convictions on the grounds the evidence was insufficient to support the convictions; specifically, that the two store employee victims were not in constructive possession of the item stolen. We disagree and will affirm the judgment. FACTUAL AND PROCEDURAL SUMMARY On March 20, 2012, David Conley and Patrick King, Jr., were employed as team leaders at the Fresh & Easy grocery store located on Tulare and R Streets in Fresno. As team leaders, Conley and King were responsible for shift supervision, receiving inventory, and handling cash. The store did not have loss prevention officers on site; all employees were expected to watch for shoplifting. The morning of March 20, 2012, a man came into the store with a backpack in his shopping cart. The man, later identified as Cazares, put a bag of frozen shrimp into his backpack and then left the store without paying for the item. After being alerted of the theft by the front counter customer assistant, Conley and King went outside the store to see if they could locate the shoplifter. Conley and King saw a man on the other side of the street that fit the description of the shoplifter given by the customer assistant. Both Conley and King yelled at the man to stop; instead, he took off running. Without stopping to think, Conley ran after the man; King followed. Conley and King chased Cazares for a few blocks until he stopped and then turned into an alley. A meat cleaver fell out of Cazares’s pocket; he picked up the meat cleaver and brandished it. While Conley and King were standing about 10 feet from him, Cazares held the meat cleaver in a threatening manner and said something like, “Come any closer, and I will cut you.” Following the confrontation with the cleaver, Cazares again took off running. Conley and King continued to follow him, but from a much farther distance. As they