In re Brian P. CA2/1

Filed 5/28/15 In re Brian P. CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

In re BRIAN P., a Person Coming Under B255259 the Juvenile Court Law. (Los Angeles County Super. Ct. No. KJ38005)

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN P.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Geanene Yriarte, Judge. Affirmed. Gerald Peters, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent. ___________________________________

When confronted by store loss prevention personnel after having stolen store merchandise, defendant Brian P. brandished but did not discharge a canister labeled “pepper spray.” The trial court sustained allegations that defendant committed robbery and burglary, used tear gas in commission of the offenses, and personally used a dangerous weapon, namely tear gas. On appeal, defendant contends that brandishing a tear gas canister does not without more constitute “use” of tear gas, and no evidence supported the finding that defendant used a dangerous weapon. We disagree with both contentions. Brandishing a weapon constitutes “use” whether or not the weapon is discharged. And whether the pepper spray in defendant’s canister, if any, was actually dangerous is irrelevant for purposes of the enhancement statute, as the weapon was designed to be dangerous and appeared to be capable of carrying out its design, which suffices. Accordingly, we affirm the judgment. BACKGROUND On February 20, 2013, defendant and a companion took seven portable Bluetooth speakers from a Wal-Mart without paying for them. When they were confronted in the parking lot by Kyle McDaniel, a loss prevention officer employed by the store, defendant produced a canister labeled “pepper spray” and said he would spray McDaniel if he did not get back. After defendant was subdued, he admitted he threatened McDaniel with the pepper spray to prevent him from finding the speakers and said he carried the spray for protection. At trial, the only evidence concerning the contents of the pepper spray canister was a photograph of the canister bearing a label that said, “18% Pepper Spray” and “Warning: Strong Irritant.” After a contested hearing, the trial court found defendant violated Penal Code sections 211 (robbery), 459 (burglary), and 22810, subdivision (g)(1) (use of tear gas), and found true the allegation that defendant personally used a dangerous weapon within the meaning of Penal Code section 12022, subdivision (b)(1). The trial court declared