People v. Herbert CA6

Filed 5/10/16 P. v. Herbert CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042608 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS143026B)

v.

PATRICE LASHUNDA HERBERT,

Defendant and Appellant.

Defendant Patrice Lashunda Herbert pleaded no contest to one count of felony embezzlement. (Pen. Code, § 508.)1 She was sentenced to three years in county jail, with imposition of sentence suspended pending successful completion of three years’ felony probation, one condition of which was serving 240 days in county jail. The trial court awarded four days of credit and imposed certain probation conditions, along with various fines and fees, detailed below. Herbert was further ordered to pay victim restitution in the amount of $15,000 to Target Corporation (Target). We appointed counsel to represent Herbert in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Herbert of her right to submit written argument in her own behalf within 30 days. That period has elapsed, and we have received no written argument from Herbert.

1 Unspecified statutory references are to the Penal Code.

I. FACTUAL AND PROCEDURAL BACKGROUND2 On November 25, 2014, Marina police officers were dispatched to a local Target in response to a report of a possible embezzlement of iPads. In preparation for “Black Friday,” this Target received numerous boxes of iPads, but the inventory on hand was significantly less than what the store’s records showed had been delivered as well as what had been sold. Each iPad was valued at $500. Upon reviewing the video surveillance for the morning of November 13, 2014, Target’s loss prevention officers observed Herbert and Everette Mitchell, both of whom were Target employees, working the receiving line unloading the shipment. The iPads were shipped in boxes with distinctive labels and each box contained five iPads. Both Herbert and Mitchell were seen taking iPad boxes off the conveyor, but instead of following procedure and placing them in a secure storage container, they placed the boxes on a pallet. Mitchell rolled the pallet into the store. Herbert pushed a shopping cart into the furniture aisle, and took an ottoman from a shelf. While Mitchell acted as a lookout, Herbert placed the boxes of iPads inside the ottoman and put the ottoman back on the shelf. Later that same day, an unknown male, known to Mitchell and Herbert as “Black,” entered the store and approached the two employees. Black placed the ottoman in a shopping cart, and Herbert used her store discount card to purchase the ottoman. She walked out of the store with Mitchell and the merchandise, loaded the ottoman into a vehicle and returned to work. Loss prevention officers also reviewed video for two other days when the inventory of iPads did not match delivery invoices. Herbert and Mitchell were working the receiving line along with other employees and were again observed diverting boxes of iPads onto a pallet, which was not normal procedure. These pallets were rolled onto the