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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.




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