Filed 1/9/15 P. v. Celestine 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F067299
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F12908251)
                   v.

LAWRENCE JAY CELESTINE,                                                                  OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Hilary A.
Chittick, Judge.
         Suzanne M. Morris, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-



         *   Before Poochigian, Acting P.J., Detjen, J. and Peña, J.
                                      INTRODUCTION
       After a jury trial, appellant/defendant Lawrence Jay Celestine was convicted as
charged of second degree robbery (Pen. Code, §211),1 and he admitted two prior prison
term enhancements (§ 667.5, subd. (b)). He was sentenced to the lower term of two
years, plus two years for the enhancements, for an aggregate term of four years.
       On appeal, his appellate counsel has filed a brief that summarizes the facts with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm.
                                            FACTS
       On October 11, 2013, Lydia Joachin was working as a clerk at a 7-11 convenience
store in Fresno. Defendant entered the store when it was busy with customers. Joachin
testified defendant walked down the middle aisle and grabbed a box of candy bars.
Defendant put the box under his coat and headed to the door.
       Joachin left the counter and stood in front of the store’s double doors to prevent
defendant from leaving. Defendant stopped in front of her. Joachin told defendant she
saw him take the box of candy and asked him to return it. Defendant said he did not take
anything. Joachin again said she saw him do it, and defendant denied it.
       Joachin testified defendant held the box of candy in his hands, clenched against his
body. He shoved his body weight against her stomach to get through the doors. Joachin
fell backwards about one and one-half steps and landed against one of the outward
opening doors. She did not fall to the ground. Defendant left through the adjoining door.
       At trial, the prosecution introduced the store’s video surveillance tape. Joachin
conceded the videotape did not show that defendant pushed her, or that she fell
backwards. However, Joachin insisted it happened and testified the videotape images
were not clear and did not show everything.

       1   All further statutory citations are to the Penal Code unless otherwise indicated.



                                               2.
         Upender Goel, Joachin’s employer, was also in the store that day. Goel did not
see defendant take anything but testified Joachin said defendant was trying to steal candy.
Goel testified defendant tried to leave the store, and Joachin told defendant to return the
candy. Goel testified defendant was holding the candy box. He pushed Joachin in her
chest or stomach. Defendant used his hand and did not completely extend his arm when
he pushed Joachin. Joachin stepped backwards against the door, and defendant left the
store.
         Goel chased defendant as he ran from the store. Goel saw a police car and alerted
the officer about the incident. The officer detained defendant about two to three blocks
away from the store. He did not have the candy or any stolen goods. However, some of
the candy was found in the store’s parking lot. About 30 minutes after the incident,
Joachin identified defendant during an infield showup.
         Defendant was arrested and asked the officer what was going on. The officer
replied he was being arrested for stealing a box of candy from the 7-11 store. Defendant
said he didn’t know anything about that. Defendant said he was at the store, and the male
employee was angry at something and chased him down the street.
         The arresting officer asked Goel about the value of the box of candy. Goel
guessed how many candy bars were still in the box and said it was worth $28.00. At trial,
Goel testified it was a new box and the contents were worth $47; Joachin testified it was
worth $45.2

         2
         At the preliminary hearing, the prosecutor stated defendant had rejected an offer
to plead guilty to second degree robbery for a stipulated term of three years and dismissal
of the prior prison term enhancements. At trial, the court denied defendant’s motion for
an instruction on grand theft from the person as a lesser offense because of insufficient
evidence. Instead, the court instructed the jury on the lesser included offense of
misdemeanor petty theft. At the sentencing hearing, the court denied probation because
of defendant’s lengthy record, but found defendant was under the influence of a
controlled substance when he committed the offense, he had a demonstrated history of
substance abuse, and this offense was drug related. The court referred defendant to a


                                             3.
                                      DISCUSSION
       As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on December 9, 2013, we
invited defendant to submit additional briefing. To date, he has not done so.
       After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
                                     DISPOSITION
       The judgment is affirmed.




counseling or education program in prison which had a substance abuse component,
pursuant to section 1203.096.



                                            4.
