P. v. Delgado 1/23/06 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B180315

Case Date: 03/29/2006

Preview:Filed 1/23/06 P. v. Delgado CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. JESSE JOE DELGADO, Defendant and Appellant.

B180315 (Los Angeles County Super. Ct. No. YA055467)

APPEAL from a judgment of the Superior Court of Los Angeles County. Laura C. Ellison, Judge. Affirmed. William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, and Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent. _______________

Appellant Jesse Joe Delgado was convicted, following a jury trial, of one count of robbery in violation of Penal Code section 211 and one count of commercial burglary in violation of section 459. The jury found true the allegations that appellant personally used a deadly or dangerous weapon in the commission of the crimes within the meaning of section 12022, subdivision (b)(1). The trial court found true the allegation that appellant had suffered a prior violation of section 245, subdivision (a)(1), a serious felony conviction within the meaning of sections 667 and 1170.12, and served a prior prison term within the meaning of section 667.5, subdivision (b). The court sentenced appellant to the mid-term of three years on the robbery conviction, doubled to six years pursuant to section 11701.12, plus five years for the prior prison term pursuant to section 667.5. Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the trial court's finding that his prior conviction was a serious felony. We affirm the judgment of conviction.
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Facts Appellant entered a grocery store and concealed several items on his person. He was observed by a loss prevention officer, who pursued him after he left the store without paying for the items. Appellant threw a bottle of liquor at the officer, but was eventually arrested.

Discussion Appellant contends that the evidence was insufficient to establish that his prior conviction for a violation of section 245, subdivision (a)(1) was a serious felony within the meaning of section 1192.7. Specifically, he contends that the documentation offered by the People is ambiguous and does not show whether a deadly weapon was involved in
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All further statutory references are to that code unless otherwise indicated.

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the assault and does not show whether great bodily injury was actually inflicted, or by whom. We see sufficient evidence to show that appellant was convicted of assault with a deadly weapon. A violation of section 245, subdivision (a)(1) occurs when a defendant "commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means likely to produce great bodily injury." There is no requirement that great bodily injury actually be inflicted. Section 1192.7 provides that a felony assault conviction is a serious felony if a deadly weapon is used in the commission of the assault or if the defendant personally inflicts great bodily injury on another. (

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