P. .v Guiba
Filed 8/4/10 P.
.v Guiba 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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,
Plaintiff and
Respondent,
v.
ARTEMIO GUIBA, JR.,
Defendant and
Appellant.
F057958
(Super.
Ct. No. F08905355)
THE COURT*
APPEAL from
a judgment of the Superior Court of Fresno
County. Wayne R. Ellison, Judge.
Brian A. Wright, under appointment
by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.
Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez,
Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
STATEMENT OF THE CASE
Appellant Artemio Guiba, Jr., was charged by information with one count
of second degree commercial burglary
(Pen. Code,[1] §§ 459/460, subd. (b)) and one count of
petty theft with a prior. (§§ 484, 666.) The information further alleged that
appellant had suffered a prior strike conviction (§§ 667, subds.
(b)-(i),1170.12, subd. (a)-(d)) and four prior prison term enhancements.[2] (§ 667.5, subd. (b).) A jury found appellant guilty of both second
degree commercial burglary and petty
theft with a prior, and the trial court found the prior conviction
allegations to be true. On June 12,
2009, the court denied appellant probation and sentenced him to a total term of
four years, eight months in state prison.
The court imposed the term of two years, eight months on the burglary
count and two consecutive one-year terms for the prior prison terms. On appeal,
appellant contends there is insufficient evidence to support a finding of
asportation because he did not divest the store of possession of the
property. We disagree and will affirm.
FACTS
At approximately 3:00 p.m. on August
17, 2008, Todd Acosta, a loss prevention officer for Home Depot in Clovis, saw
appellant and a female enter the store through the garden center. Appellant and his companion walked into the
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| Description | Appellant Artemio Guiba, Jr., was charged by information with one count of second degree commercial burglary (Pen. Code,[1] §§ 459/460, subd. (b)) and one count of petty theft with a prior. (§§ 484, 666.) The information further alleged that appellant had suffered a prior strike conviction (§§ 667, subds. (b)-(i),1170.12, subd. (a)-(d)) and four prior prison term enhancements.[2] (§ 667.5, subd. (b).) A jury found appellant guilty of both second degree commercial burglary and petty theft with a prior, and the trial court found the prior conviction allegations to be true. On June 12, 2009, the court denied appellant probation and sentenced him to a total term of four years, eight months in state prison. The court imposed the term of two years, eight months on the burglary count and two consecutive one-year terms for the prior prison terms. On appeal, appellant contends there is insufficient evidence to support a finding of asportation because he did not divest the store of possession of the property. Court disagree and will affirm. |
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