In re Brian P. CA2/1

BACKGROUND

On February 20, 2013, defendant and a companion took seven portable Bluetooth speakers from a Wal-Mart without paying for them. When they were confronted in the parking lot by Kyle McDaniel, a loss prevention officer employed by the store, defendant produced a canister labeled “pepper spray” and said he would spray McDaniel if he did not get back. After defendant was subdued, he admitted he threatened McDaniel with the pepper spray to prevent him from finding the speakers and said he carried the spray for protection. At trial, the only evidence concerning the contents of the pepper spray canister was a photograph of the canister bearing a label that said, “18% Pepper Spray” and “Warning: Strong Irritant.” After a contested hearing, the trial court found defendant violated Penal Code sections 211 (robbery), 459 (burglary), and 22810, subdivision (g)(1) (use of tear gas), and found true the allegation that defendant personally used a dangerous weapon within the meaning of Penal Code section 12022, subdivision (b)(1). The trial court declared

2 defendant a ward of the court, placed him on home probation, and terminated wardship as of the same date. He timely…