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P. v. Calderon

P. v. Calderon
03:25:2007



P. v. Calderon



Filed 3/9/07 P. v. Calderon CA2/2



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



SECOND APPELLATE DISTRICT



DIVISION TWO



THE PEOPLE,



Plaintiff and Respondent,



v.



CARLOS CALDERON,



Defendant and Appellant.



B189647



(Los Angeles County



Super. Ct. No. KA072102)



APPEAL from a judgment of the Superior Court of Los Angeles County. Daniel Buckley, Judge. Judgment affirmed as modified.



James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.



Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.



________________



A jury convicted appellant Carlos Calderon of second degree commercial burglary in violation of Penal Code[1]section 459 (count 1), petty theft with a prior in violation of section 666 (count 2), and second degree burglary of a vehicle in violation of section 459 (count 3). The trial court subsequently found true the allegation that appellant had suffered a 1995 conviction for robbery in case No. PA021730.



The court sentenced appellant to the midterm of two years on count 1, doubled to four years due to the strike conviction. The court imposed the same sentence on count 2 and ordered it to be served concurrently. The court imposed a consecutive midterm sentence of eight months on count 3, doubled to 16 months due to the prior strike conviction. Appellants total sentence is five years four months.



Appellant appeals on the grounds that: (1) his conviction in count 1 must be reversed because the trial court failed to instruct the jury on the elements of commercial burglary; (2) his sentence in count 2 should have been stayed pursuant to section 654; (3) the prior strike allegation must be reversed because the trial court improperly required appellant to admit his prior strike conviction when it accepted appellants admission to this conviction for purposes of stipulating to a prior theft conviction under section 666; (4) appellants conviction for petty theft with a prior (count 2) must be reversed because the People did not present any evidence to the jury that appellant had served any custody time related to his prior theft conviction; (5) appellant received ineffective assistance of counsel when his attorney failed to conscientiously research the law related to petty theft with a prior allegation; and (6) the errors appellant has set out cumulatively deprived appellant of due process and a fundamentally fair trial.



FACTS



I. Prosecution Evidence



On the evening of April 28, 2005, Jiangning Zheng (Zheng) parked his car in the parking lot of a Frys Electronics store in the City of Industry. In the trunk there were many items of value, including a laptop computer, a portable television set, external and internal hard drives, and a check in the approximate amount of $2,000. Zheng estimated that the combined value of the electronic items was approximately $2,000. Zheng spent 15 minutes in the store and returned to his car to find the rear drivers side window broken. Zheng saw a policeman in the parking lot, and he told the policeman what had occurred.



Early the next day, Maricela Rowles, a fingerprint technician for the Los Angeles County Sheriffs Department, went to Zhengs home to do a latent print investigation on his car. She lifted 11 latent prints. A print from the inside of the rear drivers side door, located around the inside door frame, was matched to one in the California criminal information database. The print was a left thumb print of a Rolando Davila Ferrera. The print was associated with several aliases, and appellant gave one of these aliases as his name when his fingerprints were taken prior to trial; i.e., Campos, Carlos Calderon. Appellants fingerprint matched the print gleaned from Zhengs car.



On August 28, 2005, George Domingo Gutierrez (Gutierrez) was employed as the manager of loss prevention and safety at Frys Electronics in the City of Industry. As he viewed the monitors in the camera room, his attention was drawn to a male in a high-theft area of the store where the MP3 players were displayed. The individual, later identified as appellant, selected two players and put them in a shopping cart. He then proceeded to another department where he removed a Frys shopping bag from his pocket and put the boxed MP3 players inside the bag. Appellant placed a dance pad box, a slightly larger item, over the MP3 boxes. Appellant then got in the line for customer returns, which is located at the front of the store. After approximately 10 minutes, appellant reached the front of the line, whereupon he stepped out of line and exited the store through the entrance doors with the bag containing the MP3 players. Gutierrez and an associate stopped appellant, placed handcuffs on him, and escorted him into the loss prevention office.



Deputy Henry Floris of the Industry sheriffs station interviewed appellant in Spanish during the booking process. After being informed of his rights, appellant said that a friend of his gave him receipts for MP3 players and told him to get two players and wait in the return line. His friend said he would meet him there and they would return the players and split the money. Floris asked appellant if appellant knew it was wrong to steal the stuff? Appellant answered, Yes.



II. Defense Evidence



Appellant testified in his own behalf. He stated that he entered the Frys store on August 27, 2005, with a friend. He planned on buying an MP3 player for himself and a television for his mother, and he had $980 for the purchases. His friend was also going to buy an MP3 player, and his friend had a discount card. Appellants friend left the store because he had forgotten some receipts and his discount card. Appellant went to take two MP3 players and put them in a cart. He put the MP3 players in a Frys plastic bag that his friend had given him before he went out. He got in the return line because he was waiting for his friend and would be able to see him from there. He had given his friend $450 inside the store to buy the TV and the MP3 player using his discount card. Appellant became impatient and went outside to look for his friend. He had intended to pay for his purchases. He tried to explain this to the security people and the responding police, but they did not understand. The police took him to the station and told him it was a robbery or theft. He was not trying to steal when he had possession of the MP3 playershe was thinking about the money he had given his friend.



On April 28, 2005, appellant went to the Frys store. He left the store and was in the Frys parking lot looking for the person who had given him a ride when a tall American woman came along with a shopping cart and asked him to close the back door to a car. He saw that the window of the car was broken and there was glass inside and outside the car. He also noticed that the flasher lights were on, although he later claimed the lady told him the lights were flashing. Appellant closed the door and the trunk opened. The lady told him that the trunk was open and he told her not to worry. Appellant opened the back door again to shut off the emergency lights. Both times that he touched the door, he did so from the outside. He closed the trunk and started walking away. At first he thought it was the womans car door he had closed, but the woman walked to a different car. Appellant did not take anything out of the car or its trunk.



With respect to the August 2005 incident, appellant said that the police officer misunderstood him, and he did not say he and his friend were going to split the money even though he knew it was wrong to take the MP3 players. He said he put the Frys bag in his pocket because it kept falling out of the cart. He covered up the MP3 players with the bigger item because he had selected the last two players, and he wanted to prevent someone from grabbing them from his cart. He had planned to leave his cart and go outside to look for his friend. At first he said he took the MP3 players with him when he eventually went outside because there was no place to put them, but then said it was because he was concerned about the money his friend took. He acknowledged he was convicted of two separate counts of theft-related felonies in 1995.



DISCUSSION



I. Failure to Instruct on Elements of Commercial Burglary



A. Appellants Argument



Appellant contends that the court prejudicially erred by apparently combining the instruction on the elements of the offenses in counts 1 and 3 (second degree commercial burglary and second degree burglary of a vehicle, respectively) into a single instruction. As a result, appellant argues, the court actually instructed only on the elements of the offense of burglary of a vehicle.



B. Proceedings Below



The court instructed the jury on the crime of burglary with CALCRIM No. 1700 as follows: The defendant is charged in counts 1 and 3 with burglary. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant entered a locked vehicle; AND 2. When he entered a locked vehicle, he intended to commit theft. To decide whether the defendant intended to commit theft, please refer to the separate instructions that I will give you on those crimes. A burglary was committed if the defendant entered with the intent to commit theft. The defendant does not need to have actually committed theft as long as he entered with the intent to do so.[2]



The record reveals no objection to this instruction or any requests for a different instruction.



C. Relevant Authority



A trial court must instruct the jury on the general principles of law that are closely and openly connected with the facts before the court and that are necessary for the jurys understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Montoya (1994) 7 Cal.4th 1027, 1047.) Instructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury. (People v. Holt (1997) 15 Cal.4th 619, 677.) The issue is whether there is a reasonable likelihood the jury understood the charge as the defendant claims. (People v. Clair (1992) 2 Cal.4th 629, 663 [applying the federal standard set out in Estelle v. McGuire (1991) 502 U.S. 62, 72, to state error in jury instructions]; accord, People v. Valencia (2002) 28 Cal.4th 1, 16.) Our role is to determine how it is reasonably likely the jury understood the instruction, and whether the instruction, so understood, accurately reflects applicable law. (People v. Raley (1992) 2 Cal.4th 870, 899.)



Section 459 provides in pertinent part: Every person who enters any house . . . shop . . . store . . . or other building . . . vehicle as defined by the Vehicle Code, when the doors are locked, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.[3]



D. Harmless Error



We conclude that, although the court obviously should have included the word building or store in the burglary instruction in addition to locked vehicle, the instruction that was given adequately explained the elements of burglary to the jury and any error was harmless.



Appellant asserts that the instruction as read failed to instruct on an element of the offense, and that the missing element was appellants intent at the time he entered the store, which was aggressively contested at trial. The element of intent to commit a felony, however, was not omitted from the instruction read to the jury. The trial court and the parties, who did not object to the combined instruction, clearly decided to consolidate the elements of both burglaries, since the elements were identical. The only difference was in the structure entered with the requisite intent, and the required intent was adequately explained to the jury. Whether appellant actually entered the store was not heatedly contested at trial.



Moreover, the trial court correctly read the charge in count 1 to the jury prior to trial, as follows: In Count [] 1 its alleged that on or about August 27, 2005, in the County of Los Angeles, the crime of second degree commercial burglary in violation of Penal Code section 459, a felony, was committed by Carlos Calderon, who did enter a commercial building occupied by Frys Electronics with intent to commit larceny and any felony.



Additionally, at the close of trial, the prosecutor told the jury, There are two counts of burglary charged, one for each event. The burglary No. 1 was the burglary of the car in April. Thats count 1. And burglary No. 2 was the burglary in Frys in the August event, and that burglary is based on the fact that the testimony of Mr. Gutierrez is that Mr. Calderon entered the store with a bag in his pocket, which shows that he entered the store with the intent to take something. The prosecutor explained, Now, the court also told you that for those two counts [counts 1 and 2], its a different intent that must be proven. Its called a specific intent, and the specific intent is that you either entered the car or entered the store with the intent to steal. The prosecutors argument left no doubt that the jury had to find entry into the store in count 1 and the car in count 3. (See People v. Kelly (1992) 1 Cal.4th 495, 526-527 [pointing to the argument of counsel as one basis for finding the jury did not misunderstand the law after being read erroneous jury instruction]; People v. Lee (1987) 43 Cal.3d 666, 677-678 [citing closing argument and strong evidence of intent as factors in finding that instructional error regarding intent to kill was harmless].)



We conclude there is no reasonable likelihood the jury misunderstood the charges against appellant as he alleges, and the trial courts error was harmless under any standard. (Chapman v. California (1967) 368 U.S. 18, 21; People v. Watson (1956) 46 Cal.2d 818, 836.)



II. Sentence in Count 2 and Section 654



A. Appellants Argument



Appellant contends that the burglary in count 2 formed part of a single indivisible course of conduct incident to the commission of the theft, the target crime appellant intended to commit when he entered the store.



B. Relevant Authority



Section 654 applies when a course of conduct comprises an indivisible transaction punishable under more than one statute, with the divisibility of the course of conduct depending on the intent and objective of the actor. If all the offenses are incident to one objective, the defendant may be punished for any one of the offenses but not for more than one. (People v. Bauer (1969) 1Cal.3d 368, 376-377.)



C. Analysis



Respondent concedes that appellants claim has merit, and we agree. The burglary in count 1 was committed for the purpose of stealing the item that was the subject of the petty theft in count 2. The trial court noted that the two offenses arose from the same set of operative facts. The correct procedure for sentencing a defendant who is convicted of several counts that fall within the purview of section 654 is to stay execution of the sentences rather than to impose concurrent sentences. (People v. Cruz (1995) 38 Cal.App.4th 427, 434.) We must therefore modify the sentence to strike the concurrent sentence in count 2 and to stay the punishment on that count.



III. Appellants Admission to the Prior Strike Conviction



A. Appellants Argument



Appellant contends that the court denied appellant his right to a jury trial on the fact of his prior conviction, as provided for by section 1025, when it constructively forced appellant to admit the strike as part of the stipulation of a prior theft conviction related to the charge of petty theft with a prior. According to appellant, the court compounded the error when it failed to advise appellant of his right to remain silent and not incriminate himself when the court took appellants waiver of a jury trial on the prior serious felony allegation. Therefore, appellant argues, his waiver of his right to a jury trial on the truth of the prior conviction was not knowing and voluntary. Appellant asserts that the matter must be remanded for retrial on the prior conviction allegation.



B. Proceedings Below



Prior to trial, the trial court stated that the fact of appellants prior conviction was an element of count 2, petty theft with a prior. Defense counsel did not directly respond but asked the court to bifurcate the trial on the prior conviction allegation and to instruct the jury regarding a theft with respect to count 2. The court asked counsel if it preferred a bench trial or a jury trial in the second portion of the bifurcated proceeding. Counsel stated he would discuss it with appellant, and the court agreed to deal with this issue later.



After a recess, the trial court stated that its research had revealed that when a prior conviction is an element of an offense, the prosecutor may prove it in the presence of the jury unless the defendant admits the prior. The prosecutor asked the trial court if the admission would be only for purposes of the guilt phase or also for purposes of sentencing under the three strikes law. The court replied, The general rule, as I read it, is that it applies to both or all phases.



Defense counsel conferred with appellant and announced that appellant would admit the prior conviction. The following colloquy ensued: The Court: Okay. Mr. Calderon, have you had a chance to discuss the issue of your prior and the proof of that with your attorney? The Defendant: Yes. The Court: Do you understand you have the right to confront witnesses, call your own witnesses and actually dispute whether or not the prior occurred? The Defendant: Yes. The Court: And have you made a decision to admit the prior conviction, and that being specifically the conviction from case number PA021730, conviction date of November 9, 1995, for Penal Code section 211, Penal Code section 487(a), in Los Angeles Superior Court? Are you going to admit that prior? The Defendant: Yes. The Court: Counsel join in that? Mr. Kwatcher [defense counsel]: Join. The Court: Okay. Well again proceed with count 2 with the jury only being told that its for Penal Code section 666, a petty theft. Ms. Zepeda [prosecutor]: Im sorry, your honor. Can the court inquire whether the defendant understands this admission is for both purposes of the guilt phase of the trial and for sentencing purposes as well? The Court: I will. Mr. Calderon, do you understand that by admitting the prior conviction that youre admitting it for not only the trial on your guilt as to count 2, but also for sentencing? The Defendant: Yes.



When appellant decided to testify, the prosecutor announced her intention to impeach him with his prior convictions. The court agreed that appellant could be impeached with information that he was convicted in 1995 of two felony counts of theft-related offenses. During cross-examination, when the prosecutor asked appellant if he had been so convicted, appellant admitted that he was.



At sentencing, the court stated that appellant had admitted during cross-examination that he had been convicted of a violation of section 211 in case No. PA021730. The People offered into evidence a section 969b packet,[4]of which the trial court took judicial notice. The trial court found that appellant was convicted of violating section 211 in case No. PA021730.



C. Relevant Authority



Section 1025 provides in pertinent part: (b) Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived. [] (c) Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury. [T]he pertinent language of section 1025 is straightforward and clear: if a defendant pleads not guilty to the underlying offense, and a jury decides the issue of guilt, that same jury shall decide whether the defendant suffered the prior conviction, unless the defendant waives jury trial. [Citations.] (People v. Tindall (2000) 24 Cal.4th 767, 772.) Section 1025, subdivision (b) is not a statutory preference, but a procedural requirement. (People v. Tindall, supra, at p. 776.)



When a prior conviction is an element of a crime, the defendant cannot preclude the jury from hearing of the prior conviction by stipulating to it, although the nature of the prior conviction should be withheld from the jury. (People v. Bouzas (1991) 53 Cal.3d 467, 479; Cal. Const., art. I, 28, subd. (f) [When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.]; People v. Valentine (1986) 42 Cal.3d 170, 181-182; People v. Wade (1996) 48 Cal.App.4th 460, 469.) When a prior conviction is a sentencing factor rather than an element of the current crime, however, the defendant may stipulate to it, thereby preventing the jury from learning of the prior. (People v. Bouzas, supra, 53 Cal.3d at p. 480; People v. Wade, supra, 48 Cal.App.4th 460, 469)



Under section 666, the fact of a defendants prior conviction and incarceration is a sentencing factor for the court to consider, not an element of the offense. (People v. Bouzas, supra, 53 Cal.3d at p. 480.) Section 666 does not establish a separate, substantive crime of petty theft with a prior conviction. (People v. Bouzas, supra, at p. 479.) The substantive offense is simply petty theft as defined in sections 484, subdivision (a), and 488. Charging a defendant under section 666 merely puts a defendant on notice . . . that if he is convicted of the substantive offense and if the prior conviction and incarceration allegation of section 666 is admitted or found true, he faces enhanced punishment at the time of sentencing. (Id. at p. 479.)



D. Harmless Error



Although the trial court erred when it required appellant to admit to having suffered the 1995 robbery conviction as an element of count 2 and for sentencing purposes, we conclude that the error was harmless under any standard. (Chapman v. California, supra, 386 U.S. 18; People v. Watson, supra, 46 Cal.2d 818.)



Appellant was entitled to a bifurcated proceeding on the issue of his prior conviction for purposes of the allegation pursuant to section 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), and he received one in that the trial court found the allegation true based on appellants admission during cross-examination and the section 969b packet presented by the People. The courts error did, however, deny appellant the opportunity to have a jury trial during the second portion of the bifurcated proceeding. (People v. Epps (2001) 25 Cal.4th 19, 25-28 (Epps).) Although the issue was waived due to appellants failure to object, we address appellants arguments and find any error harmless. (Id. at p. 29.)



As stated in Epps, the jury was limited to deciding whether the prior conviction even occurrednot the truth of the enhancement allegation. (Epps, supra, 25 Cal.4th at p. 25.) Because appellant took the stand during the guilt phase to testify as to his version of the facts, he was subject to being impeached with his prior convictions. When asked if he had committed the theft-related offenses, he admitted having done so. The jury would therefore necessarily have determined that appellant had suffered the prior conviction based on appellants admission and the section 969b packet offered as evidence by the People. Therefore, it is not reasonably probable appellant would have achieved a more favorable result on the trial of the prior conviction allegation had he not been erroneously denied the opportunity to undergo a jury trial on the issue. (See Epps, supra, at p. 29.)



Appellant claims, however, that the court compounded its error when it failed to advise appellant of his right to remain silent and not incriminate himself when the court took appellants waiver of a jury trial on the allegation of a prior serious felony conviction. As a result, he claims, his waiver of the right to a jury trial on the truth of the allegation was not knowing and voluntary.



At the outset, appellant has waived this issue on appeal by a failure to object below. (People v. Vera (1997) 15 Cal.4th 269, 272, 274.) In any event, we conclude that appellants waiver was knowing and voluntary under the totality of the circumstances. People v. Mosby (2004) 33 Cal.4th 353 (Mosby) addressed the issue of voluntariness with respect to an admission of a prior conviction allegation. Mosby held that a defendants admission of a prior conviction allegation immediately after a jury trial can be voluntary and intelligent even if the defendant is advised only of the right to a trial on the prior conviction allegation, as long as the totality of circumstances surrounding the admission supports such a conclusion. (Id. at p. 356.)



In Mosby, prior to the jurys returning a verdict, the trial court asked the defendant if he wished the jury to try the prior conviction allegation.Defense counsel told the court that Mosby would waive his right to a jury trial and admit the prior. The trial court advised Mosby of his right to a jury trial on the truth of the prior conviction allegation, and Mosby waived that right. When the jury returned a guilty verdict, defense counsel again indicated that Mosby would admit the prior. The trial court obtained Mosbys waiver of a court trial on the allegation as well and took Mosbys admission that he had suffered the prior conviction. On appeal, Mosby contended his admission was not voluntary orintelligent because he hadreceived an incomplete advisement of his rights. (Mosby, supra, 33 Cal.4th at pp. 357-359.)



In making its determination, Mosby first discussed the landmark case of Boykin v. Alabama (1969) 395 U.S. 238, 243 (Boykin), which held that a defendant seeking to plead guilty is denied federal due process unless his plea is intelligent and voluntary. Mosby noted that Boykin stated that when the record was silent as to whether a defendant had been advised of, or waived, his rights to trial by jury, to confront witnesses, and against compulsory self-incrimination, the Boykin court refused to presume a knowing and voluntary waiver of these constitutional rights. (Mosby, supra, 33 Cal.4th at p. 359, citing Boykin at p. 238.)



Mosby went on to point out that, following Boykin, the California Supreme Court held in In re Tahl (1969) 1 Cal.3d 122 (Tahl) that the three rights must be specifically and expressly enumerated and waived by a defendant prior to acceptance of his or her guilty plea. (Mosby, supra, 33 Cal.4th at p. 359, citing Tahl, supra, at p. 132.) That holding was extended as a judicial rule of criminal procedure to the admission of prior conviction allegations by In re Yurko (1974) 10 Cal.3d 857, 863 (Yurko). (Mosby, supra, at pp. 359-360.)



Following the Yurko decision, the failure to expressly advise a defendant of all three Boykin-Tahl rights and to obtain waivers of each right constituted automatic reversible error under California law. (Mosby, supra, 33 Cal.4th at p. 360.) In People v. Howard (1992) 1 Cal.4th 1132, 1178-1179 (Howard), however, the California Supreme Court arrived at a different conclusion and stated that the pertinent inquiry was whether the record affirmatively showed that the admission was voluntary and intelligent under the totality of the circumstances. (Mosby, supra, at p. 360, citing Howard, supra, at p. 1175.) According to Mosby, [a]fter our Howard decision, an appellate court must go beyond the courtroom colloquy to assess a claim of Yurko error. [Citation.] Now, if the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of the entire proceeding to assess whether the defendants admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances. [Citation.] (Mosby, supra, at p. 361.)



Under Mosby, cases in which defendants received no admonitions whatsoever were to be differentiated from those cases in which the Boykin-Tahl advisements were merely incomplete. In the former situation, a valid admission would not be inferred. (Mosby, supra, 33 Cal.4th at pp. 361-362.) With respect to instances of incomplete advisements, Mosby disapproved several cases in which appellate courts had found no voluntary and intelligent waiver when the defendant had been advised of his trial right, but not expressly advised of the rights to confrontation and against compulsory self-incrimination. (Mosby, supra, at p. 365, fn. 3, disapproving People v. Van Buren (2001) 93 Cal.App.4th 875; People v. Carroll (1996) 47 Cal.App.4th 892; People v. Garcia (1996) 45 Cal.App.4th 1242; People v. Torres (1996) 43 Cal.App.4th 1073; People v. Howard (1994) 25 Cal.App.4th 1660.) In Mosby itself, the court found that the totality of the circumstances established a voluntary and intelligent admission of Mosbys prior conviction. (Mosby, supra, at p. 365.) These circumstances included the fact that Mosby admitted the prior conviction after the jury found him guilty of the charged offense. Because Mosby had not testified, the court stated that Mosby was clearly aware of and had indeed exercised his right to remain silent, and since Mosby had confronted the witnesses against him at trial, he would have understood that at a trial he had the right of confrontation. (Id. at p. 364.)



Other circumstances relevantto the issue of whether a defendant knowingly waived constitutional rights included the defendants prior experience with the criminal justice system. That is so because previous experience in the criminal justice system is relevant to a recidivists knowledge and sophistication regarding his [legal] rights. [Citations.] (Mosby, supra, 33 Cal.4th at 365, fn. omitted.) In Mosbys case, his prior conviction was based upon a guilty plea, at which he would have received Boykin-Tahl advisements. (Ibid.)



In the instant case, although appellant did not make his admissions after the jury trial, we conclude that the totality of the circumstances shows appellants admission to be voluntary and knowing. The record reveals that the court advised appellant of his right to a jury trial and to confront the witnesses against him. With respect to the omitted advisement of the right to remain silent, in contrast to Mosby, appellant testified at trial and we cannot infer he was aware of his right against self-incrimination because of a choice not to testify. However, appellant conferred with his attorney prior to making his admission, and the record shows that appellant again had a discussion with his counsel prior to deciding to testify in his own behalf. Moreover, the abstract of judgment from appellants prior convictions shows that he pleaded guilty to the prior offenses, which indicates he was aware of his right to remain silent before pleading guilty or making an admission. (See Mosby, supra, 33 Cal.4th at p. 365.) Although it clearly would have been preferable for the trial court to read all three advisements to appellant and obtain waivers in each instance, under the totality of the circumstances we conclude his admission was voluntary and intelligent. (Ibid.)



Finally, we do not believe appellants decision to testify can be attributed to the lack of the advisement of the right to remain silent at the time of the pretrial admission. Appellant was told that because of his admissions, the jury would not learn of his prior convictions. He was clearly aware that the convictions could be brought out if he testified, however, and he chose to do so. It does not logically follow that his decision to testify was tainted, as appellant asserts, by the defective admonition pretrial. Appellant chose to give his version of the facts and allow the jury to learn of his prior offenses.



We conclude that the trial courts errors in taking appellants admission of his prior conviction and in giving an incomplete advisement were harmless.



IV. Sufficiency of Evidence in Count 2 (Petty Theft With a Prior)



A. Appellants Argument



Appellant asserts that he did not admit anything but the bare fact of his prior conviction for theft when stipulating to the conviction. Therefore, he did not admit to having served a term of imprisonment, an essential element of the offense of petty theft with a prior. He claims the People failed to offer any evidence that appellant had served a period of incarceration relative to the prior conviction, and the court failed to provide proper instructions and verdict forms to the jury that included this element. He maintains that his conviction in count 2 must therefore be reversed.



B. Relevant Authority



Section 666 provides in pertinent part that [e]very person who, having been convicted of . . . grand theft, . . . robbery, . . . and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.



The defendant must have served a term of imprisonment in order to satisfy the elements of a violation of section 666. (People v. Cortez (1994) 24 Cal.App.4th 510, 512-514.)



C. Evidence Sufficient



It is true that appellant admitted only the bare fact of his having suffered the convictions in case No. PA021730. The CALCRIM instruction for petty theft with a prior, CALCRIM No. 1850, requires the jury to decide whether the evidence proves that the defendant was previously convicted of the alleged crime and whether he served a term in a penal institution for that conviction. The instruction informs the jury that the People have the burden of proving the allegation beyond a reasonable doubt.



Because, as discussed previously, the prior conviction and incarceration requirement of section 666 is a sentencing factor for the trial court rather than an element of the offense of petty theft with a prior, the defendant may stipulate to the conviction and request a bifurcated trial. Therefore, the jury must be presented evidence of the prior conviction and given the pertinent instructions only if the defendant does not stipulate and the court does not grant a bifurcated trial. (People v. Bouzas, supra, 53 Cal.3d at pp. 478-480.)



In the instant case, appellant clearly intended to stipulate to the prior convictions. Given appellants wish to keep the jury from learning of the circumstances of his prior convictions and to have the jury instructed only on petty theft, the court properly did not instruct the jury with CALCRIM No. 1850 or provide verdict forms for the allegation.



As noted previously, despite appellants ostensible admission of the prior conviction for purposes of the three strikes law, the court did conduct a bifurcated proceeding and found the allegation true. The trial court had before it the section 969b packet, which sufficiently linked appellant to the conviction and term of incarceration. Within the packet is the abstract of judgment, which shows that appellant was sentenced to four years in state prison for the offenses to which he pleaded guilty in 1995. The packet also contains a chronological history of appellants time in prison, from reception on December 4, 1995, to his parole on February 13, 1998, and to his eventual discharge from parole on February 15, 2001. The packet includes what we observe to be a very clear, enlarged black-and-white photograph of appellantnot the fuzzy image that appellant describes. The abstract of judgment is for a Campos, Carlos C. with an alias of Gutierrez, Nelson Zuzunaga. The fingerprint card in the packet bears the same name and alias, and the card was signed by Carlos Campos Calderon. The California Department of Corrections number is identical on all documents. At the beginning of trial appellant confirmed that his correct name was Carlos Calderon, and at the beginning of the sentencing hearing, appellant confirmed that his name was Carlos Campos Calderon. At trial, a forensic specialist with the Los Angeles County Sheriffs Department testified that he took appellants fingerprints at the preliminary hearing and compared them to the fingerprints in the automated fingerprint information system and the latent print lifted from the victims car. Appellant gave his name to the specialist as Campos, Carlos Calderon. We conclude there was sufficient evidence for the trial court to conclude that appellant served a term of imprisonment in relation to his prior theft conviction.



V. Alleged Ineffective Assistance of Counsel



A. Appellants Argument



Appellant contends that, to the extent we conclude that his failure to object to the introduction of his confession at the hearing on the prior conviction allegation and his failure to object to the courts insistence that appellant had to stipulate to the prior conviction allegation resulted in the forfeiture of issues on appeal, he received ineffective assistance of counsel. Appellant contends that, had counsel researched the issue of petty theft with a prior and verified that it was not a substantive crime, appellant would have been able to remain silent during the guilt phase of trial. This would have forced the prosecutor to prove appellant was the person who suffered the prior conviction in a properly bifurcated trial. Appellant maintains that the evidence in the section 969b packet was not overwhelming evidence that appellant was the person who was convicted in case No. PA 021730.



B. Relevant Authority



In order to sustain on appeal a claim of ineffective assistance of counsel, a defendant must show counsels performance was deficient and it is reasonably probable defendant would have achieved a more favorable result in the absence of the asserted error. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) Trial counsels performance may be deemed deficient only if trial counsel makes a critical tactical decision which would not be made by diligent, ordinarily prudent lawyers in criminal cases. (People v. Pope (1979) 23 Cal.3d 412, 424.) Furthermore, a defendant must affirmatively show that it is reasonably probable a determination more favorable to him would have resulted in the absence of counsels failings. (Strickland v. Washington (1984) 466 U.S. 668, 694-696 (Strickland); People v. Ledesma, supra, 43 Cal.3d 171, 217-218.) A reasonable probability is one sufficient to undermine confidence in the outcome. (Strickland, supra, at p. 694.) An appellate court need not address both prongs of the test before rejecting a claim of ineffective assistance of counsel. (Id. at p. 697.)



C. No Prejudice



Since we have decided the merits of appellants arguments, his trial counsels actions or omissions did not result in forfeiture of the issues on appeal. Furthermore, although appellants counsel failed to object to the courts erroneous assumption that appellant had to admit the prior conviction prior to trial because it was an element of the charged crime, appellant was not prejudiced by this failure. Therefore no claim of ineffective assistance of counsel may lie. Even if appellant had undergone a jury trial during the second portion of a bifurcated proceeding, it is not reasonably probable he would have achieved a more favorable result, given his admission during his testimony and the information in the section 969b packet. As stated previously, appellant chose to testify, knowing full well he could be impeached with his prior convictions, despite having admitted the prior convictions so that the jury would not be aware of them. (Evid. Code, 788.)



VI. Cumulative Error



Appellant contends that this court must find that the cumulative unfair prejudice of the errors in his trial deprived appellant of due process and a fundamental fair trial under the federal and California Constitutions. According to appellant, all of his convictions must be reversed and the matter must be remanded for a new trial.



We find no merit in appellants cumulative error argument. Our review of the record assures us that appellant received due process and a fair trial. (People v. Ashmus (1991) 54 Cal.3d 932, 1006.) The errors regarding the jury instructions and the prior conviction admission were unrelated and harmless, and there has been no showing of cumulative prejudicial error of a degree sufficient to permit reversal. As the California Supreme Court has stated, A defendant is entitled to a fair trial, not a perfect one. (People v. Mincey (1992) 2 Cal.4th 408, 454.)



DISPOSITION



The judgment is modified to strike the concurrent sentence in count 2 and to order the trial court to stay the sentence in count 2 pursuant to section 654. In all other respects, the judgment is affirmed. The superior court is directed to amend the abstract of judgment to reflect the modified sentence and to forward a copy of the amended abstract of judgment to the Department of Corrections.



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



___________________, P. J.



BOREN



We concur:



_____________________, J.



ASHMANN-GERST



_____________________, J.



CHAVEZ



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[1] All further references are to the Penal Code unless otherwise stated.








[2] The parties agreed that the actual reading of the instructions would not be transcribed. The court invited the parties to object if it read any instruction incorrectly.








[3] CALCRIM No. 1700 in its unmodified version provides in pertinent part: The defendant is charged [in Count _____] with burglary. [] To prove that the defendant is guilty of this crime, the People must prove that: [] 1. The defendant entered (a/an) (building/room within a building/locked vehicle/ _____ <insert other statutory target>); [] AND [] 2. When (he/she) entered (a/an) (building/room within the building/locked vehicle/_____ <insert other statutory target>), (he/she) intended to commit (theft/[or] _____ <insert one or more felonies>).








[4] Section 969b allows the introduction into evidence of records of conviction and incarceration when these records have been certified by the official custodian of such records.





Description A jury convicted appellant Carlos Calderon of second degree commercial burglary in violation of Penal Code[1]section 459 (count 1), petty theft with a prior in violation of section 666 (count 2), and second degree burglary of a vehicle in violation of section 459 (count 3). The trial court subsequently found true the allegation that appellant had suffered a 1995 conviction for robbery in case No. PA021730.
The court sentenced appellant to the midterm of two years on count 1, doubled to four years due to the strike conviction. The court imposed the same sentence on count 2 and ordered it to be served concurrently. The court imposed a consecutive midterm sentence of eight months on count 3, doubled to 16 months due to the prior strike conviction. Appellants total sentence is five years four months.
Appellant appeals on the grounds that: (1) his conviction in count 1 must be reversed because the trial court failed to instruct the jury on the elements of commercial burglary; (2) his sentence in count 2 should have been stayed pursuant to section 654; (3) the prior strike allegation must be reversed because the trial court improperly required appellant to admit his prior strike conviction when it accepted appellants admission to this conviction for purposes of stipulating to a prior theft conviction under section 666; (4) appellants conviction for petty theft with a prior (count 2) must be reversed because the People did not present any evidence to the jury that appellant had served any custody time related to his prior theft conviction; (5) appellant received ineffective assistance of counsel when his attorney failed to conscientiously research the law related to petty theft with a prior allegation; and (6) the errors appellant has set out cumulatively deprived appellant of due process and a fundamentally fair trial.
The judgment is modified to strike the concurrent sentence in count 2 and to order the trial court to stay the sentence in count 2 pursuant to section 654. In all other respects, the judgment is affirmed. The superior court is directed to amend the abstract of judgment to reflect the modified sentence and to forward a copy of the amended abstract of judgment to the Department of Corrections.


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