P. v. Mendoza
A jury convicted defendant of first degree burglary (count 1Pen. Code, 459),[1]petty theft with a prior ( 666), and receiving stolen property ( 496). After a bifurcated bench trial, the trial court found true gang enhancement allegations as to all three counts and an allegation that defendant had a prior strike conviction. On appeal, defendant makes four contentions: (1) the trial court erred in permitting defendant to be convicted of both the theft and receipt of the same property; (2) the trial court erred in finding the gang enhancement allegations true; (3) the trial court erred in imposing an unauthorized sentence on count 1; and (4) the trial court erred in failing to advise defendant of his right to a jury trial on the gang enhancements and to take an appropriate waiver of that right. The People concede defendants first, third, and fourth issues, but contend substantial evidence supported the trial courts finding on the gang enhancement. We agree the court erred in permitting conviction on both counts 2 and 3 and, therefore, reverse the conviction on count 3. Additionally, we agree the court failed to properly admonish and take defendants waiver of his right to a jury trial on the gang enhancements and, therefore, reverse those findings. Finally, Court agree the court imposed an unauthorized sentence on count 1 and direct the superior court to correct the sentencing minute order. Defendants contention that the true finding on the gang enhancements was not supported by substantial evidence is rendered moot by our reversal of that finding on other grounds. In all other respects, the judgment is affirmed.
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