P.v . Mendoza
A jury convicted defendant of first degree burglary (count IPen. Code, 459),[1]petty theft with a prior (count II 666), and receiving stolen property (count III 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 court erred in permitting defendant to be convicted of both the theft and receipt of the same property; (2) the court erred in finding the gang enhancement allegations true; (3) the court erred in imposing an unauthorized sentence on count I; and (4) the 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 II and III and, therefore, reverse the conviction on count III. Likewise, we agree the court imposed an unauthorized sentence on count I and direct the superior court to correct the sentencing minute order. Additionally, Court 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, we reverse the true findings on the gang enhancements because Court find they were not supported by substantial evidence. In all other respects, the judgment is affirmed.
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