P. v. Calderon
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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