The People v. Bernstein CA5

Filed 9/27/13 P. v. Bernstein CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent, F064788

v. (Super. Ct. No. BF138398A)

MICHAEL DAVID BERNSTEIN, OPINION

Defendant and Appellant.

THE COURT APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

 Before Gomes, Acting P.J., Kane, J., and Poochigian, J.

A jury convicted appellant, Michael David Bernstein, of carjacking (Pen. Code, § 215, subd. (a);1 count 1), robbery (§ 212.5, subd. (c); count 2), and taking or driving a vehicle without the consent of the owner (Veh. Code, § 10851, subd. (a); count 3). In a bifurcated proceeding, the trial court found true allegations Bernstein served two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Bernstein to state prison for an aggregate 11-year term: the upper term of nine years on count 1 and two consecutive one-year terms for the prior prison term enhancements. The trial court stayed the sentence on counts 2 and 3 pursuant to section 654. Bernstein appeals, contending the trial court erred by: (1) failing to instruct the jury on the offense of grand theft; and (2) refusing his request to personally address the court during sentencing. We affirm. FACTS On September 7, 2011, Sharon Duffin stopped for gas in Bakersfield. She pulled up to a gas pump at the back of the station but discovered that it was not working. She drove to the front of the station and pulled alongside another gas pump. As she proceeded to the second pump, Bernstein approached from the side of the parking lot and told her that her gas cap was off. Duffin exited her car at the second gas pump, leaving her keys in the ignition and her purse in plain view on the seat. Her purse contained two wallets, cell phones, and other personal property. One of the wallets contained four $20 bills, one $10 bill, two $5 bills and six $1 bills. The other wallet contained family pictures and grocery store discount cards. Duffin swiped her gas card at the fuel pump. As she was entering her zip code into the credit card reader, she felt someone move behind her and heard him say, “I 1 All statutory references are to the Penal Code unless otherwise specified.