People v. Cortez

Opinion

PUGLIA, P. J.

An amended information charged defendant with petit theft with a prior petit theft (Pen. Code, § 666) and alleged defendant had served a prior prison term for vehicular manslaughter (Pen. Code, § 192, subd. (c)(3)) within the meaning of Penal Code section 667.5, subdivision (b). A jury convicted defendant as charged and defendant admitted the prior prison term allegation. Defendant was sentenced to state prison for an aggregate term of three years.

On appeal defendant contends, principally, that the evidence shows as a matter of law she did not serve a term in a penal institution within the meaning of Penal Code section 666. We deal with this contention in the published part of this opinion and, concluding that defendant is correct on this point but otherwise presents no grounds for reversal, we shall modify the judgment to reduce defendant’s conviction to petit theft.

1

Defendant took items of merchandise displayed for sale at a Mervyn’s department store, placed them in a Mervyn’s bag and walked out of the store

[512]

without paying for them. The items had a retail value of $128.99. Defendant was apprehended by store security guards.

I

Penal Code section 666 provides in relevant part: “Every person who having been convicted of petit theft, . . . 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 petit 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 information charged defendant had been previously convicted of petit theft and “served a term therefor in a penal institution and [was] imprisoned therein as a condition of probation. . . .”

The evidence showed defendant had been convicted of petit theft and granted probation on condition she serve 30 days in county jail. However, the sheriff had permitted defendant to perform 20 days on a work project pursuant to Penal Code section 4024.2 in lieu of jail time.