People v. Pina CA2/6

Filed 3/4/14 P. v. Pina CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B246739 (Super. Ct. No. 2012025043) Plaintiff and Respondent, (Ventura County)

v.

JUAN LUIS PINA,

Defendant and Appellant.

Juan Luis Pina was charged by information with second degree commercial burglary (Pen. Code, § 459; count 1),1 petty theft with a prior (§ 666, subd. (b); count 2), and receiving stolen property (§ 496, subd. (a); count 3). Count 2 alleged that appellant had a prior conviction for violating Vehicle Code section 10851 (auto theft) and served time in a penal institution for that crime (§ 666, subd. (b)). It further alleged that appellant had a prior strike conviction for a violent or serious felony. (§§ 666, subd. (b)(1), 667, subds. (c)(1) & (e)(1), 1170.12, subds. (a)(1) & (c)(1).) The trial court bifurcated the trial on the priors, and appellant waived a jury trial on those allegations. The jury found appellant guilty of petty theft. (§ 484, subd. (a).) The other counts were dismissed. Appellant admitted the prior conviction allegations in a bifurcated proceeding, but was not asked to admit that he served time in a penal institution for the theft-related conviction. Applying the sentence enhancement for petty 1 All statutory references are to the Penal Code unless otherwise stated.

theft with a prior (§ 666, subd. (b)), the trial court imposed the middle term of two years, doubled to four years based on the prior strike. Appellant was awarded a total of 879 days of custody credit comprised of 587 actual days and 292 conduct credit days. Appellant contends his enhanced sentence must be reversed because he did not admit to having served time for his prior theft-related conviction. We affirm. FACTS Because the facts underlying appellant's conviction are not relevant to the issue raised on appeal, we need not discuss them. In short, a police investigation revealed that appellant had replaced the back seat of his car with a large liquid storage tank into which he transferred gasoline stolen from a service station gas tank. He later sold the gas. DISCUSSION Sentence Enhancement Relying on People v. Epperson (1985) 168 Cal.App.3d 856, and People v. Lopez (1985) 163 Cal.App.3d 946, appellant contends there is insufficient proof of the sentencing enhancement under section 666, subdivision (b), because he did not admit, and the People did not prove, that he served a term in a penal institution for his theft- related conviction. We disagree. Petty theft is normally a misdemeanor. (§§ 486, 488, 490; People v. Terry (1996) 47 Cal.App.4th 329, 331.) Section 666, subdivision (b), allows petty theft to be punished as a felony if the defendant has a prior theft-related conviction for which he was incarcerated plus a prior strike conviction.2 The courts have long defined section 666 as a sentencing factor for the court, not a substantive element of an offense for the jury.