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People v. Vicens1/3/2002
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Michael Vicens appeals from his conviction by jury verdict of petty theft with a prior in violation of Penal Code section 666. (All statutory references are to the Penal Code unless otherwise indicated.)
Appellant argues the trial court did not adequately warn him of the dangers of self-representation and failed to take a proper waiver of right to counsel. He challenges his stipulation to the prior conviction and argues the trial court erred in doubling his sentence because neither the jury nor the trial court made the requisite findings on the prior conviction. Appellant challenges CALJIC No. 17.41.1. Finally, he argues the trial court abused its discretion in denying his motion to strike a prior conviction.
We find no basis for reversal and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Appellant was arrested and charged with petty theft with a prior conviction in violation of section 666, for taking shrimp from a grocery store. The information alleged a prior 1976 conviction of robbery, a strike within the meaning of section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d). The information also alleged appellant suffered three prior convictions within the meaning of section 1203, subdivision (e)(4): a 1974 federal bank larceny conviction, the 1976 robbery conviction, and a 1982 narcotics offense.
Appellant represented himself at trial, but did not testify in his defense. He was convicted as charged. His motion to dismiss the prior conviction strike was denied. Appellant was sentenced to the upper term of three years, which was doubled because of the strike prior. He was also ordered to pay restitution and a parole revocation fine was stayed. Appellant filed a timely appeal.
DISCUSSION
I.
Appellant cites section 1158, which states that when a previous conviction of a prior offense is charged, and the defendant is found guilty of the offense with which he is charged, the jury "must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction." Section 1158 goes on to describe the proper language for such a finding on the verdict forms. The jury here failed to return a finding of "true" or "not true" to the prior strike allegation. Appellant's 1976 robbery conviction was the basis for both the charge of petty theft with a prior and the strike allegation under the Three Strikes law. Appellant argues that the jury's omission must be construed as a not true finding on the prior and that the trial court therefore erred in doubling his sentence under the Three Strikes law. Respondent argues that there was no error because in convicting appellant of the crime of petty theft with a prior, the jury necessarily decided the truth of the prior robbery conviction allegation.
Appellant's argument is based, in part, on confusion over the jury instructions. Originally, the trial court gave instructions on petty theft without a prior (§ 484), including CALJIC No. 14.02. The jury also was given CALJIC No. 17.25 on the duty of the jury to find whether a prior conviction allegation is true. After closing argument, the trial court informed the jury that it had corrected the instructions.
The new instructions related to petty theft with a prior, the charged offense (§ 666)
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