Filed 12/15/15 P. v. Hutchinson CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,                                                             B257484

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. TA128890)
         v.

LESLIE HUTCHINSON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, John T.
Doyle, Judge. Affirmed.
         Lisa Holder, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
       At his trial for first degree residential burglary (Pen. Code, § 459)1, assault by
means likely to produce great bodily injury (§ 245, subd. (a)(4)), petty theft with priors (§
666, subd. (b)), and misdemeanor vandalism (§ 594, subd.(a)), defendant Leslie
Hutchinson stipulated in the presence of the jury that he previously suffered three
convictions for theft-related crimes and served terms of imprisonment for those offenses.
The court mentioned the stipulation while instructing the jury on the petty theft charge,
and both the prosecutor and defendant’s counsel referred to it in their closing arguments
on the same count. The jury acquitted defendant on the burglary and assault counts but
returned guilty verdicts on the petty theft with priors and vandalism counts.
       Defendant now contends the petty theft conviction must be reversed because the
jury should not have been advised of his stipulation and was incorrectly instructed that
his prior offenses were an element of the petty theft charge. He also argues his trial
counsel rendered ineffective assistance by informing the jury of the stipulation and failing
to object to the jury instruction. Respondent concedes the jury should neither have heard
nor been instructed regarding the stipulation, but contends the error was harmless. We
agree and accordingly affirm defendant’s conviction.
                                 PROCEDURAL HISTORY
       On July 31, 2013, the District Attorney for the County of Los Angeles (“the
People”) filed an information charging defendant with one count of first degree
residential burglary (§ 459) and one count of assault by means likely to produce great
bodily injury (§ 245, subd. (a)(4)) in connection with an incident that occurred on or
about June 28, 2013. The information further alleged defendant suffered two convictions
of serious or violent felonies within the meaning of the Three Strikes Law (§§ 667, subds.
(b)-(j), 1170.12, subd. (d)), two serious felony convictions within the meaning of section
667, subdivision (a)(1), and five felony convictions within the meaning of section 667.5,
subdivision (b).




       1
           All further statutory references are to the Penal Code unless otherwise indicated.
                                               2
       The People filed a second, separate information on August 19, 2013, charging
defendant with one count of felony petty theft with priors (former § 666, subd. (b))2 and
one count of misdemeanor vandalism (§ 594, subd. (a)). These charges stemmed from an
incident that occurred on or about May 7, 2013. The August 19 information alleged
defendant suffered six prior convictions of theft-related offenses for which he was
imprisoned, two convictions of serious or violent felonies within the meaning of the
Three Strikes Law (§§ 667, subds. (b)-(j), 1170.12, subd. (d)), two serious felony
convictions within the meaning of section 667, subdivision (a)(1), and five felony
convictions within the meaning of section 667.5, subdivision (b).



       2
         Section 666 has been amended twice since the May 7, 2013 incident. The
version in effect on May 7, 2013 provided: “Notwithstanding Section 490, any person
described in paragraph (1) who, having been convicted of petty theft, grand theft, auto
theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony
violation of Section 496 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 petty 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.” (Former § 666, subd. (b).) The paragraph (1) to which the statute referred
rendered subdivision (b) applicable “to any person who . . . has a prior violent or serious
felony conviction, as specified in subdivision (c) of Section 667.5 or subdivision (c) of
Section 1192.7.” (Former § 666, subd. (b)(1).)

        Effective January 1, 2014, section 666 was amended to add convictions pursuant
to subdivisions (d) or (e) of section 368 to those triggering its application. (See Former §
666, subd. (b), effective January 1, 2014 through November 4, 2014.) The statute was
amended again, effective November 5, 2014, after voters approved Proposition 47 on
November 4, 2014. Under the current statute, “a violation of section 666 can be a felony
only if (1) the current conviction is for petty theft, (2) the defendant has served a term of
imprisonment for certain specified felonies, including robbery, and (3) the defendant is
required to register as a sex offender or has a prior conviction for a violent or serious
felony offense listed in section 667, subdivision (e)(2)(C)(iv), or for elder abuse in
violation [of] section 368, subdivisions (d) or (e).” (People v. Diaz (2015) 238
Cal.App.4th 1323, 1330.) Defendant’s counsel represents that defendant successfully
petitioned for recall of his sentence on the petty theft conviction pursuant to Proposition
47.

                                              3
       The People moved to consolidate the two informations, and the cases were
consolidated on December 2, 2013. The People filed a consolidated information that
same day. Count 1 of the consolidated information alleged residential burglary (§ 459),
count 2 alleged assault by means likely to cause great bodily injury (§ 245, subd. (a)(4)),
count 3 alleged petty theft with priors (§ 666, subd. (b)), and count 4 alleged
misdemeanor vandalism (§ 594, subd. (a)). The allegations pertaining to defendant’s
prior convictions in the separate informations were carried over into the consolidated
information.
       Defendant pleaded not guilty to all four counts and denied the prior conviction
allegations. The court granted defendant’s request to bifurcate trial of the prior
conviction allegations and defendant proceeded to jury trial on the charged offenses. The
jury acquitted defendant on the burglary and assault charges and found him guilty of
petty theft with priors and vandalism. With respect to the petty theft charge, the jury
also found true an allegation that defendant “suffered 3 Theft related prior convictions
and served time in a Penal Institution.”
       Defendant subsequently admitted the prior conviction allegations. The court
sentenced him to a total of 11 years and four months in state prison: the three-year high
term for petty theft with priors, doubled in light of defendant’s admitted prior strike
convictions, plus one additional year for each of the five admitted prison priors, plus four
months–one-third the one-year term–for the vandalism conviction. Defendant timely
appealed.
                              FACTUAL BACKGROUND
       The following facts pertinent to the petty theft allegation were adduced at trial.
Cristal Perez (Cristal) and her brother, Noe Perez (Noe), lived in a house on a corner lot
in Compton. The house was surrounded by a fence, with one gate in the front and
another in the back. The back gate had a lock, but the front gate did not. The house had
a garage in which Noe, a plumber, stored some of his tools. Noe also stored tools
outside, on the side of the garage near some trash cans.


                                              4
       On the morning of May 7, 2013, Cristal was inside the house when she heard the
front gate. She looked outside and saw the gate was open. She went outside and closed
the gate. She also walked partway around the house but did not see anyone. Cristal went
back inside.
       Cristal then heard another noise, this time from the side door of the house that led
to the garage. It sounded “[l]ike tools dropping,” or “tool boxes dropping on the floor.”
Cristal went back outside through the front door and walked around the house. She did
not see anything on the east side of the house and did not see defendant near the garage.
       Cristal bumped into defendant on the west side of the house, near the back gate.
He was carrying a “chop saw” that had Noe’s name on it. Cristal recognized the saw as
one of Noe’s.
       Cristal testified that after their collision, defendant put the saw on the ground and
said, “Oh. Sorry. Sorry. I thought it was trash.” Cristal told him the saw was “inside of
the property” and only would be trash if it were outside the property. She told defendant
to leave. Defendant left through the front gate, without the saw. Cristal then called law
enforcement.
       Sheriff’s deputies apprehended defendant about two hours later. Defendant was
only about a quarter of a mile from the Perez house. Cristal identified him after he was
arrested and also identified him in court. Neither Cristal nor Noe knew defendant prior to
the incident or gave him permission to enter their property or take the saw.
       Gregory Stickley, one of the responding sheriff’s deputies, testified that Cristal
told him the saw originally had been located in the driveway. Noe testified that although
the saw was outside later that afternoon, he was “100 percent sure” he had left the saw in
the unlocked garage and not in the driveway or near any trash cans. Noe further testified
that the garage was unusually messy when he looked inside it, with “[s]tuff thrown
around” and “scramble[d].” The side door to the garage did not have a lock.
       Defendant did not testify or present evidence pertinent to the May 7, 2013
incident. The court instructed the jury it could consider defendant’s out-of-court


                                              5
statements. Through his counsel, defendant claimed he reasonably believed he was
picking up trash.3
                                       DISCUSSION
I.     The court erred in apprising the jury of defendant’s prior convictions.
       The parties agree that the jury should not have been apprised of defendant’s prior
convictions. We concur.
       Defendant was charged with felony petty theft with priors under former section
666, subdivision (b). The Supreme Court has held that section 666 “is a sentence-
enhancing statute, not a substantive ‘offense’ statute.” (People v. Bouzas (1991) 53
Cal.3d 467, 479 (Bouzas).) Included in title 16 of the Penal Code, “which is directed
primarily to sentencing and punishment” (Bouzas, supra, 53 Cal.3d at p. 478), section
666 “is structured to enhance the punishment for violation of other defined crimes and
not to define an offense in the first instance. It simply refers to other substantive offenses
defined elsewhere in the Penal and Vehicle Codes and provides that if a defendant has
previously been convicted of and imprisoned for any of these theft-related offenses, and
thereafter commits petty theft (defined in section 484), the defendant is subject to
punishment enhanced over that which would apply following a ‘first time’ petty theft
conviction.” (Id. at pp. 478-479.) Put another way, “[s]ection 666 operates like the
Three Strikes law . . .; it does not establish an enhancement, but establishes an alternate
and elevated penalty for a petty theft conviction when a recidivist defendant has served a




       3
          This argument is tantamount to a claim-of-right defense, which “provides that a
defendant’s good faith belief, even if mistakenly held, that he has a right or claim to
property he takes from another negates the felonious intent necessary for conviction of
theft or robbery.” (People v. Tufunga (1999) 21 Cal.4th 935, 938.) Both defendant and
the People recognize this in their briefing, but defendant did not request and the trial
court did not sua sponte deliver a jury instruction on this defense. We need not and do
not consider whether either defense counsel or the trial court erred, however; defendant
has forfeited any potential issue by not presenting it for our review. (See People v.
Clayburg (2012) 211 Cal.App.4th 86, 93.)
                                              6
prior term in a penal institution for a listed offense.” (People v. Murphy (2001) 25
Cal.4th 136, 155.) 4
       Just as prior strike convictions are not elements of charged offenses, “the prior
conviction and incarceration requirement of section 666 is a sentencing factor for the trial
court and not an ‘element’ of the section 666 ‘offense’ that must be determined by a
jury.” (Bouzas, supra, 53 Cal.3d at p. 480.) Thus, when a defendant charged under
section 666 stipulates that he or she has suffered the requisite prior theft-related
convictions and incarcerations, “the fact of the prior conviction and incarceration must
not be disclosed to the jury.” (Id. at p. 471.) “[D]efendant had a right to stipulate to the
prior conviction and incarceration and thereby preclude the jury from learning of the fact
of his prior conviction.” (Id. at p. 480; see also People v. Hall (1998) 67 Cal.App.4th
128, 135.)
       Here, however, defendant’s stipulation had no such protective effect. The
stipulation itself was made in open court before the jury, and the court
contemporaneously instructed the jury that it had to “deem the facts as articulated to you
in the stipulations as having been conclusively proven to you as both counsel factually
agreed that those things did occur.” The court compounded the error by further
instructing the jury with a modified version of CALCRIM No. 1850 (“It has been
stipulated by the parties that the defendant has been convicted of three prior theft
convictions for which he served a term in a penal institution.”). Defense counsel raised
no objection to the instruction. The People incorrectly told the jury during closing
argument that “we also have to show that the defendant was previously convicted of three
theft offenses and that he served a term in a penal institution for that conviction,” and that
“[t]he defense and prosecution agree that the defendant has been convicted of three, theft-
related offenses in the past and that he served a term in a penal institution.” Defense


       4
         As the court of appeal explained in People v. Tardy (2003) 112 Cal.App.4th 783,
787, fn. 2, section 666 technically is not a sentencing “enhancement” because it does not
add an additional period of imprisonment to the base term for petty theft. (See Cal. Rules
of Court, rule 4.405(3).)
                                              7
counsel also told the jury, “one part of that is not reasonable for you to doubt at all. One
of the elements of [petty theft with priors] is that there are three prior felony theft
convictions. We’ve stipulated to that. That part is credible.” In addition, the verdict
form for the petty theft count asked the jury to specifically find that defendant “suffered 3
Theft related prior convictions and served time in a Penal Institution.”
       Defendant’s stipulation should have removed the issue of his prior convictions
from the jury’s knowledge and consideration but plainly did not. This was error under
Bouzas.
II.    The error was harmless.
       Defendant contends the error was prejudicial and warrants reversal. We disagree.
       In Bouzas, the Supreme Court evaluated whether the erroneous admission of
defendant’s stipulation prejudiced him under the standard of People v. Watson (1956) 46
Cal.2d 818, 836-837 (Watson). (See Bouzas, supra, 53 Cal.3d at p. 481.) That is, it
considered whether there was a reasonable probability of a different verdict had the jury
not been informed of the defendant’s prior theft-related conviction. (Ibid.) The Bouzas
court concluded the Watson standard was satisfied. Defendant contends his case is
analogous to both Bouzas and People v. Young (1991) 234 Cal.App.3d 111 (Young),
another case in which the court found prejudicial error. Both Bouzas and Young are
distinguishable.
       In Bouzas, supra, at p. 469 witnesses observed defendant enter an area of a retail
pharmacy that was not accessible to the public and pick up a package of syringes. When
pharmacy employees told defendant to stop, defendant said he would pay for the syringes
at the front of the store. (Ibid.) A pharmacy employee told defendant the syringes only
could be purchased at the pharmacy, and only after certain forms were completed.
Defendant ignored the employee and carried the syringes toward the front of the store.
(Ibid.) An employee followed defendant and saw him climb over a chain barrier and
walk out of the store without waiting in the checkout line. (Ibid.) The store manager
stopped defendant outside the store, but the syringes were not on him. (Id. at p. 470.) At
trial, defendant argued that he intended to pay for the syringes at the front cash register

                                               8
but decided to discard them inside the store rather than wait in the checkout line. (Id. at
p. 481.) The prosecutor speculated that defendant abandoned the syringes in a trash can
outside the store, but offered no evidence in support of this scenario. (Ibid.) The Bouzas
court concluded that these facts rendered the issue of whether a petty theft occurred a
“close question” that would be significantly more likely to be answered in the affirmative
with knowledge of defendant’s history of theft. (Ibid.)
       The court of appeal reached the same conclusion in Young. There, defendant was
charged with illegal taking or driving of a vehicle with a prior conviction for the same
offense (§ 666.5; Veh. Code, § 10851). (Young, supra, 234 Cal.App.3d at p. 113.) The
owner of the car testified that he noticed his car missing approximately 30 or 45 minutes
after parking it outside a friend’s apartment building with the keys in the center console.
(Id. at pp. 113-114.) The car owner called the police, filed a report, and then went
looking for the car. He located the car parked less than a block away. (Id. at p. 113.)
Defendant was sitting inside, listening to the radio. (Id. at p. 115.) The jury convicted
defendant after being told of his prior conviction over his counsel’s objection. (Ibid.)
The court of appeal found the error prejudicial because “the People’s case was not
overwhelming on the single controverted issue, intent to deprive the owner of
possession.” (Id. at p. 115.) The court concluded it was possible for jurors to find that
defendant intended only to temporarily joyride in the car, which was left with the keys
inside and was recovered less than a block away with defendant still inside. (Ibid.) The
court reasoned “[i]t would be difficult or impossible for the jurors to ignore the additional
information that defendant had a previous conviction for the felony offense, a fact which
could well have led them to view him as a professional car thief rather than a
mischievous joyrider.” (Ibid.)
       Here, the primary issue was whether defendant intended to steal the saw or
legitimately believed the saw had been discarded as trash and was free for the taking.
Even if the jury credited Cristal’s testimony that the saw was near the trash cans,
however, there was no dispute that defendant had to (and did) open the gate and traverse
the enclosed property to access and take the saw. The $200-$300 saw that Noe used to

                                              9
cut pipes was not broken. It was near the side of the house, in an area used to store tools,
and was protected from access by a fence with closed gates. No reasonable person could
have believed intact property located in such an area, even if proximate to trash cans and
visible to passersby, was abandoned or otherwise free for the taking. Cristal’s testimony
exemplifies the pervasive and commonsense nature of this conclusion; she told defendant
the saw was “inside of the property. If it was outside of the property it was trash.”
Unlike the defense theories in Bouzas and Young, defendant’s theory is implausible on
the uncontroverted facts of this case.
       Moreover, the evidence of defendant’s prior convictions was admitted only for the
limited purpose of establishing an “element” of the petty theft with priors charge. The
references made to the stipulation during closing argument reflect that limitation; both
were made in connection with argument concerning petty theft charge. More
importantly, the court expressly instructed the jury not to consider defendant’s prior
convictions and imprisonment “for any other purpose.” We presume the jury followed
the court’s instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) The record in this
case supports this presumption. The jury assessed allegations that defendant committed
first degree residential burglary and assault on another occasion–and acquitted him of
those charges despite knowing he had three prior convictions for which he served time in
a penal institution. This further distinguishes the instant case from Bouzas and Young, in
which the juries considered a single charge. Defendant argues the acquittals demonstrate
the jury was “underwhelmed” by the People’s weak case, but the evidence pertinent to
the burglary and assault charges was wholly distinct from that pertinent to the petty theft
and vandalism charges, which arose from a separate, unconnected incident. Defendant
has not shown a reasonable probability that the verdict on the petty theft count would
have been different had the jury been unaware of his priors.
       Defendant argues his conviction nonetheless should be reversed because the court
deprived him of due process by including his priors as an element of the petty theft
offense. That is, he contends the error was not harmless under Chapman v. California
(1967) 386 U.S. 18, 24 (Chapman), which applies when a jury instruction improperly

                                             10
describes or omits an element of the crime from the jury’s consideration (see People v.
Lamas (2007) 42 Cal.4th 516, 526). Assuming Chapman is applicable here, where the
instructions added an element for the prosecution to prove, we “consider whether it
appears beyond a reasonable doubt that the error did not contribute to the jury’s verdict.”
(People v. Mil (2012) 53 Cal.4th 400, 417.) We conclude there was no reversible error.
The court erroneously instructed the jury that the People had to prove defendant
previously suffered theft-related convictions and incarceration, but concurrently removed
that element from the jury’s consideration via the stipulation. Further, the court
instructed the jury that the stipulation could not be considered for any other purpose, and
the verdict on the burglary count indicates the jury followed this mandate and did not use
the evidence for an impermissible purpose.
       Because the error regarding the prior convictions did not prejudice defendant, we
need not consider his alternative argument that his counsel was ineffective for permitting
the jury to learn of them. (See Strickland v. Washington (1984) 466 U.S. 668, 694 [a
defendant claiming ineffective assistance of counsel must establish both error and
prejudice]; People v. Cowan (2010) 50 Cal.4th 401, 493, fn. 31.)


                                     DISPOSITION
       The judgment is affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                       COLLINS, J.

We concur:


EPSTEIN, P. J.


WILLHITE, J.



                                             11
