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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

 Plaintiff and Respondent,

v.

JUAN LUIS PINA, 

 Defendant and Appellant.

2d Crim. No. B246739

(Super. Ct. No. 2012025043)

(Ventura County)

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.
2

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 theftrelated 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. 

 

2 Section 666, subdivision (b) provides, in relevant part: "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 . . . , and having 

served a term of imprisonment therefor in any penal institution or having been 

imprisoned therein as a condition of probation for that offense, and who is subsequently 

convicted of petty theft, is punishable by imprisonment in the county jail not exceeding 

one year, or in the state prison. [¶] (1) This subdivision shall apply 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."
3

(People v. Bouzas (1991) 53 Cal.3d 467, 473-475; People v. Robinson (2004) 122 

Cal.App.4th 275, 281 [Section 666 "establishes an alternate and elevated penalty for a 

petty theft conviction when a recidivist defendant has served a prior term in a penal 

institution for a listed offense"].) 

After the jury convicted appellant of petty theft, the trial court proceeded to 

try the priors. The prosecutor informed the court: "I . . . have certified copies of the prior 

10851 conviction which I think would be enough given the defendant also admitted it 

[before the jury]. . . . Then I would be asking the Court to take judicial notice of the 

violation of probation that it has before it. And I think that in conjunction with the 

defendant's admission during the trial, the print comparison would be unnecessary. 

However, if the Court feels differently, I can make a phone call and try to have someone 

come over and offer their testimony . . . ." The court asked defense counsel how he 

wished to proceed. 

Defense counsel conferred with appellant off the record. Rather than 

require the prosecutor to prove the allegations, counsel stated: "[T]here's no need for a 

hearing at this time. [Appellant] will admit the priors as alleged in the Information." 

Accepting the court's invitation to voir dire appellant on the admissions, the prosecutor 

inquired: "[I]t has been alleged in the Information [in this case] under Count 2 that you 

suffered a conviction in 2006 in case No. 260000143, which is a Vehicle Code section 

violation of 10851, subsection (a), which is a felony. [¶] Do you at this time admit or 

deny that allegation?" Appellant answered, "I admit." Appellant also admitted his "prior 

conviction [for] a serious or violent felony which is also known as a strike." The court 

stated: "The priors as to Count 2 having been admitted, I don't think there's anything left 

to do except to select a sentencing date. Am I missing something, Counsel?" Both 

counsel replied, "No." 

The information alleged that appellant had a prior conviction for theft and 

had served time in a penal institution for that offense. In Epperson, the court concluded 

that the defendant's admission of his prior conviction, which did not include an explicit 

admission of the separate prison term requirement, could not be construed "as including 
4

admissions of all the necessary elements of the enhancements alleged under . . . section 

667.5, subdivision (b)." (People v. Epperson, supra, 168 Cal.App.3d at pp. 864-865.) In 

Lopez, the court stated: "[T]he record does not indicate that the amendment to the felony 

complaint was read to defendant, that he waived a reading thereof, or that he was ever 

advised that by admitting the validity of the prior convictions he would also be admitting 

that he served separate prison terms therefor. Thus, his admission that the prior 

convictions were valid cannot be construed as an admission of the allegations that he 

served prior, separate prison terms for each of those convictions." (People v. Lopez, 

supra, 163 Cal.App.3d at p. 951.)

To the extent Epperson and Lopez may be read to require per se reversal of 

a sentencing enhancement where the defendant admits a prior conviction but does not 

expressly admit having served a term in a penal institution for that conviction, we decline 

to follow them. Rather, we are persuaded that whether a defendant has admitted to

having served the requisite term in a penal institution turns on the totality of the 

circumstances. (See People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby).)

Here, appellant admitted during cross-examination that he had prior 

convictions for auto theft and felony criminal threats. The entire point of the bifurcated 

proceeding, therefore, was to prove up appellant's violation of probation and subsequent 

incarceration for the theft conviction. After the prosecutor explained how he intended to 

prove that specific allegation, defense counsel halted the proceeding, saying it was 

unnecessary and that appellant "will admit the priors as alleged in the Information." As 

previously discussed, the information alleged in count 2 that appellant was convicted in 

2006 of violating Vehicle Code section 10851, "and served a term for [that] crime in a 

penal institution and was imprisoned therein as a condition of probation." 

Viewing appellant's admissions in the context of the entire proceedings 

(Mosby, supra, 33 Cal.4th at p. 356), it is evident appellant was admitting the allegations 

set forth in count 2 of the information. (See People v. Ebner (1966) 64 Cal.2d 297, 303

["[d]efendant's admission of the prior convictions is not limited in scope to the fact of the 

convictions but extends to all allegations concerning the felonies contained in the 
5

information"]; People v. Cardenas (1987) 192 Cal.App.3d 51, 61 ["admission of prior 

convictions where the charging information specifically alleges the convictions resulted 

in prior separate prison terms is deemed an admission such prison terms were separately 

served"]; see also People v. Franco (1970) 4 Cal.App.3d 535, 540 [admission of prior 

offense after reading of information "included an admission that [defendant] had served a 

term therefor as alleged in the information, even though he was not asked, separately, 

whether he had served such term"].) Accordingly, we reject appellant's contention that 

the court erred by enhancing his sentence under section 666, subdivision (b). 

In reaching this decision, we are by no means encouraging trial courts and 

prosecutors to rely on "the totality of the circumstances" when taking the defendant's 

admissions of priors. Instead, they should ensure that the defendant is asked to admit 

each and every allegation necessary to support the enhancement. 

DISPOSITION

 The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
6

James P. Cloninger, Judge

Superior Court County of Ventura

______________________________

Mark R. Feeser, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez, 

Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.