Filed 9/20/13 P. v. Guevara CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE , Plaintiff and Respondent ,

v.
MATTHEW DAVID GUEVARA ,
De fendant and Appellant

. F065032
(Super. Ct. No. CRF36991)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge.
William W. Lee , under appoi ntment by the Court of Appeal, for Defendant and Appel lant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

- ooOoo

-

* Before Cornell, Acting P.J., Gomes, J., and Kane, J.2

.

Matthew David Guevara was convicted of burglary, conspiracy to commit burglary, and petty theft with three or more theft

- related prior convictions

. The parties agree that there was sufficient evidence of only two theft

- related prior convictions

. We
will reverse the judgment on that count in part and remand for retrial or resentencing.

FACTUAL AND PROCEDURAL HISTORIES Guevara and two others entered a Kohl’s department store in Sonora, took some sheets and pillowcases from the shelves, and then returned them for $ 187.66 in store credit, even though they had never bought them in the first place. A loss prevention supervisor watched them doing this . The sheriff’s department was called

. The district attorney filed an information charging G uevara with three counts : (1) conspiracy to commit commercial bur glary (Pen. Code, §§ 182, subd. (a)(1), 459) ; 1 (2) second degree commercial burglary (§ 459); and (3 ) petty theft with three prior theft

related convictions (§§ 484, 666 ). The information alleged that Guevara had five prior
theft

- related convictions (§ 666), as well a s four prior felony convictions (§ 1203,
subd. (e)(4) )

. Before trial, Guevara admitted to two of the prior theft

- related convictions. The jury found Guevara guilty of each count

. The court imposed a county jail term of three years (the upper term) on count 3, plus eight months (one

- third of the middle term) on ea ch of counts 1 and 2, stayed under section 654. Applying
section 1170, subdivision (h)(5)(B), t he court divided the sentence between 18 m onths of
incarceration and 18 months of mandatory supervision.
DISCUSSION Petty theft is a misdemeanor, punishable by a fine and up to six months in county jail. (§ 490.) Petty theft with three prior convictions for certain enumerated theft

- related

o f fenses, however, is a wobbler if the defenda nt served terms in penal insti tutions for each of those offenses or was incarcerated as a term of probation. It is punishable either

1 Subsequent statutory references are to the P enal Code

.3

.

by up to a year in county jail or by 16 months, two years, or three years in c ou nty jail. (§§ 666, 1170, subd. (h).) In this case, the information alleged five prior theft

- related convictions. The People stipulated to the dismissal of two of these because they were duplicative. Guevara then was asked to admit to, and did admit to, two others. The record does not show why he was not asked to admit to the remaining one. The parties agree that the court could not properly impos e the three

- year term for

count 3 when only two prior theft

- related convictions were established. Fu rther, Guevara was not asked to admit to incarceration for any of the priors, yet the statute requires proof
of incarceratio n. The parties also agree that even the admissions Guevara made were not
valid because the court did not give the required admoniti ons about the rights Guevara was waiving by admitting to the priors. (See Boykin v. Alabama (1969) 395 U.S. 238, 242; In re Tahl (1969) 1 Cal.3d 122, 132.) Finally, the parties agree that, under Monge v. California (1998) 524 U.S. 721, the People are e ntitled to retry the question of whether Guevara had the priors necessary to support the enhanced sentence. The usual bar on retrial of findings reve rsed for
insufficient evidence

— which is based on double

- jeopardy consid erations

— does not apply to priors. ( Id. at pp. 727

- 734.) Having reviewed the record, we conclude that the parties are correct. Reversal of

count 3 in part and remand are necessary.
DISPOSITION
The conviction on count 3, petty theft with three or more theft

- related prior convictions, is reversed in part

. Specifically, the jury’s finding that Guevara com mitted petty theft is affirmed and the court’s finding that Guevara had the necessary prior
convictions is reversed . T he sentence is vacated. The case is remanded to the superior

cour t for retrial or resentencing. The judgment is affirmed in all other respects.