F 14.40

F 14.40 n1 Petty Theft: Stipulation To Prior (PC 666).

In People v. Bouzas (91) 53 C3d 467 [279 CR 847], the court concluded that the prior conviction and incarceration requirement of PC 666 is an enhancement and not an “element” of the offense. Accordingly, the defendant has the right to stipulate to the prior conviction and incarceration and thereby preclude the jury from learning about the fact of his prior conviction. (Id. at 480; but see People v. Duarte DEPUBLISHED (97) 56 CA4th 420 [65 CR2d 415] [before defendant may stipulate to fact of a prior, court must obtain Yurko waiver. (In re Yurko (74) 10 C3d 857 [112 CR 513]).)

See also FORECITE F 10.38 n1, FORECITE F 10.41 n5 and FORECITE F 12.65 n2.

(See FORECITE EA V(B) – EA V(D).)

F 14.40 n2 Petty Theft: Bifurcation Of Prior (PC 666).

[See FORECITE EA II(B).]

F 14.40 n3 Petty Theft With Prior: Whether Enhancement Must Be Pleaded In Charging Document.

(But see People v. Tardy (2003) 112 CA4th 783 [prosecution has to prove a PC 666 prior at the preliminary hearing to prosecute a PC 666].)

F 14.40a

Petty Theft With Prior: Burglary Must Be Theft Related

*Add to CJ 14.40 when appropriate:

Burglary may not be used as the basis for convicting the defendant of petty theft with a prior unless the prosecution has proven beyond a reasonable doubt that the burglary was theft-related. In order to do so, the prosecution must prove that the defendant entered with the intent to commit the crime of __________ [insert intended crime, e.g. theft]. Theft requires proof of the following elements: [insert elements of intended crime].

Points and Authorities

“The focus of [PC] 666 is on theft-related priors …. The apparent intent of the statute is to provide extra punishment for recidivist thieves, rather than ex-felons who commit petty theft.” (People v. Ancira (85) 164 CA3d 378, 381 [210 CR 527]; see also, People v. Bouzas (91) 53 C3d 467, 478 [279 CR 847] [“… under [PC] 666 the ‘element’ to be proved is a ‘prior theft-related conviction,’ not a ‘prior felony conviction.’”].) Hence, because an unspecified burglary is not necessarily theft-related (see People v. Maxey (85) 172 CA3d 661, 668-69 [218 CR 274],) the prosecution must be required to prove the theft-related element of the charge when the prior conviction is a burglary.

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]

F 14.40b

Petty Theft With Prior — Prior Not Admitted:

Intent To Deprive Of Main Or Major Value

(PC 666)

*Modify CJ 14.40, 2nd paragraph and Element 1, as follows [added language is capitalized]:

Any person who steals, takes, carries, leads, or drives away the personal property of another with the specific intent to [permanently deprive the [owner] [other person] of [his] [her] property] [DEPRIVE THE [OWNER] [OTHER PERSON] OF THE [MAIN] [MAJOR] VALUE OF [HIS] [HER] PROPERTY] is guilty of the crime of petty theft, [a misdemeanor], and if that person previously had been convicted of [petty theft] [(prior crime)] and had [served a term for such conviction in a penal institution] [been imprisoned for such conviction in a penal institution as a condition of probation], is guilty of the crime of petty theft with prior conviction in violation of Penal Code section 666.

1. A person committed a petty theft in that [he] [she] [stole] [took] [carried] [led] [drove away] the personal property of another person with the specific intent to [permanently deprive [the owner] [another person] of such property] [DEPRIVE THE [OWNER] [ANOTHER PERSON] OF THE [MAIN] [MAJOR] VALUE OF SUCH PROPERTY]; and

Points and Authorities

See FORECITE F 9.40p.