The People v. Guevara CA5

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 offenses, however, is a wobbler if the defendant served terms in penal institutions for each of those offenses or was incarcerated as a term of probation. It is punishable either

1Subsequent statutory references are to the Penal Code.

2. by up to a year in county jail or by 16 months, two years, or three years in county 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 impose the three-year term for count 3 when only two prior theft-related convictions were established. Further, Guevara was not asked to admit to incarceration for any of the priors, yet the statute requires proof of incarceration. The parties also agree that even the admissions Guevara made…