Lindsay

Though defendant was charged in count one with robbery (Pen. Code, §211), and count two with violating Vehicle Code section 10851 (auto theft), the jury returned a verdict of guilty of misdemeanor battery (§ 242) on count one and could not arrive at a verdict on count two, resulting in a mistrial as to count two.

One of several prior felonies used to impeach defendant was a conviction of a battery upon a police officer (§ 243, subd. (c)), which occurred in 1986.

Later, pursuant to a plea bargain, defendant pled guilty to violating Vehicle Code section 10851 (auto theft), a motion to strike all prior convic tions was granted, and the prosecution agreed not to seek consecutive terms. Defendant was sentenced to three years on count two and to one hundred-eighty days in the county jail on count one, the sentences to be served concurrently. He appeals.

Facts

Jerry Harness, the victim, testified that at approximately 4 p.m. on September 4, 1987, defendant came into the Maverick Bar in Modesto. He sat next to Harness, and eventually asked him to give him a ride to defendant’s motel room where he had medication. The victim declined.

Harness was in the Modesto area to handle…