Fritz

Michael Lee Fritz was convicted of charges stemming from two separate incidents of alleged shoplifting from a Kohl’s department store. Specifically, Fritz was found guilty of one count of conspiracy to commit second degree burglary (Pen. Code, § 182, subd. (a)(1)); one count of second degree burglary (Pen. Code, §§ 459-460, subd. (b)); and two counts of petty theft with a prior conviction (Pen. Code, §§ 666, 484, subd. (a), and 488). Fritz contends the judgment must be reversed because although his trial had been bifurcated—with the issue of his priors to be tried to the court, sitting without a jury—the court nonetheless erroneously allowed the prosecutor to introduce evidence before the jury establishing that Fritz had engaged in a prior incident of shoplifting.

We agree the court erred in admitting the evidence establishing Fritz’s prior shoplifting crime. Fritz did not testify at trial, and thus never placed his credibility in issue. Moreover, the evidence was not admissible to impeach Fritz’s out-of-court statement to police that he had never previously been involved in shoplifting, because it was the prosecution who offered that statement into evidence, and the…