Nguyen

Defendant was convicted of petty theft with a prior (Pen. Code, § 666), and allegations that he had suffered two prior serious or violent felony convictions within the meaning of Penal Code section 667, subdivisions (b) to (i) were found true. He was committed to state prison for an indeterminate term of 25 years to life. On appeal, he asserts that (1) CALJIC No. 2.90 is inadequate because it does not define “abiding conviction,” (2) the trial court prejudicially erred in giving CALJIC No. 17.42, (3) the trial court abused its discretion by refusing to reduce the conviction to a misdemeanor, (4) he must be sentenced under Penal Code section 666 rather than Penal Code section 667, subdivisions (b) to (i), (5) his prior convictions did not qualify for treatment under Penal Code section 667, subdivisions (b) to (i) because these convictions were suffered prior to the enactment of that statute, (6) Penal Code section 667, subdivisions (b) to (i) was not in effect at the time of his offense because this statute was not proper urgency legislation, (7) the evidence was insufficient to prove that one of his prior convictions was for a serious felony, (8) the restriction in Penal…

I concur in the majority opinion. I am not convinced, however, that People v. Olivas (1976) 17 Cal.3d 236 [ 131 Cal.Rptr. 55 , 551 P.2d 375 ] requires application of the strict scrutiny standard here solely on the basis that a criminal defendant is facing incarceration. (People v. Silva (1994) 27 Cal.App.4th 1160, 1167 [ 33 Cal.Rptr.2d 181 ].) I understand Olivas to establish only that persons convicted of the same crime and otherwise similarly situated should not be punished differently absent a compelling state interest. Equal protection does not require equal treatment of convicts with different criminal histories. (People v. Spears (1995) 40 Cal.App.4th 1683, 1687-1688 [ 48 Cal.Rptr.2d 634 ]; People v. Cooper (1996) 43 Cal.App.4th 815, 827-383 [ 51 Cal.Rptr.2d 106 ].) Strict scrutiny is not implicated simply because the Legislature has provided for the potential incarceration of future lawbreakers by defining a crime and distinguishing degrees of culpability. (People v. Mitchell (1994) 30 Cal.App.4th 783, 795-796 [ 36 Cal.Rptr.2d 150 ]; People v. Bell (1996) 45 Cal.App.4th 1030, 1049 [ 53 Cal.Rptr.2d 156 ]; People v. Davis (1979) 92 Cal.App.3d 250, 258 [ 154 Cal.Rptr. 817 ].)…

[Opinion certified for partial publication. [*] ]

OPINION

MIHARA, J.

Defendant was convicted of petty theft with a prior (Pen. Code, § 666), and allegations that he had suffered two prior serious or violent felony convictions within the meaning of Penal Code section 667, subdivisions (b) to (i) were found true. He was committed to state prison for an indeterminate term of 25 years to life. On appeal, he asserts that (1) CALJIC No. 2.90 is inadequate because it does not define "abiding conviction," (2) the trial court prejudicially erred in giving CALJIC No. 17.42, (3) the trial court abused its discretion by refusing to reduce the conviction to a misdemeanor, (4) he must be sentenced under Penal Code section 666 rather than Penal Code section 667, subdivisions (b) to (i), (5) his prior convictions did not qualify for treatment under Penal Code section 667, subdivisions (b) to (i) because these convictions were suffered prior to the enactment of that statute, (6) Penal Code section 667, subdivisions (b) to (i) was not in effect at the time of his offense because this statute was not proper urgency legislation, (7) the evidence was insufficient to prove that one of his prior…