Pham

Quy Van Pham was convicted by a jury of second degree burglary of a motor vehicle (Pen. Code, § 459), count I; second degree robbery of John Guevara (§ 212.5, subd. (b)), count II; petty theft from John Guevara with a prior theft conviction (§ 666), count III; second degree robbery of Steve Oravec, count IV; petty theft from Steve Gravee with a prior theft conviction, count V; and assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), count VI. The jury found that defendant suffered three prior prison terms for second degree burglary as alleged. (§ 667.5, subd. (b).) Defendant was sentenced to state prison for the upper term of five years on count II, together with a one-year enhancement for serving a prior prison term. The sentences imposed for counts I, IV, and VI were ordered to be served concurrently with the principal term. Defendant was also sentenced to the upper term of three years for each of the theft offenses (counts III and V), which sentences were stayed pursuant to section 654.

He appeals contending: (1) there was insufficient evidence to support the robbery convictions; (2) failure to instruct on the…