California Criminal Jury Instructions (CALCRIM) (2017)

1850. Petty Theft With Prior Conviction

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D. PETTY THEFT WITH A PRIOR
1850.Petty Theft With Prior Conviction (Pen. Code, § 666)
If you find the defendant guilty of petty theft, you must then decide
whether the People have proved the additional allegation that the
defendant has been convicted of a theft offense before and served a
term in a penal institution as a result of that conviction. It has already
been determined that the defendant is the person named in exhibits
<insert numbers or descriptions of exhibits>. You must
decide whether the evidence proves that the defendant was previously
convicted of the alleged crime[s].
To prove this allegation, the People must prove that:
1. The defendant was previously convicted of a theft offense;
AND
2. The defendant served a term in a penal institution for that
conviction.
The People allege that the defendant was previously convicted of:
[1.] A violation of <insert code section violated>, on
<insert date of conviction>, in the <insert
name of court>, in Case Number <insert docket or case
number>(;/.)
[AND <Repeat for each prior conviction alleged>.]
[<insert name of penal institution> is a penal institution.]
[A penal institution includes [a] (city jail/county jail/state prison/any
facility, camp, hospital, or institution operated to confine, treat, employ,
train, and discipline persons in the legal custody of the Department of
Corrections/federal prison/ <specify other institution>).]
[Consider the evidence presented on this allegation only when deciding
whether the defendant was previously convicted of the crime[s] alleged
[or for the limited purpose of <insert other permitted
purpose, e.g., assessing credibility of the defendant>]. Do not consider this
evidence for any other purpose.]
[You must consider each alleged conviction separately.] The People have
the burden of proving this allegation beyond a reasonable doubt. If the
People have not met this burden, you must find that the allegation has
not been proved.
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New January 2006; Revised August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on proof of the alleged prior
conviction. (See Pen. Code, § 1025 [on defendant’s denial, jury must decide issue
of prior convictions]; People v. Barre (1992) 11 Cal.App.4th 961, 965 [14
Cal.Rptr.2d 307].)
The prior conviction and incarceration requirement of Penal Code section 666 is a
sentencing factor for the trial court and not an element of a section 666 offense.
(People v. Bouzas (1991) 53 Cal.3d 467, 478–480 [279 Cal.Rptr. 847, 807 P.2d
1076]; People v. Stevens (1996) 48 Cal.App.4th 982, 987 [56 Cal.Rptr.2d 13].)
Thus, the defendant may stipulate to the convictions. (People v. Bouzas,supra, 53
Cal.3d at pp. 478–480; People v. Stevens, supra, 48 Cal.App.4th at p. 987; People
v. Weathington (1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].) In addition,
either the defendant or the prosecution may move for a bifurcated trial. (People v.
Calderon (1994) 9 Cal.4th 69, 77–78 [36 Cal.Rptr.2d 333, 885 P.2d 83]; People v.
Cline (1998) 60 Cal.App.4th 1327, 1334–1336 [71 Cal.Rptr.2d 41].)
Give this instruction only if the defendant does not stipulate and the court does not
grant a bifurcated trial.
If the defendant stipulates to the truth of the convictions, the prior convictions
should not be disclosed to the jury unless the court admits them as otherwise
relevant. (Pen. Code, §§ 1025, 1093; see People v. Bouzas, supra, 53 Cal.3d at pp.
471–472, 480.)
To be convicted of a violation of Penal Code section 666, defendant must have
been previously convicted of a crime listed in Penal Code section 667(e)(2)(c), or
previously convicted under Penal Code section 368(d) or (e); or be required to
register under the Sex Offender Registration Act. If applicable, give CALCRIM No.
3100, Prior Conviction: NonBifurcated Trial.
If the court grants a bifurcated trial, on either of the offenses described in the
paragraph above or a qualifying prior theft conviction, give CALCRIM No. 3101,
Prior Conviction: Bifurcated Trial.
AUTHORITY
• Enhancement Pen. Code, § 666; People v. Bruno (1987) 191 Cal.App.3d 1102,
1105 [237 Cal.Rptr. 31]; People v. Bean (1989) 213 Cal.App.3d 639, 642 [261
Cal.Rptr. 784].
• Convictions From Other States Pen. Code, § 668; People v. Perry (1962) 204
Cal.App.2d 201, 204 [22 Cal.Rptr. 54].
• Prior Incarceration Requirement People v. James (1957) 155 Cal.App.2d 604,
612 [318 P.2d 175] [service of partial term is sufficient]; People v. Valenzuela
(1981) 116 Cal.App.3d 798, 803 [172 Cal.Rptr. 284] [custody resulting from
credit for time served is sufficient]; but see People v. Cortez (1994) 24
CALCRIM No. 1850 THEFT AND EXTORTION
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Cal.App.4th 510, 513–514 [29 Cal.Rptr.2d 445] [participation in work release
program alone is insufficient].
• Penal Institution Defined Ex parte Wolfson (1947) 30 Cal.2d 20, 26 [180 P.2d
326] [includes county jail]; People v. Valenzuela (1981) 116 Cal.App.3d 798,
803, 804, 807–808 [172 Cal.Rptr. 284] [includes California Rehabilitation
Center]; see Pen. Code, §§ 667.5(h) [defining state prison or federal penal
institution for purposes of prior prison term enhancement], 969b [prima facie
evidence of prior conviction and term served in any state or federal penitentiary,
reformatory, or county or city jail], 6081, 6082 [prison defined]; Welf. & Inst.
Code, § 851 [excludes juvenile hall].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 9.
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 417.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143,
Crimes Against Property, § 143.01[3] (Matthew Bender).
LESSER INCLUDED OFFENSES
If the defendant is charged with felony petty theft based on a prior conviction, then
the misdemeanor offense is a lesser included offense. The court must provide the
jury with a verdict form on which the jury will indicate if the prior conviction has
been proved. If the jury finds that the prior conviction has not been proved, then
the offense should be set at a misdemeanor.
There is no crime of attempted petty theft with a prior conviction. None of the
elements of Penal Code section 666 may be attempted. (People v. Bean (1989) 213
Cal.App.3d 639, 642, fn. 4 [261 Cal.Rptr. 784].)
RELATED ISSUES
Jury Findings on Prior Convictions
The jury must determine the truth of the prior conviction unless jury trial is waived
or the defendant admits to the prior conviction. If more than one prior conviction is
charged, the jury must make a separate finding on each charged prior. (Pen. Code,
§ 1158; People v. Barre (1992) 11 Cal.App.4th 961, 965–966 [14 Cal.Rptr.2d 307].)
Judicial Notice of Prior Conviction
It is error for a trial court to take judicial notice of a defendant’s alleged prior
conviction when a reasonable juror could only understand the notice to mean that
the court conclusively determined the prior-conviction allegation to be true. (People
v. Barre (1992) 11 Cal.App.4th 961, 965–966 [14 Cal.Rptr.2d 307].)
1851–1859. Reserved for Future Use
THEFT AND EXTORTION CALCRIM No. 1850
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