Opinion
E052174 Super.Ct.No. FSB048388
12-08-2011
THE PEOPLE, Plaintiff and Respondent, v. JEAN ANILE RUFFIN, Defendant and Appellant.
Lynne S. Coffin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.
Lynne S. Coffin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jean Anile Ruffin was convicted by a jury of one count of forgery and one count of petty theft with a prior, based on alleged theft by false pretenses. Defendant raises three contentions. At the least, she contends that she should benefit from a change in the law with respect to the petty theft with a prior conviction, which now requires three prior qualifying convictions rather than only one, to make the offense eligible for treatment as a felony. Defendant also raises further substantive attacks on the judgment: First, she contends that the trial court erred in treating the prior conviction allegation as an element of the petty theft with a prior offense; the court repeatedly informed the jury of the existence of the prior offense, even though defendant had stipulated to the prior conviction. Defendant urges that this error prejudiced the result as to both convicted counts. Second, defendant contends that the evidence was insufficient to support the corroboration element of theft by false pretenses, the basis of the petty theft with a prior conviction. We agree with defendant and reverse the judgment.
FACTS AND PROCEDURAL HISTORY
In 1999, Miguel Gutierrez filed for dissolution of his marriage to his then-wife, Bertha Gutierrez, now known as Bertha Campos. In 2002, Campos purchased a home with her boyfriend, Paul Varela. Campos and Varela met and hired defendant, a real estate agent, to handle the home purchase. Title was taken in Varela's name alone because Campos's divorce was not final. About two years later, in 2004, Varela and Campos wanted to refinance the property and put Campos's name on the deed. Campos therefore wanted to be sure that the divorce was completed and final and hired defendant in her capacity as a paralegal to complete the paperwork to finish the dissolution proceedings. Campos wanted "my name changed and to fix my financials with my ex-husband, to separate stuff." Campos testified that she paid defendant $200 to file the appropriate papers to finalize the divorce.
Campos kept asking defendant for the documents concerning her divorce, and eventually defendant brought her some papers, denominated a notice of entry of judgment and a judgment of dissolution, purporting to show that the dissolution of marriage was final. Campos testified that she took the papers to the Social Security office to file for a card in her new (restored) name. The Social Security office rejected Campos's documents, however, telling Campos that she needed a certified copy of the documents. The Social Security employees instructed her to return to the courthouse for a proper copy of the documents.
Campos took the documents back to the courthouse and spoke to a clerk at the window. Campos did not ask that her documents be certified or stamped; she indicated that she did not know what "certified" meant. According to Campos, the court clerk returned the papers to her, saying that Campos was still legally married. Eventually, Campos was able to hire another paralegal to finalize her divorce. The papers that defendant obtained for Campos were of no use to Campos in finalizing her divorce, and Campos did not get her money back from defendant.
When Campos spoke to the clerk at the superior court, the clerk informed her that there was no judgment of dissolution in the court's files or on the computer. The clerk notified a supervisor about the discrepancy between the court's records and the purported family law judgment that Campos had presented. The supervisor examined the papers that Campos had brought, had a copy made, and asked Campos where she had obtained the papers. The divergence between the court records and the documents Campos presented led to an investigation.
At trial, court employees pointed out a number of errors or discrepancies in the documents.
1) Outdated Filing Stamp. The purported notice of entry of judgment and judgment were file-stamped "FILED Central District, Superior/Municipal Courts, San Bernardino County." The date was "JUN 10 2004." However, the superior and municipal courts had been consolidated in 2000. All the pre-consolidation court stamps had been surrendered and destroyed, and replaced by other stamps. In 2004, no document would have been marked "Superior/Municipal Courts."
2) Clerk Did Not Work in Department on Date of Filing Stamp. The filed stamp incorporated both a date marking and a stamped facsimile signature of the deputy clerk (Tonya Sowers) making the filing. Sowers testified, however, that she had not worked in the family law division since 2001. A stamp similar in form (i.e., containing the "Superior/Municipal Courts" designation and Sowers's facsimile signature) was present on the original petition for dissolution filed by Miguel Gutierrez in 1999. Sowers testified that she did work in the family law division in 1999, and the stamp on the petition, including her signature facsimile, appeared genuine.
3) Date Not Incorporated into Filing Stamp on 2004 Documents. As noted, a genuine filing stamp containing the "Superior/Municipal Courts" designation and Sowers's facsimile signature appeared on the original 1999 dissolution petition. The date on the petition for dissolution, "MAR 17 1999" appeared to be incorporated as an integral part of the stamp, but the date on the filing stamp on the purported notice of entry of judgment and judgment did not look like it was incorporated into the stamp.
4) Stamped Clerk Signature Where a Written Signature Would Be Required. The purported notice of entry of judgment contained a signature line for a deputy clerk, as well as a clerk's certificate of mailing at the bottom of the page. In both places, the deputy's signature appears to be a reproduction of Sowers's facsimile signature. Sowers testified that she did not place her name on the document, and that the purported signatures were stamps, not signatures. Priscilla Sanchez, a supervisor, testified that the notice of entry of judgment and clerk's certificate would have been signed with an actual original signature, not a facsimile stamp. The record contains a copy of the proper notice of entry of judgment eventually entered in Campos's dissolution case. It contains original clerk signatures in both places that the purported notice of entry of judgment has stamped signatures.
5) Reversal of Party Names. The purported notice of entry of judgment and judgment named Campos as the petitioner and Miguel Gutierrez as the respondent. On the original petition filed in 1999, Gutierrez was the named petitioner and Campos the respondent. Campos testified at trial that, when she spoke to defendant about preparing divorce papers, she told defendant that she, Campos, wanted the divorce. All the information that defendant received, to prepare the papers, was provided by Campos.
6) Inconsistent Dates. The purported notice of entry of judgment contained two different dates. The file stamp date on the notice of entry of judgment, the date of the clerk's signature on the notice of entry of judgment, and the date on the clerk's certificate of mailing should all have been the same. On the purported notice of entry of judgment, the file stamp was June 10, 2004, but the clerk's facsimile signature was dated August 5, 2004, a date well after the date of filing. The clerk's certificate of mailing contained a handwritten date of June 10, 2004, and a stamped date of August 5, 2004, accompanied, as stated earlier, by the facsimile stamp rather than an original clerk's signature. The genuine notice of entry of judgment, later obtained in Campos's case, had the same date in all three places: filed, notice given by the clerk, and clerk's certificate of mailing all date-stamped August 23, 2005.
The purported notice of entry of judgment also failed to state any date of judgment. The purported judgment was stamped August 5, 2004, a date after the supposed filing of that judgment, and of the notice of entry of judgment, both of which bore a file stamping date of June 10, 2004.
The purported notice of entry of judgment also contained a mistake in listing the date of termination of marital status. The same August 5, 2004 appeared in that block, as had been stamped on the clerk's signature line and the clerk's certificate of mailing. Sanchez testified that August 5, 2004, a date after the supposed notice of entry of judgment, did not make sense as the status termination date.
The purported judgment itself, also contained date discrepancies. The purported judgment listed the date that jurisdiction had been acquired over the respondent (and naming Gutierrez rather than Campos as the respondent) was stated (handwritten) as May 13, 2004. The court's jurisdiction over Campos had been acquired in 1999, when Gutierrez had filed and served the original petition for dissolution.
7) Signature Stamp of Retired Bench Officer. The purported judgment bore a block stamp of "Bobby R. Vincent" as the bench officer entering the judgment. Sanchez testified that Commissioner Vincent had retired before that date, he was not assigned to the family law division, and there was "no way he would have been able to have signed that judgment."
Investigators contacted Gwendolyn Patrick, formerly Gwendolyn Walker, who had also hired defendant to prepare divorce papers. In April or May 2004, Patrick hired defendant as a paralegal to initiate a petition for dissolution of her marriage to Michael Walker. Patrick paid defendant $341.50, a portion of which was for the filing fee, to prepare, file and serve a petition for dissolution of the marriage. Thereafter, Patrick asked defendant repeatedly whether the papers had been served; defendant responded that she had several times attempted to serve the husband, unsuccessfully. A few months later, Patrick went to the family law court herself to check on the status of the case and found no record of anything on file. Patrick called defendant for an explanation, Defendant stated, "there has to be a mistake," and claimed that the paperwork must have been lost by the court. Patrick asked defendant for a refund, and defendant refunded to her $241.50, for the filing fee. Defendant stated that she could not refund all the money because defendant needed to be compensated for the filing she had done. Defendant never gave Patrick a copy of any papers defendant claimed she had filed. Patrick later filed a petition herself, in September 2004.
These incidents led to the filing in 2005 of a felony complaint against defendant, alleging a violation of Penal Code section 666, petty theft with a prior theft-related offense. The theory of the petty theft was theft by false pretenses, as to both Campos and Walker. (§§ 484, 666.) Because of the discrepancies in the notice of entry of judgment and the judgment in the Campos case, the complaint also alleged one count of forgery in violation of section 470, subdivision (c).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant denied any wrongdoing and refused a plea bargain. The defense theory of the case as to Patrick was that there was no theft or false pretense. Defendant had promised to prepare the dissolution petition, and had done so. As Patrick had testified, when Patrick found that there were no papers on file in the court, defendant claimed that she had prepared and filed the papers as agreed, but that court personnel must have lost the papers. Defendant did refund Patrick's filing fee when it was found that there was no document on file in the superior court.
As to Campos, defendant argued that there was also no false pretense. Defendant promised to prepare the documents for filing in Campos's dissolution action, had done so, and delivered the papers to Campos. Counsel argued in closing that circumstances showed that it was Campos, not defendant, who had falsified the papers; defendant had prepared the papers for Campos to file, but the papers were otherwise not marked or stamped with court stamps or signatures. Campos, not defendant, had access to a document (Miguel Gutierrez's original dissolution petition), which bore similar stamps and signatures to those on the document Campos claimed defendant had given her. The stamps on the falsified documents were of significantly poorer quality than those on Gutierrez's original petition for dissolution, suggesting a cut-and-paste job. The substantive provisions of the purported judgment, which differed significantly from the valid judgment procured a year later, were in Campos's favor and, thus, in Campos's interest, not defendant's. That is, the papers defendant was instructed to prepare indicated that the dissolution was uncontested (i.e., that Gutierrez would not appear), and contained provisions for child support and primary child custody, in favor of Campos. The actual judgment, entered in 2005, was contested, with notice to Gutierrez, and contained no formal child support order (reserving jurisdiction only). The person who had an incentive to create the provisions favoring Campos was Campos, not defendant.
These arguments also addressed the forgery charge. Defendant contended that Campos, not defendant, had procured the false stampings and signatures on the dissolution papers.
Defendant had been held to answer on all three charges after a preliminary hearing in August 2005. The case was continued for various reasons over the next five years. On the eve of trial in August 2010, the People filed an amended information, realleging the same three counts, but amending the names. Both the original information and the amended information alleged one prior theft-related conviction, a 1999 conviction of grand theft. (§ 487.)
At the beginning of the trial, the defense indicated some uncertainty as to whether the prior theft conviction allegation would be bifurcated. The court interposed, "How can it be bifurcated? It is part of the offense." Defense counsel stated that she wished to avoid spotlighting the prior theft conviction, but the court stated, "That's when it is a separate prior allegation. In this case, it's part of the offense." The court did state that it would allow defendant to stipulate to the prior, which would mean that the details of the conviction would not be presented, but that would not prevent the jury from hearing about the prior theft conviction. The court addressed defendant on the issue of the stipulation: "You understand, and I know that [counsel] talked to you, in this particular case, the prior is one of the elements of the offense. It's not a separate enhancing allegation. If you wish to admit the prior, basically counsel can . . . say that you have a prior conviction without discussing what it is or what it was or why it was, and there won't be any questions about it and there won't be any witnesses that testify. Otherwise, the People would be required to bring in witnesses to prove up the prior." On that basis and understanding, defendant admitted the prior theft conviction.
At the start of jury selection, the court summarized the charges, including mention of the prior theft allegation. Before closing arguments, defense counsel objected to the instructions on theft by false pretenses, and requested an instruction on theft instead. The court overruled the objection and denied the request to instruct on theft. During the closing instructions, the court read to the jury the stipulation to defendant's prior theft offense.
The jury returned its verdicts on August 24, 2010, finding defendant guilty of forgery (the Campos papers), guilty of theft from Campos, but not guilty of theft from Patrick (who had been partially refunded). The jury, on a separate form, found the prior conviction allegation true.
Defendant was sentenced in November 2010. The court suspended the imposition of sentence, and granted defendant formal probation for 36 months. One of the conditions of defendant's probation was to serve 210 days in county jail. The court did not explain its apportionment of the sentence between the two charges or give reasons for the sentence. Defendant filed a timely notice of appeal.
ANALYSIS
I. Contentions
Defendant raises three issues on appeal. She argues that the trial court erroneously characterized the prior theft allegation in the petty theft with a prior charge as a substantive element of the offense, and so instructed the jury. Defendant contends that informing the jury of the prior conviction affected the outcome of both offenses, as the court's instructions contained no limitation on the use of the prior conviction stipulation. Also with respect to the petty theft with a prior offense, the law was amended after trial but before sentencing to require proof of three prior theft-related convictions to elevate the offense to felony status. Defendant urges that this change in the law should apply to her case, and she should be sentenced as a misdemeanant if her conviction is not otherwise reversed. Finally, she argues that the evidence was insufficient to support a conviction of theft by false pretense.
The People address the statutory amendment issue, agreeing that the amended version of section 666 (requiring proof of three, not one, prior theft-related offenses) applies. While defendant argues that the application of the amended statute requires a reduction in her sentence, the People contend that the matter should be remanded to permit the prosecution to allege and prove additional convictions. The People do not address the remaining issues, urging that they are moot.
II. Before the Judgment Became Final, Section 666 Was Amended to
Require Proof of Three Prior Theft Offenses, Rather Than One,
to Elevate the Offense to a Felony
At the time of the alleged offenses, and at the time of trial, section 666 provided: "Every person who, having been convicted of petty theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison." That is, a petty theft conviction, normally a misdemeanor, could be treated as a felony if the accused had previously been convicted of one of the specified theft-related offenses.
Effective in urgency legislation in September 2010, the Legislature amended section 666 to provide that, "every person who, having been convicted three or more times of petty theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison." (See Assem. Bill No. 1844 (2009-2010 Reg. Sess.), italics added.) Thus, the amended version requires three qualifying prior convictions to be eligible for felony treatment.
In People v. Vinson (2011) 193 Cal.App.4th 1190, the Court of Appeal considered whether the amendment should be applied retroactively to cases not yet final at the time of the amendment. The general rule is that statutory amendments are not retroactive, unless expressly so stated by the Legislature. An exception exists, however, under In re Estrada (1965) 63 Cal.2d 740, 744-745, when an amendment has the effect of mitigating the punishment. When the amendment has such an ameliorative effect, then it is applied retroactively to all convictions not yet final on the effective date of the amendment.
Here, as in Vinson, the parties agree that defendant's conviction was not yet final at the effective date of the amendment to section 666. (See People v. Vinson, supra, 193 Cal.App.4th at p. 1194.) The legislative history of the amendment showed that it was part of a larger scheme to increase punishment for various sex offenses, but the amendment to section 666 was added to permit the Department of Corrections and Rehabilitation "to offset the new costs created by Assembly Bill 1844 by avoiding the costs of imprisonment associated with a particular class of offenders—those with fewer than three prior convictions for qualifying offenses. [Citation.]" (Vinson, at p. 1197.) Thus, although the punishment imposed for a violation of section 666 remained the same (felony-eligible), the requirements for making the offense felony-eligible were changed. "In other words, both versions of the statute describe a 'wobbler'—an offense that is punishable either as a misdemeanor or as a felony. To be eligible for felony sentencing under section 666 as amended, however, it is no longer enough that the defendant previously have been convicted of a single specified theft-related conviction. Instead, three or more such qualifying convictions are now required. This change to section 666's sentencing factor [citation] is akin to adding an element to a crime or an enhancement, and benefits a defendant by making it less likely that he or she will qualify for felony-level punishment. Accordingly, Estrada's reasoning applies. [Citation.]" (Vinson, at pp. 1197-1198.)
Defendant contends, and the People concede, that Vinson and Estrada apply, and defendant here should receive the benefit of the retroactive application of the statute. Defendant therefore argues that, should her conviction otherwise stand, she is entitled to have the sentence reduced to a misdemeanor. The People maintain, however, that the matter should be remanded to permit the People to allege and prove any additional qualifying theft-related prior convictions.
We are disinclined to follow this course of action. The probation report indicates that defendant's criminal record, before the instant case, consisted solely of the single alleged 1999 prior theft offense. The prosecution had ample time and means during the five years that the case languished before trial, and during the preparation of the appeal postconviction, to discover any other facts about defendant's criminal background that could bear on the case. The People do not provide any facts to suggest that any further pertinent prior conviction information exists.
We next turn to the remaining issues, to determine whether defendant's convictions are otherwise proper. We note that the People fail to address the remaining issues, deeming them "moot" because of the concession that the amended version of section 666 applies to defendant's case. The issues are not moot, however, because they go to the underlying validity of the convictions, whether the petty theft with a prior conviction is treated as a felony or as a misdemeanor.
III. There Was Insufficient Corroboration of a False Pretense to Support a Finding of
Theft by False Pretense as the Basis of a Petty Theft Conviction
A theft conviction on the theory of false pretenses requires proof that: (1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation. (People v. Wooten (1996) 44 Cal.App.4th 1834, 1842-1843.)
Where the accusation of theft by false pretense rests primarily on the testimony of a single witness, the making of the pretense (i.e., the false representation) must be corroborated. (People v. Randono (1973) 32 Cal.App.3d 164, 173 [Fourth Dist., Div Two], citing People v. Ashley (1954) 42 Cal.2d 246, 259.) Defendant urges here that there was insufficient evidence of corroboration of a false pretense or representation.
" 'When the sufficiency of the evidence is challenged on appeal, we apply the familiar substantial evidence rule. We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense.' [Citation.] 'An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.' [Citation.] 'Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury.' [Citation.]" (People v. Cuellar (2008) 165 Cal.App.4th 833, 838.)
Here, the People argued that the false pretense was in the nature of a "continuing act." Initially, defendant obtained money from Campos on the promise to prepare papers to finalize Campos's divorce. Defendant disputed the falsity of that representation, because she did actually prepare the documents. However, the ongoing or continuous false pretense theory was based on the notion that defendant had promised to prepare papers, which would be properly filed with the court, and would be genuine; that representation was false in an ongoing sense, because defendant had never filed the papers with the court. The documents she gave to Campos had been falsified, and the papers she provided were ineffective in achieving Campos's purposes in finalizing her divorce, obtaining her name change, or enabling her to put the title to the real property in her name. The defense view was that defendant had not promised to file any papers, but to prepare papers for Campos to file; Campos, and not defendant, had placed the false markings on the papers.
The primary evidence with respect to the false pretense conviction came from the alleged victim, Bertha Campos. Campos's testimony was therefore required to be corroborated, as to the making of the false pretense, in one of several ways. The false pretense could be corroborated (1) if the pretense was accompanied by a false writing or token, (2) if there was a note or memorandum of the pretense signed or handwritten by the accused, or (3) if there was testimony from at least two witnesses, or one witness plus other evidence supporting a conclusion that the defendant made the pretense. (§ 532, subd. (b); see CALCRIM No. 1804.) Here, the jury was only instructed on the third option, corroboration by either multiple witnesses, or by one witness along with other circumstances supporting the false pretense.
The court instructed the jury on the corroboration issue as follows:
"You may not find the defendant guilty of this crime unless the People have proved that testimony from two witnesses or testimony from a single witness along with other evidence supports the conclusion that the defendant made the pretense."
The purported corroboration by "at least two witnesses" could have rested only upon the testimony of Campos and Patrick. The court employees, Sowers and Sanchez, had no knowledge of any representations made by defendant, and could not attribute any of the discrepancies in the falsified documents to defendant. The jury, however, found defendant not guilty of the false pretense charge as to Patrick. The jury cannot be said to have credited Patrick's testimony as corroborative of any false pretense made by defendant.
The only means of corroboration that the jury could have found under the instructions was the corroboration of Campos's testimony by other evidence or other circumstances. The only such evidence or circumstance was the existence of the falsified documents. Although the evidence was undisputed that the documents had been tampered with or falsified by someone, the sole evidence to support the notion that defendant had falsified them was Campos's testimony that she had received the documents from defendant, already marked and stamped. "Corroborating evidence is sufficient if it tends to connect the defendant with the commission of a crime in such a way so as to reasonably satisfy the jury that the complaining witness is telling the truth; the corroboration is inadequate if it requires aid from the testimony of the witness to be corroborated in order to connect the defendant with the alleged offense." (People v. Fujita (1974) 43 Cal.App.3d 454, 470, italics added.) The corroboration here fails the test of adequacy: the corroborative effect was supported solely by the testimony of the same witness whose testimony required corroboration. The documents, although undeniably irregular, did not provide an independent source of corroboration of Campos's testimony to connect the false statement to defendant.
The only irregularity which was undisputedly attributable to defendant was the reversal of the names of the parties to Campos's dissolution action. However, such an irregularity is in the nature of a clerical error, and not normally fatal to the validity of a pleading or other court document. The other irregularities consisted of the falsified filing stamps, date stamps, clerk signature stamps and bench officer stamp. None of these items was attributed to defendant, except by Campos. Other evidence existed (the original dissolution petition filed by Miguel Gutierrez) which showed that Campos had access to a source for duplicating at least some of the stamps or markings on the falsified documents.
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A conviction for theft by false pretense requires corroboration, but none was present here. Accordingly, defendant's conviction on the charge of petty theft with a prior, which was premised upon petty theft by false pretense, cannot stand.
Although we conclude that defendant's conviction of petty theft with a prior must be reversed, that conclusion does not make consideration of defendant's remaining issue moot, as she argues that the court's instructional error with respect to the petty theft with a prior offense also prejudiced the jury's verdict on the forgery count. Accordingly, we address that issue next.
IV. The Prior Theft Conviction Was Not an Element of the Offense, and the Court Erred
in Placing the Matter Before the Jury
Defendant contends that the trial court erred in treating her prior theft conviction as an element of the petty theft with a prior offense. Her stipulation to that offense should have precluded the jury from learning of that offense. Instead, the court repeatedly mentioned the offense to the jury, erroneously instructed the jury that the prior conviction was an element of the offense, and provided a separate form upon which the jury was to determine the truth of the stipulated offense.
The trial court did err. As the California Supreme Court clearly held in People v. Bouzas (1991) 53 Cal.3d 467, "the prior conviction and incarceration requirement of section 666 is a sentencing factor for the trial court and not an 'element' of the section 666 'offense' that must be determined by a jury." (Id. at p. 480.) Therefore, once defendant had stipulated to the existence of the prior theft-related conviction, the matter should have been tried to the jury as a petty theft, without mention of the prior offense.
Here, the trial court expressly informed the jury at the outset of the case that the charges included two counts of "petty theft with a prior." After the parties rested, and before closing arguments, the court instructed the jury that defendant had stipulated to a prior conviction of grand theft in 1999 and served a county jail sentence on that charge. The court gave no limiting instruction, focusing or limiting the jury's use of that stipulated prior conviction, to the supposed prior conviction "element" of the offense of petty theft with a prior. Next, during the preargument instructions, the court again summarized the charges, including reference to "petty theft with a prior . . . in Count 2 and 3 . . . ." The court instructed the jury on specific counts that defendant was "charged in Count 2 and 3 with petty theft by false pretenses," and proceeded to describe the requirements for finding a theft by false pretense. The court followed up the detailed description of the elements of theft by false pretenses with another summary of the charges, including that defendant was "charged in Count 2 of the Information with the crime of petty theft with a prior," and that she was similarly "charged in Count 3 of the information with the crime of petty theft with a prior." As to the verdict forms, the court instructed that the jury could return verdicts finding defendant guilty "of the crime of petty theft with a prior as charged in Count 2," or not guilty as charged.
During closing arguments, the prosecutor used a computer slideshow presentation, highlighting the elements that needed to be proven as to each offense. As to count 2, the projected slide was entitled, "Petty Theft by False Pretense (with Prior)." The slide specifically listed as the fourth element: "4. Stipulation to prior conviction."
Although the court's instructions did not include any reference to a finding on the truth of the prior conviction, and no mention of such a finding as a possible verdict, nevertheless such a verdict form was actually submitted to the jury, which found the allegation of defendant's prior grand theft conviction to be true.
Because the prior conviction allegation was not an element of the underlying offense, plaintiff was entitled to stipulate to the enhancing allegation to prevent the jury from learning of it. (People v. Bouzas, supra, 53 Cal.3d at p. 474.) She did not testify at the trial, and so did not place her credibility in issue. (See People v. Fritz (2007) 153 Cal.App.4th 949, 952.) The evidence of the prior conviction was thus not relevant to impeach defendant as to the forgery charge, and the court never indicated that it had been admitted as relevant for any purpose other than as an "element" of the petty theft with a prior charge. Yet the court never gave any limiting instruction on the jury's use of the prior conviction allegation. The court did not instruct the jury that it could not use the prior conviction with respect to the forgery charge. It did not preclude the jury from considering the prior conviction as evidence of a propensity for dishonesty, a propensity to forge, or a propensity to steal. The provision of the separate verdict form in fact required the jurors to discuss the prior conviction, notwithstanding defendant's stipulation.
We agree with defendant's argument that the court's error was prejudicial. As an error of state law, the standard of prejudice is whether it is reasonably probable that the error affected the outcome of the case. (People v. Watson (1956) 46 Cal.2d 818, 836.) That reasonable probability exists under the circumstances of this case. Indeed, the error infected the trial from beginning to end, and was not limited to the petty theft with a prior charge. The prosecution's case was not strong as to either of the convicted charges. Although the evidence showed that the purported notice of entry of judgment and judgment had numerous irregularities suggesting falsification, there was no evidence as to who filed or attempted to file the documents. There was no corroboration of Campos's testimony laying the blame on defendant, so that conviction must now be reversed. It is reasonably probable that the error contributed to the verdict as to both the forgery and the petty theft with a prior charges, and the judgment must therefore be reversed in its entirety.
DISPOSITION
The judgment is reversed.
The conviction as to count 2, petty theft with a prior, is reversed for insufficiency of the evidence (failure of corroboration) and may not be retried. (See Burks v. United States (1978) 437 U.S. 1 [98 S.Ct. 2141, 57 L.Ed.2d 1].)
The conviction as to count 1 is also reversed because of the erroneous admission of defendant's prior conviction. The evidence of the prior conviction should not have been admitted in the first place and, in the second place, the court erred in failing to give a limiting instruction precluding its consideration as to the forgery count. The error was prejudicial as to count 1, requiring reversal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.