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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Julio C. DUARTE, Defendant and Appellant.

No. B105406.

Decided: July 15, 1997

William M. Duncan, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Sharon Wooden Richard and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.

Penal Code section 666 1 elevates a misdemeanor petit theft to a felony if the perpetrator has suffered a prior theft-related conviction and served time therefor.   Defendant, with two such prior convictions, went into a department store and, without even bothering to look as though he were shopping, loaded arm-loads of clothing and an expensive stereo into a shopping cart and walked out without paying.   The jury found defendant guilty of the theft.   Defendant stipulated to the two prior convictions.   The trial court sent him to prison for three years.  (I) In the published portion of this decision, we find that a defendant admitting or stipulating to a prior conviction as to section 666 must be advised of the rights he is waiving and the consequences of his waiver.   In the unpublished portion, we reject defendant's claims that (II) the trial court erred in failing to instruct the jury as to voluntary intoxication, (III) the reasonable doubt instruction is defective, and (IV) the prosecutor committed misconduct.   We remand for a new trial as to the two prior conviction allegations.



After jury selection, but before testimony began, defendant stipulated to the truth of the two charged prior convictions, grand theft and burglary.   No waivers were taken.   Relying on People v. Witcher (1995) 41 Cal.App.4th 223, 48 Cal.Rptr.2d 421, the trial court merely accepted defense counsel's statement that defendant was stipulating to the truth of the matters.   The question is whether a defendant charged under section 666 who stipulates to a prior conviction, which has the effect of elevating a petit theft to a felony, must be given the Boykin/Tahl admonitions.  (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274;  In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.)

Treating the matter as an admission (as opposed to a stipulation), People v. Shippey (1985) 168 Cal.App.3d 879, 214 Cal.Rptr. 553, criticized on other grounds in People v. Ray (1990) 220 Cal.App.3d 943, 947, 269 Cal.Rptr. 682, held in an identical case that with reference to a section 666 charge, a defendant admitting the prior conviction must be advised of his constitutional rights and the consequences of the admission.   The court relied on In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, which required “before a court accepts an accused's admission that he has suffered prior felony convictions, express and specific admonitions as to the constitutional rights waived by an admission.”  (Id. at p. 863, 112 Cal.Rptr. 513, 519 P.2d 561.) 2  The Yurko court went on to impose additional requirements, including that “an accused, prior to the time the court accepts his admission of an allegation of a prior criminal conviction or convictions, is entitled to be advised ․ of the precise increase in the term or terms which might be imposed, if any, in the accused's case pursuant to [certain] section[s] ․ or other applicable statutes (see, e.g., [§ ]666 ․ )[.]” (Id. at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561.)

Shippey speaks for itself.   The only way we can read Yurko is that it requires a full set of admonitions before a defendant admits any prior conviction, including one pursuant to section 666.   The question becomes whether the Supreme Court's decision in People v. Bouzas (1991) 53 Cal.3d 467, 279 Cal.Rptr. 847, 807 P.2d 1076, again dealing with section 666, effected any change in this proposition.  Bouzas made no mention of Yurko or Shippey.

In Bouzas, the Supreme Court “granted review to resolve a split of authority in the Courts of Appeal concerning whether a defendant charged under ․ section 666 ․ may stipulate to a prior felony conviction allegation and thus preclude the jury from learning of that conviction.”   (People v. Bouzas, supra, 53 Cal.3d at p. 469, 279 Cal.Rptr. 847, 807 P.2d 1076, fn. omitted.)   The court concluded a defendant may so stipulate, so long as the prior conviction is not an element of the current offense.  “ ‘[I]f the former conviction is an element of the offense for which the defendant is being tried, as in a prosecution under section 12021 ․, which makes it a felony for an exconvict to be in possession of a firearm, the prior conviction, as well as the possession of the firearm, must be proved and determined by the court or jury․’ ”  (Id. at p. 472, 279 Cal.Rptr. 847, 807 P.2d 1076.)

The court went on to hold “that 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’․”  (People v. Bouzas, supra, 53 Cal.3d at p. 480, 279 Cal.Rptr. 847, 807 P.2d 1076.)

People v. Witcher, supra, 41 Cal.App.4th 223, 48 Cal.Rptr.2d 421, concluded that if a defendant charged with violating section 666 stipulates to the prior conviction, he need not be given the admonitions required for an admission.  (“[W]e are not convinced that Bouzas or any other national or state authority requires that a stipulation for section 666 purposes demands the full panoply of constitutional admonitions required to properly admit charged prior convictions.”  (Id. at p. 234, 48 Cal.Rptr.2d 421.))   Witcher made no mention of Shippey.

To sum up:  Yurko holds broadly that one cannot properly admit a prior conviction without being advised of the rights abandoned by the action and the consequences thereof.   Although not specifically dealing with section 666, it gives the section as an example of another “applicable statute[ ].”  (In re Yurko, supra, 10 Cal.3d at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561.)  Shippey, relying on Yurko, and treating the matter as an admission, flatly holds that a full set of admonitions is required in a section 666 case when the accused admits a prior conviction.  Bouzas does not discuss the issue but merely holds that a section 666 defendant can keep the prior conviction from the jury by “stipulating” to it.   Based on Bouzas' characterization as a stipulation, Witcher, making no mention of Shippey, effectively overrules it (and in effect purports to do the same to Yurko ) by holding that the admonitions need not be given.

We must disagree with Witcher.   As we read Bouzas, it did not purport to overrule Yurko on the point.   It merely gave a defendant the opportunity to keep the jury ignorant of his prior record.   If Bouzas meant to hold that once the action is characterized as a stipulation instead of an admission, an advisement of rights and consequences is no longer needed, it could easily have said so.   We do not perceive in Bouzas a sub silentio partial overruling of Yurko.

We are thus left with the Supreme Court's holding in Yurko that a prior conviction cannot be admitted without advisement of rights and consequences.   In its discussion on advisement of rights, Yurko made no exception for any type of prior conviction under any particular type of circumstance or charge.   In its further discussion on the additional requirement of advisement of consequences, Yurko made specific reference to section 666.   Only the Supreme Court can declare that Yurko is no longer controlling on the point.   Until it does so, we must conclude that defendant was entitled to the admonitions before “admitting” or “stipulating to” the prior convictions.

We can sympathize with Witcher 's rationale for its holding.   The defendant was given the advantage of keeping his record from the jury.   He acquired the advantage by entering into an agreement to stipulate to the prior convictions.   He then turned around and complained that he had not been properly advised.   As the court stated, he had “received the benefit of his bargain[ ]” and should not now be heard to complain.  (People v. Witcher, supra, 41 Cal.App.4th at p. 234, 48 Cal.Rptr.2d 421.)   We too find it irksome that a defendant can have his cake and eat it, too.   And we find nothing repugnant about allowing counsel to stipulate away such an issue without an advisement of rights and consequences.   We hold merely that Yurko requires otherwise.   As a consequence, we find it of no moment whether the alleged prior convictions are, as argued by respondent, “neither elements of the substantive current offense nor ․ enhancements,” but rather facts justifying enhanced punishment.   Nor do we find it necessary to enter into the debate (as did Witcher ) about whether the prior convictions have penal consequences (in which case advisements are necessary) or not (in which case a stipulation without admonitions is acceptable).   Were we writing on an empty slate, we might find these distinctions significant.   But however one wants to classify the allegations, Yurko requires the admonitions.

We reverse the “true” findings on the two prior convictions and remand for trial on those allegations.   As we reject the remainder of defendant's allegations, the petit theft conviction stands.



The judgment of conviction of petit theft is affirmed.   The judgment is reversed as to the two prior convictions.   The matter is remanded for a new trial as to the allegations of prior convictions.


1.   All further statutory references are to the Penal Code.

2.   Yurko was not a section 666 case, but rather dealt with section 644, the old “habitual offender” statute, no longer extant.

FOOTNOTE.   See footnote *, ante.

ORTEGA, Acting Presiding Justice.


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