Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 09NF3267 John Conley, Judge.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
A store security guard saw defendant Dung Hoang Duong shove a package of socks down his pants and enter a restroom stall where he crumpled some paper and flushed the toilet multiple times. Defendant then walked towards the cash registers, paid for a soda, and left without paying for the socks. The security guard detained defendant and recovered the socks from him.
Although charged with theft with a prior conviction (Pen. Code, § 666; all further statutory references are to this code), defendant waived his right to a jury trial on the prior conviction allegations, which were bifurcated. A jury convicted him of theft by larceny (§§ 484, subd. (a), 488), following which the trial court found true he had three prior theft-related convictions (§§ 459, 460, 666), a prior strike conviction (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and two prior prison terms. The court doubled the upper term of three years on the petty theft with a prior and struck the prison priors for sentencing purposes for a total sentence of six years in prison.
We appointed counsel to represent defendant on appeal. Counsel filed a brief summarizing the facts and proceedings below. She did not argue against defendant but advised the court she had not found any issues to present on his behalf. (People v. Wende (1979) 25 Cal.3d 436.) Pursuant to Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], counsel identified several possible, but not arguable, issues to aid us in our independent review of the record: (1) does substantial evidence support the verdict and the true findings on the priors; (2) did defendant voluntarily and intelligently waive his right to a jury trial on the prior allegations; (3) and did the court abuse its discretion in refusing to strike the prior strike conviction. Defendant was given 30 days to file written argument on his own behalf, which he did, raising issues discussed below.
Substantial evidence supports defendant’s conviction for theft by larceny and the court’s true findings on the allegations regarding defendant’s prior convictions. Theft by larceny occurs when a defendant takes and carries away another’s personal property with the intent to steal it. (People v. Davis (1998) 19 Cal.4th 301, 305.) These elements were established by the security guard’s testimony he witnessed defendant place a package of socks into his pants, enter a restroom, and then leave the store without paying for the socks.
As for defendant’s prior convictions, section 666 permits imposition of a felony sentence rather than jail for a petty theft, where the defendant had three or more prior theft-related convictions for which he or she went to prison. (§ 666, subd. (a); People v. Tardy (2003) 112 Cal.App.4th 783, 787.) The required convictions were established by a section 969b packet showing defendant served a three-year prison term for his 2005 convictions for commercial burglary and attempted grand theft, and certified guilty plea forms and docket reports of 2004 convictions for misdemeanor crimes for which he served 5 days and 30 days in custody, respectively.
To prove the prior strike allegation, the prosecutor introduced into evidence a certified record and a section 969b packet of defendant’s 1989 conviction for assault with a firearm for which he was sentenced to three years in prison. As defense counsel acknowledges, such a crime constitutes a strike. (§1192.7, subd. (c)(23); People v. Williams (1996) 50 Cal.App.4th 1405, 1412.)
For the two prior prison terms, the prosecutor relied on the 1989 strike conviction and the 2005 conviction for commercial burglary and attempted grand theft for which defendant served a three-year prison sentence. These two offenses satisfied section 667.5’s requirement of “proof that the defendant (1) was previously convicted of a felony, (2) was imprisoned as a result of that conviction, (3) completed that term of imprisonment, and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. [Citation.]” (People v. Elmore (1990) 225 Cal.App.3d 953, 957.)
The record also shows defendant voluntarily and intelligently waived his right to a jury trial on the prior convictions. “No particular language is necessary to waive a jury trial so long as the words employed disclose in their ordinary, common sense, fair meaning and context an intention to be tried by the court sitting without a jury. [Citations.]” (People v. Martin (1980) 111 Cal.App.3d 973, 982.) The transcript of the proceedings reflects defendant was asked if he understood that the jury would not hear about his prior convictions if he waived his right to a jury trial on them and that the judge would hold a court trial on the priors after the case was over if he was convicted. Defendant responded, “Yes, okay.” And when the court told him he had the right to have the jury determine the issue but that “very few people want that, ” defendant again said, “Yes.” The conversation, viewed in its “ordinary, common sense, fair meaning and context” supports the court’s determination defendant knowingly and validly waived his right to a jury trial on the prior allegations, despite the fact the court “did not make an express finding” to that effect, as defendant asserts.
Nor do we find any abuse of discretion in the court’s refusal to strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, the 1989 prior conviction, which occurred when defendant was 23 years old. A decision to strike a prior conviction remote in time is an abuse of discretion where the defendant has not led a crime-free existence after the prior conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) Although the prior strike conviction in this case was remote in time and the current crime involved only “a five dollar pair of... socks, ” defendant did not lead a crime-free existence after he committed the qualifying offense, notwithstanding the absence of further violence. For these reasons, we reject defendant’s request in his letter brief that we strike his prior strike conviction in the event we affirm his conviction.
In his letter brief, defendant also contends he received an unfair trial because there was no substantial evidence to support his conviction other than hearsay. He claims there was no videotape of him stealing and he had one pair of socks and the receipt for them in his pocket, but that the security guard threw the receipt away and lied stating defendant had five pairs of socks in his pocket. The jury resolved these factual issues against defendant and we cannot reweigh factual or credibility determinations on appeal. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.
WE CONCUR: BEDSWORTH, J., ARONSON, J.