Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA700097, Stephen G. Saleson, Judge.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant of petty theft. In bifurcated proceedings, the trial court found that defendant had suffered a theft prior, thus causing defendant to stand convicted of petty theft with a theft prior. (Pen. Code, § 666.) Defendant was sentenced to prison for the midterm of 2 years. Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered the defendant an opportunity to file a personal supplemental brief, which he has not done.
After concluding our independent review of the record, we affirm the judgment while directing the trial court to amend the abstract of judgment to correct an error in it.
Facts
On February 13, 2007, defendant shoplifted items from a discount store.
Discussion
The record before us discloses no basis upon which to conclude that defendant’s express waiver of his right to a jury trial on the existence of a prior, which, he also admitted suffering while testifying at trial, was not voluntary, knowing and intelligent.
The prosecutor stating, during final argument, that he thought the store’s loss prevention employee was credible in his testimony and defendant was not did not constitute improper vouching. (People v. Bonilla (2007) 41 Cal.4th 313, 337 [prosecutor’s statement regarding the apparent credibility of witness not improper if based on evidence presented and inferences that may be drawn from it and not on matters outside the evidence presented].) Moreover, defendant waived the matter by failing to object and seek an admonition below. (People v. Demetrulias (2006) 39 Cal.4th 1, 30, 31.)
Based on defendant’s contradictory testimony at trial, the court below did not err in giving the jury Judicial Council of California Criminal Jury Instruction CALCRIM 362, the instruction concerning defendant’s false or misleading statements.
Finally, despite being impressed with the extensive and lengthy nature of defendant’s criminal record, the sentencing court imposed the midterm, which was a proper exercise of its discretion.
We have concluded an independent review of the record and find no arguable issues.
Disposition
The trial court is directed to amend the abstract of judgment to show that defendant was convicted of petty theft with a theft prior, pursuant to Penal Code section 666, not grand theft pursuant to Penal Code section 484, subdivision (a) as the abstract currently states. In all other respects, the judgment is affirmed.
We concur: KING, J., MILLER, J.