Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM024979
BLEASE, Acting P. J.
A jury convicted defendant Michael John Navarrette of second degree commercial burglary (Pen. Code, § 459), petty theft (Pen. Code, § 484), and receiving stolen property (Pen. Code, § 496, subd. (a)). The court sustained allegations of two prior prison terms (Pen. Code, § 667.5, subd. (b)) and sentenced defendant to a stipulated term of five years and eight months in prison.
On appeal, defendant contends he was entitled to a unanimity instruction on the petty theft count and identifies an error in the abstract. We order a correction to the abstract and otherwise affirm the judgment.
BACKGROUND
Martha Sharpe is the loss prevention officer for the Chico Wal-Mart. On April 21, 2006, she was called over to the house wares department, where an empty stereo box and a stereo with a missing faceplate had been discovered. She learned that a total of two car stereos and an amplifier were missing from the store.
Sharpe went to the department where the missing stereos belonged, where she saw defendant and codefendant Monica Welch. The couple were looking at the stereos and picking up random ones. Defendant and Welch did not appear to be shopping, but instead looking behind the merchandise.
On April 28, 2006, Sharpe saw defendant and Welch enter the store again. Sharpe followed them, and saw defendant giving clothing to Welch, who was stuffing them into her purse. She could tell that the items were clothing, but Sharpe did not know if they belonged to Wal-Mart.
Feeling that she did not have enough information to detain them, Sharpe paged security to the front door in order to deter defendant and Welch from taking any items out of the store. Defendant went to the store McDonald’s while Welch went to the women’s restroom. The two then left the store without being stopped. Sharpe found a pair of blue shorts from Wal-Mart hanging on a hook inside a restroom stall door.
Defendant and Welch reentered the store about five to seven minutes later. Sharpe followed them to the menswear department, where she observed defendant take two pairs of shorts and hand them to Welch. One of the shorts was the same type as the blue pair Sharpe had just found in the restroom. Welch “walked behind one of the pants displays and ripped off one of the tags to one of the shorts and concealed the shorts in her purse.”
The two then went to McDonald’s and ate. As defendant and Welch left the store, Sharpe identified herself to Welch while her partner identified himself to defendant. Welch resisted, throwing a soda in Sharpe’s face, threatening to punch her, and trying to run away, but both were eventually taken to the loss prevention office. Two pairs of shorts, including a blue pair identical to the one found in the restroom, a pink camisole, and matching panties were found in Welch’s purse.
Sharpe called the police, who arrested defendant and Welch. Defendant denied any wrongdoing, but consented to a search of his car. Stereo equipment matching the serial numbers and UPC’s of the stereo equipment taken from the empty boxes were found in defendant’s car.
Welch, testifying for the defense, stated she promised defendant to buy some clothing for him when they went to the Chico Wal-Mart on April 28, 2006. Defendant picked out a pair of blue shorts and she put them in her purse. Welch got nervous and left the shorts in the restroom before leaving the store.
According to Welch, after leaving the store, she told defendant she had to get money for the shorts from the car. They went back in the store, and Welch removed the tags and put the shorts in her purse when defendant was not looking. She remembers taking a camisole, but does not remember taking any panties.
Welch pleaded guilty to receiving stolen property as a result of the incident. Welch loves defendant, is pregnant by him, and admitted telling the arresting officer she did not want to see defendant taken away.
DISCUSSION
I
Defendant contends that the jury should have been given a unanimity instruction on the petty theft count. Since several stolen items were found in Welch’s purse, defendant argues the jury could have convicted him on the basis of any one of the items, and thus a unanimity instruction was necessary. We reject the contention.
As a general rule, “when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ [Citation.]” (Ibid.; italics omitted.)
However, a unanimity instruction is not required “when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) It also is unnecessary, even when there are two criminal acts, where “‘there was no evidence . . . from which the jury could have found defendant was guilty of’” one act but not the other. (People v. Riel (2000) 22 Cal.4th 1153, 1199, quoting People v. Carrera (1989) 49 Cal.3d 291, 311-312.)
Consequently, this is a case where a unanimity instruction was not required. The defense was twofold: The prosecution did not present any security tapes and thus failed to meet its burden of proof, and that Welch, having promised to purchase clothing for defendant without the funds to do so, took all of the items without defendant’s knowledge or consent.
Because his defense did not differentiate between the stolen items found inside Welch’s purse, defendant was not entitled to a unanimity instruction on the petty theft count. Accordingly, we reject his contention.
II
Defendant and the Attorney General both note an error in the abstract. The trial court sentenced defendant to three years for the burglary, two years for the two prison term enhancements, and a consecutive eight months for receiving stolen property. The abstract lists defendant’s sentence as three years for the burglary, a consecutive two years for the petty theft count, and a consecutive eight months for receiving stolen property.
In a criminal case, the judgment is the sentence orally pronounced by the court. (People v. Thomas (1959) 52 Cal.2d 521, 529, fn. 3.) When the record is in conflict, the part of the record that is entitled to greater credence will prevail. (See People v. Smith (1983) 33 Cal.3d 596, 599.) Here, the transcript of the sentencing hearing more accurately reflects the court’s sentence than does the abstract of judgment.
Although the trial court did not mention a sentence for the petty theft count when pronouncing sentence, the facts of the case make clear that the sentence for petty theft would be stayed under Penal Code section 654. A stay was recommended in the probation report and was required by law. When a burglary is committed for the purpose of committing a theft once inside the building, the defendant may be convicted of both burglary and theft, but punishment for the theft offense must be stayed under Penal Code section 654. (See People v. Bernal (1994) 22 Cal.App.4th 1455, 1457-1458.)
Accordingly, we order the trial court to prepare a corrected abstract showing that defendant’s sentence for petty theft was stayed pursuant to Penal Code section 654 and to reflect the five-year, eight-month sentence as pronounced by the court at sentencing.
DISPOSITION
The judgment is affirmed. The trial court is ordered to prepare an amended abstract of judgment showing that the sentence for petty theft is stayed pursuant to Penal Code section 654 and defendant received two one-year enhancements for having served prior prison terms within the meaning of Penal Code section 667.5, subdivision (b) and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: RAYE, J., CANTIL-SAKAUYE, J.