P. v. Mayo

Filed 5/26/06  P. v. Mayo CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of San Bernardino County.  John B. Gibson, Judge.  Affirmed.

            Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Melissa A. Mandel and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

            A jury found defendant guilty of commercial burglary (Pen. Code, § 459)^[1] (count 1) and petty theft with a prior (§ 666) (count 2).  The jury also found true that defendant had served a prior prison term within the meaning of section 667.5, subdivision (b).  Defendant was sentenced to a total term of three years in state prison as follows: two years for count 1, plus an additional one year for the prior prison term allegation; count 2 was stayed pursuant to section 654.  On appeal, defendant contends (1) the trial court abused its discretion when it refused to bifurcate the prior conviction allegations from the substantive offenses; (2) there was insufficient evidence to support the jury's verdict that he committed a commercial burglary; and (3) there was insufficient evidence to support the jury's finding that he had served a prior prison term.  We reject these contentions and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

            On March 9, 2005, Amelia Zappa was working as a general manager at the Flying J Travel Plaza in Barstow when she noted three DVD's and a book on a grocery shelf.  She turned her head and, when she looked back, noticed the items were gone.  Zappa saw defendant walking through the store with a bulge in the back of his pants.  Earlier, Zappa had seen defendant handling those items. 

            Zappa approached defendant and asked him to give the DVD's and the book back.  Defendant responded that he did not have anything.  After Zappa told defendant there was a bulge in the back of his pants, defendant handed Zappa the three DVD's and the book.  Subsequently, Zappa noticed two more DVD's hidden underneath defendant's shirt, making it bulge out.  Zappa asked defendant to return those items as well, and defendant reached under his shirt and handed them over. 

            Zappa asked defendant to accompany her to the office so she could serve him a no trespassing order, which was a notice not to enter the store again under threat of arrest for trespassing.  Zappa stated that she was not going have defendant arrested since he returned the items without any struggle.  As they started walking toward the office, defendant bolted and ran out of the store; he was apprehended outside. 

            The value of the items defendant had hidden under his clothes was about $70.  An officer was dispatched to the store.  The officer found no cash or other means of payment when he booked and searched defendant.

II

DISCUSSION

            A.        Motion to Bifurcate Prior Conviction Allegations

            Defendant contends the trial court erred when it refused to bifurcate the prior conviction allegations from the substantive offenses.  The People â€