P. v. Phylow

Filed 8/30/06 P. v. Phylow 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Riverside County. Robert J. McIntyre, Judge. Affirmed in part; reversed in part.

Appellate Defenders, Inc. and Beatrice C. Tillman, 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, Peter Quon, Jr., Supervising Deputy Attorney General, and Pat Zaharopoulos, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant of grand theft (Pen. Code, § 487, subd. (c))^[1] from an elderly victim (§ 667.9, subd. (a)),^[2] and petty theft with a theft prior (§ 666). In bifurcated proceedings, he admitted having suffered two prior convictions for which he served prison terms (§ 667.5, subd. (b)) and two strike priors (§ 667, subds. (c) & (e)(2)(A)). He was sentenced to 25 years to life. He appeals, claiming the trial court erroneously admitted evidence of prior crimes and he should not have been convicted of both offenses. We reject his first contention and affirm his conviction for grand theft from an elderly victim. The parties agree that defendant is correct as to his second contention; therefore, we will reverse the conviction for petty theft with a theft prior.

Facts

The facts pertaining to this case will be discussed in conjunction with the issue.

Issues and Discussion

1. Admission of Evidence

Before trial began, the People moved orally to be allowed to introduce evidence of two prior offenses by defendant. The People represented to the trial court that the first incident occurred on September 15, 1998, in Long Beach, when defendant approached the driver of a tow truck, who had come to the assistance of an elderly female motorist who had a flat tire. Defendant asked the driver if the latter could tow defendant's car, which was parked on the same street some distance away. Defendant then walked up to the victim and stood to the right of her, without saying anything to her. After a minute, he reached over, grabbed her purse, which was on her left arm, and ran down the street. Soon after, the driver saw defendant driving a green car up the street.

The second incident occurred later the same day, when the wheelchair-bound second victim and her caregiver were on the street on their way home from a grocery store. Defendant, driving a green car, pulled up next to the victim and asked the two where a particular house was on the street. As they pointed it out to him, he got out of his car, ran up to this victim, grabbed her purse out of her lap and ran back to his car, driving off in it.

The prosecutor represented that in the instant case, the elderly female victim and her husband were sitting at a Moreno Valley bus stop. Defendant walked up to them from behind (he had parked his vehicle in the parking lot of a fast-food restaurant) and began speaking to them in English, showing them a piece of paper. They spoke only Spanish, but they heard him use the word, â€