Section 1850 | CALCRIM (Jury Instructions)

There is no crime of attempted petty theft with a prior conviction. None of the
elements of Penal Code section 666 may be attempted. (People v. Bean (1989) 213
Cal.App.3d 639, 642, fn. 4 [261 Cal.Rptr. 784].)
RELATED ISSUES
Jury Findings on Prior Convictions
The jury must determine the truth of the prior conviction unless jury trial is waived
or the defendant admits to the prior conviction. If more than one prior conviction is
charged, the jury must make a separate finding on each charged prior. (Pen. Code,
§ 1158; People v. Barre (1992) 11 Cal.App.4th 961, 965–966 [14 Cal.Rptr.2d 307].)
Judicial Notice of Prior Conviction
It is error for a trial court to take judicial notice of a defendant’s alleged prior
conviction when a reasonable juror could only understand the notice to mean that
the court conclusively determined the prior-conviction allegation to be true. (People
v. Barre (1992) 11 Cal.App.4th 961, 965–966 [14 Cal.Rptr.2d 307].)
Defense Stipulation to Prior Convictions
The prior conviction and incarceration requirement of Penal Code section 666 is a
sentencing factor for the trial court and not an element of a section 666 offense.
(People v. Bouzas (1991) 53 Cal.3d 467, 478–480 [279 Cal.Rptr. 847, 807 P.2d
1076]; People v. Stevens (1996) 48 Cal.App.4th 982, 987 [56 Cal.Rptr.2d 13].) Thus,
the defendant may stipulate to the convictions. (People v. Bouzas, supra, 53 Cal.3d
at pp. 478–480; People v. Stevens, supra, 48 Cal.App.4th at p. 987; People v.
Weathington (1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].)
If the defendant stipulates, the prior convictions should not be disclosed to the jury
unless the court admits them as otherwise relevant. (See Pen. Code, §§ 1025, 1093;
People v. Bouzas, supra, 53 Cal.3d at pp. 471–472, 480; People v. Hall (1998) 67
Cal.App.4th 128, 135 [79 Cal. Rptr. 2d 690].)
Motion for Bifurcated Trial
Either the defendant or the prosecution may move for a bifurcated trial. (People v.
Calderon (1994) 9 Cal.4th 69, 77–78 [36 Cal.Rptr.2d 333, 885 P.2d 83]; People v.
Cline (1998) 60 Cal.App.4th 1327, 1334–1336 [71 Cal.Rptr.2d 41]; People v.
Weathington, supra, 231 Cal.App.3d at p. 90.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 9.
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 417.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[3] (Matthew Bender).
1851–1859.
Reserved for Future Use
THEFT AND EXTORTION
CALCRIM No. 1850
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