(Super. Ct. No. CR102464)
The opinion of the court was delivered by: Raye , P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Michael Allen Caddick stole $30.24 worth of Chinese food from a grocery store deli. A jury convicted him of conspiracy to commit burglary (Penal Code, § 182, subd. (a)(1)),*fn1 second degree burglary (§ 459), and petty theft with a prior conviction (§§ 484, subd. (a), 490.5, subd. (a), 666).*fn2 The court found true six allegations that defendant had served six prior prison terms for six separate felony convictions within the meaning of section 667.5, subdivision (b). Defendant was sentenced to a total prison term of seven years four months, comprised of 16 months for the burglary conviction and one year for each of the six enhancements.
On appeal, defendant contends the prosecutor committed prejudicial error when he improperly commented on defendant's failure to testify (Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106] (Griffin)), there was insufficient evidence to support one of the six prior prison term enhancements (§ 667.5, subd. (b)), and the trial court misunderstood the scope of its discretion to strike some or all of the prior prison term enhancements (§ 1385). Defendant's challenge to the prior prison term enhancement has merit. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because they are largely undisputed, we provide only a brief recitation of the facts underlying defendant's conviction.
On an early afternoon in late January 2010 defendant, an adult female, and two teenagers entered a Nugget Market grocery store and went directly to the deli area. Surveillance cameras captured footage of defendant and the female waiting to order. While defendant was in a nearby bathroom, the female received a total of three packages and placed them in the child seat of a shopping cart. Defendant later returned to the deli and the two walked toward the check stands.
Surveillance footage showed, and a loss prevention officer testified, that the couple never entered a check stand and never paid for the food. Rather, with the defendant standing "[r]ight next to her," the female pulled two white, plastic Nugget grocery bags from her purse and filled one with the Chinese food. Defendant grabbed the second bag.
After a while, the female is seen leaving the store with the bagged food in hand. The loss prevention officer who observed the entire scenario testified that defendant walked out behind the female without much delay, if any. Defendant was apprehended while trying to leave the premises. The female seen in the video was never located. A Nugget plastic bag was recovered from defendant's pocket. The value of the food taken was $30.24.
At the sentencing hearing, defendant sought a reduction of his felony convictions to misdemeanors (§ 17, subd. (b)) or, in the alternative, the striking of some or all of his prison priors (§ ...