The opinion of the court was delivered by: Nicholson , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Prior to trial, defendant William Fredrick Maultsby admitted a prior felony conviction for robbery in 1991 within the meaning of the "Three Strikes" law (strike prior) and admitted prior theft-related convictions, including the 1991 robbery, for purposes of Penal Code section 666.*fn1 A jury convicted defendant of petty theft (§ 484, subd. (a)). Sentenced to state prison, defendant appeals, contending his admission of the strike prior was obtained absent complete advisements (Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl); In re Yurko (1974) 10 Cal.3d 857 (Yurko).)
In the first opinion in this matter, this court did not reach the merits. Following People v. Fulton (2009) 179 Cal.App.4th 1230 (Fulton), this court concluded that defendant could not attack the validity of his admission because he failed to obtain a certificate of probable cause. (People v. Maultsby (Mar. 16, 2010, C060532) [nonpub. opn.].)
The California Supreme Court granted review and, disapproving Fulton, reversed, remanding for further proceedings. (People v. Maultsby (2012) 53 Cal.4th 296.) We now conclude that remand for retrial on the strike prior allegation is required.
On January 13, 2008, as defendant left a Wal-Mart store, he set off a theft detector and was detained by an asset protection employee. Defendant removed a package of nicotine gum from his jacket. At the employee's request, defendant stepped through the detector and again set it off. Defendant removed another package of nicotine gum from his jacket. The two packages of gum were the store's merchandise and worth $83.56. Defendant did not have a receipt.
An information charged defendant with petty theft with five prior theft-related convictions and alleged one of those priors as a strike prior as well. Prior to trial, defendant moved in limine to bifurcate the allegations of the strike prior and the prior theft-related convictions. Defense counsel argued that priors were not elements of the theft offense. The prosecutor had no objection to the bifurcation of the strike prior allegation. The court granted the request to bifurcate the strike prior allegation and asked, "Is he, at this point, waiving his right to a jury, should it get to that point or not?" Defense counsel requested a moment. The record reflects there was a "[d]iscussion off the record" but does not ...