Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JW135840-02)
THE COURT APPEAL from orders of the Superior Court of Kern County. Louie L. Vega, Judge. Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Peña, J. and DeSantos, J. --------
Minor A.A. contends on appeal (1) the juvenile court's finding that he committed grand theft from a person must be reversed because it is a lesser included offense of robbery, and (2) he is entitled to three more days of custody credits. The People concede, and we agree. Accordingly, we affirm in part and reverse in part, and remand this matter to the juvenile court to award three additional days of custody credits and prepare amended orders.
On May 6, 2018, minor and a group of other people approached the victim and "jumped" him. Minor and another person hit the victim's face, head, and back. Someone in the group took the victim's $800 cell phone from his waist.
On June 7, 2018, the juvenile court found that minor had committed second degree robbery (§ 212.5, subd. (c); count 1), grand theft from a person (§ 487, subd. (c); count 2), and misdemeanor battery (§ 243, subd. (a); count 4).
On August 2, 2018, the juvenile court committed minor to the Kern County Crossroads Facility and imposed a maximum term of confinement of five years on count 1, plus two months for a violation of probation on a prior petition. The court stayed the terms on counts 2 and 4.
I. Lesser Included Offense
The parties agree that counts 1 and 2 were based on the same conduct of taking the victim's cell phone, and that grand theft from the person is a lesser included offense of robbery: "Theft in any degree is a lesser included offense to robbery, since all of its elements are included in robbery. The difference is that robbery includes the added element of force or fear." (People v. Burns (2009) 172 Cal.App.4th 1251, 1256; accord, People v. Ortega (1998) 19 Cal.4th 686, 694, overruled on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.) Consequently, the parties agree the findings and orders on count 2 must be reversed. (See People v. Sanchez (2003) 113 Cal.App.4th 325, 333 [reaffirming the well-established rule that a defendant may not be convicted of both robbery and grand theft based upon the same conduct].)
II. Custody Credits
The parties also agree minor was entitled to three more days of predisposition custody credits.
The juvenile court's jurisdictional finding that minor committed grand theft from a person (Pen. Code, § 487, subd. (c); count 2) is reversed. The dispositional order is reversed and the matter remanded to the juvenile court. The court is directed to award minor three additional days of predisposition custody credits. The court is directed to prepare amended orders and forward certified copies to the appropriate entities. In all other respects, the juvenile court's findings and orders are affirmed.