Error and/or relief
The defendant cannot be convicted of both the robbery and the petty theft it resulted in, and the conviction and sentence for petty theft, along with associated fines and fees, must be reversed.
First Holding:
A defendant cannot be convicted of both robbery and petty theft based on the same conduct because theft is a lesser necessarily included offense of robbery.
Authority:
People v. Ortega (1998) 19 Cal.4th 686, 699
Second Holding:
While section 654 prohibits multiple punishment, it is generally permissible to convict a defendant of multiple charges arising from a single act or course of conduct.
However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.
Authority:
PEN 654
PEN 954
People v. Ortega (1998) 19 Cal.4th 686, 692
People v. Montoya (2004) 33 Cal.4th 1031, 1034
People v. Sanders (2012) 55 Cal.4th 731, 736
Third Holding:
This is true even though the defendant first took items from the store and then took the same items from the loss prevention officer by force. The taking of the items from the loss prevention officer was the same as taking items from the store since the loss prevention officer was acting as an agent of the store.
Authority:
People v. Villa (2007) 157 Cal.App.4th 1429, 1434–1435
People v. Estes (1983) 147 Cal.App.3d 23, 29
Fourth Holding:
The People contend the defendant forfeited his right to raise this issue on appeal because he did not object to his separate convictions before the trial court. We consider the merits of the argument because a defendant may challenge an unauthorized sentence even if he or she failed to object below.
Authority:
People v. Hester (2000) 22 Cal.4th 290, 295
Fifth Holding:
Section 1465.8(a)(1) requires a court to impose a $40 court operations assessment for every conviction of a criminal offense. Similarly, Government Code section 70373(a)(1), requires a $30 conviction assessment for each misdemeanor or felony conviction. The court also imposed a fine of $41 under section 1202.5 along with a restitution fine of $600 and a $600 parole revocation restitution fine, which was suspended unless parole is revoked.
Because we reverse the conviction for petty theft, we remand the matter for the superior court to vacate any portion of the fines and fees imposed for petty theft.
Authority:
PEN 1202.5
PEN 1202.4
PEN 1465.8(a)(1)
GOV 70373