People v. Elam CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD304081
- Trial judge
- Rachel Cano
- Outcome
- reversed in part — Affirmed in part, reversed in part with directions.
- Area
- criminal
- Panel
- Joan K. Irion (author), Michele M. Castillo, Julia C. Kelety
Analysis
The trial court convicted the defendant of both robbery and petty theft, staying punishment for the petty theft under section 654 but imposing fines and assessments for both counts. The Court of Appeal reversed the petty theft conviction as a necessarily included offense of robbery and directed the trial court to vacate the associated fines and fees.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for petty theft (count 1) alongside robbery (count 2)“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.” | de novo | error | agree with court The court correctly applied the rule that a defendant cannot be convicted of both a greater offense and a necessarily included lesser offense arising from the same course of conduct. Petty theft is a lesser included offense of robbery, and the evidence supported the robbery conviction, making the petty theft conviction unauthorized. |
Imposition of fines and assessments for the petty theft conviction“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.” | de novo | error | agree with court Fines and assessments are tied to specific convictions. Since the petty theft conviction was reversed as unauthorized, the associated fines and assessments must be vacated to ensure the sentence is lawful. |
Authorities
- relied: People v. Ortega (1998) 19 Cal.4th 686 — Theft is a lesser necessarily included offense of robbery.
- relied: People v. Montoya (2004) 33 Cal.4th 1031 — A judicially created exception prohibits multiple convictions based on necessarily included offenses.
- relied: People v. Sanders (2012) 55 Cal.4th 731 — 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, the conviction of the lesser offense must be reversed.
- relied: People v. Villa (2007) 157 Cal.App.4th 1429 — Taking items from a loss prevention officer is the same as taking items from the store if the officer is acting as an agent of the store.
- relied: People v. Estes (1983) 147 Cal.App.3d 23 — A loss prevention officer is an agent of the store for purposes of theft and robbery.
- relied: People v. Hester (2000) 22 Cal.4th 290 — A defendant may challenge an unauthorized sentence even if he or she failed to object below.
The appellate opinion: sound — The opinion is sound because it correctly identifies the legal error of dual convictions for a greater and necessarily included lesser offense and applies the appropriate standard of review. It also correctly addresses the forfeiture argument by citing authority allowing review of unauthorized sentences.
How this analysis was made · dispute it
unusual dispositionA San Diego jury convicted Elam of robbery and, as a lesser included offense of charged grand theft, petty theft arising from a single shoplifting incident in which he scuffled with a loss prevention officer; the trial court sentenced him to 11 years on the robbery, stayed the petty theft under section 654, and imposed per-conviction assessments of $80 and $60. The Court of Appeal, with the People's concession, reversed the petty theft conviction because theft is a necessarily included offense of robbery, remanded for the superior court to vacate any fines and fees attributable to that count and amend the abstract, and otherwise affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Entry of judgment of conviction on both robbery (count 2) and petty theft (count 1) arising from the same course of conduct, with the petty theft punishment stayed under section 654 rather than the conviction being vacated.“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.” | de novo | error (law misapplied) | agree with court Whether one offense is necessarily included in another and whether dual convictions may stand is a pure question of law; the opinion does not state a standard but treats it as such. Theft is a lesser included offense of robbery (Ortega), and the judicially created rule against multiple convictions for necessarily included offenses (Montoya, Sanders) requires reversal of the lesser conviction, not merely a section 654 stay. Villa and Estes answer the only plausible counterargument—that the taking from the store and the forcible retention from the loss prevention officer were separate takings—by treating the officer as the store's agent in a single continuing robbery. The court correctly applied these authorities. |
Implicit rejection of the People's forfeiture argument based on Elam's failure to object below to the dual convictions.“We consider the merits of the argument because a defendant may challenge an unauthorized sentence even if he or she failed to object below.” | de novo | correct | agree with court This is an appellate threshold question rather than a trial-court ruling, but the court's treatment is defensible. Hester recognizes the unauthorized-sentence exception to forfeiture, and California courts routinely entertain lesser-included-offense multiple-conviction claims without a trial objection because the resulting judgment could not lawfully be entered under any circumstances. The fit between 'unauthorized sentence' and an improper conviction is slightly loose, but the result is consistent with settled practice and the People did not resist the merits. |
Imposition of a $80 court operations assessment (§ 1465.8) and $60 conviction assessment (Gov. Code, § 70373), calculated per conviction to include the petty theft count.“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.” | de novo | error (statutory interpretation) | agree with court Both assessments are mandatory per-conviction charges, so once the petty theft conviction is reversed the portion attributable to that count ($40 and $30) has no statutory basis. The court sensibly remanded rather than recalculating, directing the superior court to vacate whatever portion of the fines and fees was tied to the reversed count and to amend the abstract. The reasoning tracks the statutory text quoted in the opinion. |
Authorities
- relied: People v. Ortega (1998) 19 Cal.4th 686 — Theft is a necessarily included offense of robbery; multiple convictions are generally permitted under section 954 but not for necessarily included offenses.
- relied: People v. Montoya (2004) 33 Cal.4th 1031 — A judicially created exception to section 954 prohibits multiple convictions based on necessarily included offenses.
- relied: People v. Sanders (2012) 55 Cal.4th 731 — When a defendant is convicted of both a greater and a necessarily included lesser offense from the same conduct, the greater conviction controls and the lesser must be reversed.
- relied: People v. Villa (2007) 157 Cal.App.4th 1429 — A shoplifter who uses force against a store agent to retain merchandise commits a single robbery; theft of the goods from the store is the same taking and cannot support a separate theft conviction.
- relied: People v. Estes (1983) 147 Cal.App.3d 23 — A store security guard is an agent of the store, and force used against the guard to retain stolen merchandise converts the theft into robbery.
- relied: People v. Hester (2000) 22 Cal.4th 290 — A defendant may challenge an unauthorized sentence on appeal despite failing to object in the trial court.
The appellate opinion: sound — The court correctly identified that a section 654 stay is the wrong remedy for a conviction on a necessarily included offense and applied Ortega, Montoya, Sanders, Villa, and Estes to reverse the petty theft count and strip the associated per-conviction assessments. The opinion is brief and rests on a concession, but it addresses the forfeiture objection and the one substantive counterargument (separate takings) with on-point binding authority.
Opinion
Filed 5/28/26 P. v. Elam CA4/1 NOT TO BE PUBLISHED IN 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085733
Plaintiff and Respondent, (Super. Ct. No. SCD304081)
v.
DESHAWN RAMON ELAM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Rachel Cano, Judge. Affirmed in part, reversed in part with directions. Deanna Lynn Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Vincent LaPietra and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Deshawn Ramon Elam of robbery (Pen. Code,1 § 211) and petty theft (§ 484) for stealing cosmetics and clothing from a discount retail store and scuffling with a loss prevention officer who tried to stop him as he exited the store. On appeal, Elam contends his conviction for petty theft should be reversed because theft is a lesser necessarily included offense of robbery and the conviction for both arose from the same course of conduct. He also asks the court to vacate the portion of the assessments imposed for the petty theft conviction. The People agree Elam cannot be convicted of both robbery and petty theft based on the same course of conduct. Accordingly, we reverse the conviction for petty theft and direct the superior court on remand to vacate any portion of the fines and fees imposed for petty theft and to amend the abstract of judgment accordingly. BACKGROUND In June 2024, a loss prevention officer at a discount retail store observed Elam and a woman enter the store together. Each carried a small bag which they placed in a shopping cart. He saw the woman place about 10 cosmetic items in the cart. After the woman and Elam parted ways, the officer followed Elam through the store. He saw Elam quickly select four dress shirts and place them in the cart. In the luggage department, Elam grabbed a black bag. The officer saw him place the cosmetics and dress shirts in the bag. After seeing Elam conceal the items in the bag, the officer went to the front of the store where he watched Elam and the woman walk past the registers without paying. The officer confronted Elam as Elam stepped 1 Undesignated statutory references are to the Penal Code.
2 outside the doors. The officer showed Elam his store badge and asked Elam to return to the store to discuss the merchandise. Elam tried to walk away, but the officer grabbed Elam’s arm and pushed him against a pillar to try to handcuff him. Elam struggled with the officer and scratched the officer’s neck. When Elam dropped the bag, the officer released Elam because the officer was concerned about his safety. Elam swung at the officer, grabbed the bag, and walked away yelling threats. The officer called 911. The People charged Elam with grand theft (§ 487, subd. (a); count 1) and robbery (§ 211; count 2). A jury found Elam not guilty of grand theft, but convicted him of petty theft (§ 484), a lesser included offense of grand theft. The jury also convicted him of robbery. In a bifurcated proceeding, Elam admitted a prior strike (§§ 667, subds. (b)–(i), 1170.12) and a serious felony prior (§ 667, subd. (a)(1)). The court sentenced him to 11 years in state prison for robbery based on the middle term of three years, doubled for the strike, plus five years for the serious felony prior. The court stayed the punishment for petty theft under section 654, which prohibits punishment for multiple charges arising from a single act or course of conduct. The court ordered Elam to pay restitution of $600 (§ 1202.4, subd. (b)) and imposed a $600 parole revocation restitution fine, which was suspended unless parole is revoked. The court also imposed a fine of $41 under section 1202.5 along with assessments of $80 under section 1465.8 and $60 under Government Code section 70373. DISCUSSION I. The Petty Theft Conviction Must Be Reversed Elam contends, the People concede, and we agree Elam cannot be convicted of both robbery and petty theft based on the same conduct because 3 theft is a lesser necessarily included offense of robbery. (People v. Ortega (1998) 19 Cal.4th 686, 699.)2 “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. (§ 954; People v. Ortega[, supra, 19 Cal.4th at p.] 692.) However, a ‘judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. [Citations.]’ (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) [¶] 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.” (People v. Sanders (2012) 55 Cal.4th 731, 736.) This is true even though Elam first took items from the store and then took the same items from the loss prevention officer by force. (People v. Villa (2007) 157 Cal.App.4th 1429, 1434–1435.) 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. (Id. at p. 1435, citing People v. Estes (1983) 147 Cal.App.3d 23, 29.) We, therefore, reverse the conviction for petty theft (count 1).
2 The People contend Elam 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. (People v. Hester (2000) 22 Cal.4th 290, 295.)
4 II. The Court Shall Vacate Any Assessments Imposed for Petty Theft Section 1465.8, subdivision (a)(1), requires a court to impose a $40 court operations assessment for every conviction of a criminal offense. Similarly, Government Code section 70373, subdivision (a)(1), requires a $30 conviction assessment for each misdemeanor or felony conviction. Here, the trial court imposed a court operations assessment of $80 under section 1465.8, subdivision (a)(1), and a conviction assessment of $60 under Government Code section 70373, apparently for his two convictions. The court also imposed a fine of $41 under section 1202.5 along with a restitution fine of $600 (§ 1202.4, subd. (b)) 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. DISPOSITION Elam’s conviction for petty theft (count 1) is reversed. The matter is remanded with directions for the superior court to vacate any portion of the fines and fees imposed for petty theft and to amend the abstract of judgment consistent with this opinion. The clerk of the superior court shall serve the 5 California Department of Corrections and Rehabilitation with the amended abstract of judgment. In all other respects, the judgment is affirmed.
IRION, Acting P. J.
WE CONCUR:
KELETY, J.
CASTILLO, J.
Cites, in this corpus
- People v. Sanders S191341 · 2012-11-19
- People v. Villa B195363 · 2007-12-17
- People v. Montoya S111662 · 2004-08-09
- People v. Hester S077187 · 2000-02-17
- People v. Ortega S055216 · 1998-12-17
- People v. Estes Crim. 23762 · 1983-09-15