People v. Burgan CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN314662
- Trial judge
- Kathleen M. Lewis
- Outcome
- modified — Affirmed as modified with directions.
- Area
- criminal
- Panel
- Judith L. Haller (author), Patricia D. Benke, Joan K. Irion
Analysis
The trial court convicted the defendant of robbery, burglary, petty theft, and vandalism, and imposed associated fines and assessments. On appeal, the court modified the judgment by striking the petty theft conviction as a lesser included offense of robbery and reducing the corresponding assessments, while affirming the rest of the judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for petty theft (Count 3)“The conviction of petty theft must therefore be reversed. (People v. Villa (2007) 157 Cal.App.4th 1429, 1435.)” | de novo | error | agree with court agree with court |
Imposition of court operations and facilities assessments for petty theft“The judgment is modified by striking the conviction of petty theft (§ 484; count 3), by reducing the court operations assessment (§ 1465.8) by $40 and by reducing the court facilities assessment (Gov. Code, § 70373) by $30.” | de novo | error | agree with court agree with court |
Authorities
- relied: People v. Burns (2009) 172 Cal.App.4th 1251 — Theft in any degree is a lesser included offense to robbery, since all of its elements are included in robbery.
- relied: People v. Reed (2006) 38 Cal.4th 1224 — When two charged offenses are based on the same criminal act or course of conduct and one is a lesser included offense of the other, the defendant cannot be convicted of both.
- relied: People v. Villa (2007) 157 Cal.App.4th 1429 — Supports the reversal of a conviction for a lesser included offense when it is based on the same course of conduct as the greater offense.
The appellate opinion: sound — The opinion correctly applies the statutory elements test to determine that petty theft is a lesser included offense of robbery. It properly cites binding authority to support the conclusion that dual convictions for the same course of conduct are impermissible.
How this analysis was made · dispute it
unusual dispositionThe trial court entered judgment on jury verdicts convicting Burgan of robbery with a deadly-weapon enhancement, burglary, misdemeanor petty theft, and misdemeanor vandalism, sentencing him to four years and imposing per-conviction court operations and court facilities assessments. The Court of Appeal, on the Attorney General's concession, struck the petty theft conviction as a lesser included offense of robbery arising from the same course of conduct, reduced the assessments by $40 and $30, and otherwise affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Entry of conviction on misdemeanor petty theft (count 3) alongside robbery (count 1) based on the same course of conduct“Here, the petty theft count and the robbery count were based on the same course of conduct. The conviction of petty theft must therefore be reversed.” | de novo | error (law misapplied) | agree with court Under People v. Reed, a defendant may not stand convicted of both a greater and a necessarily included offense based on the same act; theft in any degree is a lesser included offense of robbery under the statutory elements test. The facts recited show one taking of the shop's money, so the dual conviction was improper and the People correctly conceded. |
Imposition of a $40 court operations assessment (Pen. Code, § 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373) for the petty theft conviction“The court imposed one of each of these assessments for each of Burgan's four convictions.” | de novo | error (statutory interpretation) | agree with court Both assessments attach per conviction by statute; once the petty theft conviction is stricken there are only three convictions, so one $40 and one $30 assessment must be removed. The reduction follows mechanically from the reversal. |
Authorities
- relied: People v. Burns (2009) 172 Cal.App.4th 1251 — Theft in any degree is a lesser included offense of robbery because all of its elements are included in robbery.
- relied: People v. Reed (2006) 38 Cal.4th 1224 — A defendant cannot be convicted of both a greater offense and a lesser offense necessarily included in it under the statutory elements test when both are based on the same act or course of conduct.
- relied: People v. Villa (2007) 157 Cal.App.4th 1429 — A conviction for a lesser included offense must be reversed when the defendant is also convicted of the greater offense based on the same conduct.
The appellate opinion: sound — The opinion applies the settled Reed rule with the correct authorities to an undisputed, conceded point, and the assessment reductions follow directly from the per-conviction statutory text. The disposition appropriately strikes the lesser conviction and the associated fees while leaving the remaining judgment intact.
Opinion
Filed 1/7/14 P. v. Burgan 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, D064075
Plaintiff and Respondent, v. (Super. Ct. No. SCN314662)
STEELE ANDREW BURGAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed as modified with directions.
Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent. In January 2013, Steele Andrew Burgan entered a shop, held a knife to the owner's face and ordered her to give him money. The owner ran out of the shop. Burgan then ran out. When the owner returned to the shop, she found her cash drawer damaged and more than $200 missing. Sheriff's deputies apprehended Burgan and found the money on his person.
A jury found Burgan guilty of robbery with personal use of a deadly weapon (Pen.
Code, §§ 211 & 12022, subd. (b)(1);1 count 1), burglary (§ 459; count 2), misdemeanor petty theft (§ 484; count 3) and misdemeanor vandalism (§ 594, subds. (a) & (b)(2)(A);
count 4). The court sentenced him to four years in prison: the three-year middle term for robbery and one year for the enhancement, a stayed term for burglary (§ 654) and credit for time served on the misdemeanor counts. Burgan appeals, contending the petty theft conviction must be reversed because that crime is a lesser included offense of robbery, and accordingly the court operations assessment (§ 1465.8) must be reduced by $40 and the court facilities assessment (Gov. Code, § 70373) must be reduced by $30.
Respondent properly concedes these points.
"Theft in any degree is a lesser included offense to robbery, since all of its elements are included in robbery." (People v. Burns (2009) 172 Cal.App.4th 1251, 1256.) When two charged offenses are based on the same criminal act or course of conduct and, according to the statutory elements test, one offense is a lesser included offense of the other, the defendant cannot be convicted of both offenses. (People v. Reed 1 Statutory references are to the Penal Code unless otherwise specified. 2 (2006) 38 Cal.4th 1224, 1226, 1231.) Here, the petty theft count and the robbery count were based on the same course of conduct. The conviction of petty theft must therefore be reversed. (People v. Villa (2007) 157 Cal.App.4th 1429, 1435.)
The court operations assessment is $40 for every criminal conviction. (§ 1465.8, subd. (a)(1).) The court facilities assessment is $30 for each felony or misdemeanor conviction. (Gov. Code, § 70373, subd. (a)(1).) The court imposed one of each of these assessments for each of Burgan's four convictions.
DISPOSITION
The judgment is modified by striking the conviction of petty theft (§ 484; count 3), by reducing the court operations assessment (§ 1465.8) by $40 and by reducing the court facilities assessment (Gov. Code, § 70373) by $30. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
Cites, in this corpus
- People v. Burns B205324 · 2009-04-08
- People v. Villa B195363 · 2007-12-17