In re Joel G.









Filed 5/9/12 In re Joel G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re JOEL G., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. JOEL G., Defendant and Appellant.	D060564 (Super. Ct. No. J225756)

APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis III, Judge. Affirmed as modified.

On August 8, 2011, Joel G. and a companion entered a store. They left, each carrying beer. They did not pay for the beer. The store manager confronted Joel outside the store. A struggle ensued. Joel and his companion left with the beer.
The juvenile court entered true findings of robbery (Pen. Code, § 211; count 1) and burglary (Id., § 459; count 3), both felonies, and petty theft of merchandise (Id., §§ 484, 490.5; count 4) and possession of alcohol as a minor (Bus. & Prof. Code, § 25662, subd. (a); count 5), both misdemeanors. The court continued Joel as a ward and committed him to the Breaking Cycles program for a period not to exceed 365 days, to be followed by home placement.
Joel appeals, contending the true finding of petty theft of merchandise must be dismissed because that offense is a lesser included offense of robbery. The People properly concede the point. "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, 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 (2006) 38 Cal.4th 1224, 1231.)
DISPOSITION
The judgment is modified by striking the true finding of petty theft of merchandise (Pen. Code, §§ 484, 490.5; count 4). As so modified, the judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:



HALLER, J.



AARON, J.