In re C.G.



















Filed 7/16/12 In re C.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NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 C.G., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. C.G., Defendant and Appellant.	D060605 (Super. Ct. No. J226597)

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Browder A. Willis, III, Judge. Affirmed as modified.



C.G. was
declared a ward of the court under Welfare and Institutions Code section 602
after the juvenile court found true allegations that he committed robbery,
burglary, theft from a merchant, and possessed alcohol when under 21 years of
age in a public place. The court ordered
C.G. to the Camp Barrett program for a period not to exceed
365 days. C.G. asserts that the true
finding on the theft charge must be reversed because it is a necessarily
included offense of robbery. We agree
and will modify the judgment accordingly.

FACTUAL
BACKGROUND

C.G. and J.G. entered
a grocery store, each picked up a 12-pack of beer and started to leave the
store without paying. The store manager
grabbed J.G. after the minors ignored her request to see a receipt. After J.G. broke free, the minors fled and
were later arrested.

DISCUSSION

California law
prohibits convicting a defendant of two offenses arising from a single criminal
act when one is a lesser offense necessarily included in the other. (People
v. Montoya (2004) 33 Cal.4th 1031, 1033.)
Based on this principle, C.G. contends the href="http://www.fearnotlaw.com/">juvenile court erred when it made a true
finding on both the robbery and theft counts arising from one course of conduct
because theft is a necessarily included offense of robbery. The Attorney General concedes that theft is a
necessarily included offense of robbery, but argues that the rules against
multiple convictions for necessarily included offenses do not apply to the
juvenile proceedings here because the theoretical maximum length of C.G.'s
confinement was not increased by the necessarily included offense. Since both parties cite the same case law to
make their respective arguments, we turn to these cases.

In >In re Robert W. (1991) 228 Cal.App.3d
32, the minor claimed the juvenile court erred when it made true findings on
both robbery and assault because it violated the rule against multiple convictions
based on lesser included offenses. (>Id. at p. 33.) The appellate court rejected this contention
stating that the considerations underlying the prohibition against convicting
adults of both greater and lesser offenses do not apply to juveniles as long as
the theoretical maximum length of potential confinement is not increased by the
aggregation of the minor's offenses. (>Id. at p. 34.)

This issue
was next addressed in In re Jose H. (2000)
77 Cal.App.4th 1090, where the juvenile court placed the minor on probation
after sustaining a
wardship petition based on findings of, among other things, battery with
serious bodily injury, and assault with a deadly or dangerous weapon with force
likely to produce great bodily injury, with a great bodily injury
enhancement. (>Id. at p. 1092.) On appeal, the minor claimed that by committing a felony
assault with great bodily injury, he necessarily committed a battery with
serious bodily injury. (>Id. at p. 1093.) After acknowledging the general principle
that multiple convictions may not be based on necessarily included offenses,
the appellate court rejected
the minor's claim because this rule applied to offenses, not offenses as
enhanced by additional allegations. (>Id. at p. 1095.)

In >In re Marcus T. (2001) 89 Cal.App.4th
468, the appellate court concluded that where two crimes are based upon the
commission of the same act, and one is a lesser and necessarily included
offense of the other, a minor may not be found guilty of both. (Id.
at p. 471.) However, after analyzing the
minor's crimes under the statutory elements test, the appellate court concluded
that the crime of terrorist threats in violation of Penal Code section 422 was
not a lesser included offense of the crime of threatening a public officer in violation
of Penal Code section 71 (id. at p.
472), but remanded the matter to the juvenile court to determine whether under
the accusatory pleadings test, the minor's act of threatening a public officer
in violation of Penal Code section 71 was a lesser included offense of his
terrorist threat in violation of Penal Code section 422. (Id.
at pp. 472, 475.)

Finally, in >In re Edward G. (2004) 124 Cal.App.4th
962 (disapproved by People v. Licas (2007)
41 Cal.4th 362), the juvenile court found true allegations that the minor
discharged a firearm from a vehicle at a person outside the vehicle (count 1)
and committed an assault with a firearm (count 2). (In re
Edward G., supra, at p.
966.) After applying the statutory
elements test, the appellate court concluded that count 2 must be reversed
because it was an offense necessarily included in the offense charged in count
1. (Id.
at pp. 967, 971.)

In all of
these cases, except In re Robert W.,
the appellate court accepted the notion that the rules against multiple
convictions for necessarily included offenses apply to href="http://www.mcmillanlaw.com/">juvenile proceedings. We reach the same conclusion. In re
Robert W. is an anomaly as it was decided in 1991, before the enactment of
the three strikes law in 1994. (>People v. Jennings (1999) 70 Cal.App.4th
899, 902, fn. 3.) The subsequently
enacted three strikes law makes clear that a juvenile adjudication qualifies as
a strike "[n]otwithstanding any other provision of law." (Pen. Code, § 1170.12, subd. (b)(3); see also
Pen. Code, § 667, subd. (d)(3).) Thus,
after enactment of the three strikes law, true findings against a minor on two
crimes that constitute strike offenses could have dramatic future consequences
if the necessarily included offense is not stricken. Accordingly, we turn to the Attorney
General's argument that the
rule against multiple convictions for necessarily included offenses
should not apply in this case because the theoretical maximum length of C.G.'s
confinement was not increased by the necessarily included theft offense.

The
Attorney General relies on In re Robert W.
to support its assertion; however, as we have already noted, this case was
decided before enactment of the three strikes law. Additionally, the Attorney General's attempt
to distinguish In re Jose H. is
misplaced. In In re Jose H., the appellate court accepted the notion that the rules against multiple convictions
for necessarily included offenses apply to juvenile proceedings even where the
length of confinement could not be increased by the necessarily included
offenses because the minor was on probation.
(>In re Jose H., supra, 77 Cal.App.4th at pp. 1092, 1095.) Moreover, the other cases decided after
enactment of the three strikes law did not engage in the Attorney General's
proposed analysis that a necessarily included offense should only be stricken
if not doing so would increase the theoretical maximum length of the minor's
confinement. (See In re Edward G., supra,
124 Cal.App.4th at p. 967; In re Marcus T.,
supra, 89 Cal.App.4th at p.
471.) We too decline to engage in this
analysis. Accordingly, we conclude that
because C.G.'s act of robbery necessarily included the theft, the theft finding
must be stricken.

DISPOSITION

The true finding for a violation of
Penal Code sections 484 and 490.5, theft from a merchant, is reversed. As modified, the judgment is affirmed.





McINTYRE, J.



WE CONCUR:



McCONNELL, P. J.



HUFFMAN, J.