P. v. Burgan
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 (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.)
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