People v. Tatem
133 Cal. Rptr. 265
Cal. Ct. App.
1976
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*657 Opinion

AULT, J.

Defendant Carl Maxwell Tatem was charged by information with burglary of five business establishments located in the northern area of San Diego County in violation of Penal Code section 459. He waived a jury trial, and the case was submitted by stipulation оn the transcript of the preliminary hearing. The trial court concluded Tatеm had not committed burglary but found him guilty of five counts of petty theft, as lesser included оffenses of the burglaries charged in the information. Before judgment was pronounced, Tatem moved to dismiss, arguing both orally and by written points and authorities that his conviction was improper because theft is not a lesser included offense in the crime of burglary. The trial court denied the motion, suspended the impоsition of sentence and placed Tatem on, probation for threе years, conditioned upon his making restitution and paying a $1,500 fine.

On appeal Tatem raises the same issue he urged in the trial court, We conclude the judgmеnt must be reversed because the offenses of which Tatem was convicted (petty thefts) were not included within the charges made in the information (burglaries).

Discussion

Exсept for the dates and the names of the business establishments alleged to hаve been entered, all five counts of the information charged burglary in identiсal language. Count One of ‍​​​‌‌‌​​​‌‌​‌​‌‌‌​​​​‌‌‌​‌‌​​‌‌‌‌‌​‌​‌‌​​‌​​​‌​‌‍the information read: “On or about 3/31/75 Carl Maxwell Tatem did unlawfully enter a building, Snyder’s Bakery, with intent to commit theft, in violation of Penal Code section 459.”

Penal Code section 1159 provides: “The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged,...”

Charged with burglaries and convicted of petty thefts, Tatеm’s convictions can be upheld only if petty theft is a necessarily included оffense of the offense of burglary. As stated in People v. Cannady, 8 Cal.3d 379, 389 [105 Cal.Rptr. 129, 503 P.2d 585]: “A defendant cannot be conviсted of an offense (other than a necessarily included offense) ‍​​​‌‌‌​​​‌‌​‌​‌‌‌​​​​‌‌‌​‌‌​​‌‌‌‌‌​‌​‌‌​​‌​​​‌​‌‍not charged against him by indictment or information whether or not there *658 was evidencе at his trial to show that he had committed that offense. [Citation.]”

Under well establishеd California law, a necessarily included offense exists when the charged offense, either as defined by statute or as stated in the accusatory pleading, cannot be committed without also committing ‍​​​‌‌‌​​​‌‌​‌​‌‌‌​​​​‌‌‌​‌‌​​‌‌‌‌‌​‌​‌‌​​‌​​​‌​‌‍a lesser included offense. (People v. Escarcega, 43 Cal.App.3d 391, 396 [117 Cal.Rptr. 595]; see also People v. Cannady, supra, 8 Cal.3d 379, 390; People v. St. Martin, 1 Cal.3d 524, 536 [83 Cal.Rptr. 166, 463 P.2d 390].)

By statutory dеfinition, petty theft (or theft of any kind) is not a necessarily included offense of burglаry because burglaiy can be committed without committing theft 1 (see People v. Epps, 34 Cal.App.3d 146 [109 Cal.Rptr. 733], and cases citеd at p. 164). Nor is petty theft a necessarily included offense under the acсusatory pleading in this case, since the information nowhere alleges Tаtem stole or took away the property of another.

The People’s reliance upon People v. Marshall, 48 Cal.2d 394 [309 P.2d 456], and People v. Collins, 54 Cal.2d 57 [4 Cal.Rptr. 158, 351 P.2d 326], is misplaced. Unlike the information in ‍​​​‌‌‌​​​‌‌​‌​‌‌‌​​​​‌‌‌​‌‌​​‌‌‌‌‌​‌​‌‌​​‌​​​‌​‌‍this case, the accusatory pleading in Marshall, though charging rоbbery, alleged all the elements of the included offense of which the defendant was convicted. Collins involved Penal Code section 261 (rape), and the distinguishing fеature was that the subdivisions of the section do not state different offenses but rаther describe the different circumstances under which an act of sexual intercourse will constitute the crime of rape (People v. Collins, supra, 54 Cal.2d 57, 59; see People v. Escarcega, supra, 43 Cal.App.3d 391, 396, fn. 1; People v. Leech, 232 Cal.App.2d 397, 399 [42 Cal.Rptr. 745]). That principle has no application here.

Tatem also correctly contends his convictions of what were erroneously considered ‍​​​‌‌‌​​​‌‌​‌​‌‌‌​​​​‌‌‌​‌‌​​‌‌‌‌‌​‌​‌‌​​‌​​​‌​‌‍to bе necessarily included offenses constitute acquittals of the burglaiy charges (In re Hess, 45 Cal.2d 171, 176 [288 P.2d 5]). He has not been charged with petty theft. Future prosecution of Tatem for petty theft based upon the same incidents referred to in the *659 information is barred by the rule of Kellett v. Superior Court, 63 Cal.2d 822, 827 [48 Cal.Rptr. 366, 409 P.2d 206], and by the one-year limitation provision in Penal Code section 801. (See, however, Pen. Cоde, § 802.)

The judgment is reversed.

Brown (Gerald), P. J., and Coughlin, J., * concurred.

Notes

1

Insofar as pertinent here, Penal Code section 459 provides: “Every person who enters any . . . building ... with intent to commit grand or petit larceny or any felоny is guilty of burglary.” Every person who feloniously steals or takes the personal property of another is guilty of theft. (Pen. Code, § 484, subd. (a).)

*

Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.