[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *1431 OPINION
Antonio Espinoza Villa (appellant) was convicted of one count of second degree robbery (Pen. Code, §
We find that there was sufficient evidence that appellant committed robbery (count 1). We hold that a defendant cannot be convicted both of robbery and petty theft with a prior, arising from the same incident, because the prior conviction is a sentencing factor, rather than an element, so petty theft with a prior is a lesser included offense of robbery. We therefore strike count 3, and order a corresponding reduction in the court security fee.
Before the trial started, appellant admitted the 2000 prior conviction, solely for the purpose of count 3.
The evidence showed that Meza heard a store alarm go off as he was showing cell phones to Canales. The alarm was coming from a display of car navigation systems (GPS) about 20 feet away. Meza then saw appellant walking away from the display, holding a Magellan GPS. Meza yelled at appellant to stop. Appellant left the store without paying for the system. Meza and Canales followed appellant out of the store. Appellant pedaled off on a bicycle. Meza and Canales chased him on foot, still yelling at him to stop. Appellant extended his arm and pointed a silver-colored metal object at Meza and Canales, for about 10 seconds, from a distance of 12 to 15 feet. Meza and Canales believed that the object was a gun. They gave up the chase and returned to the store. They described what had happened to another store employee, Ralph Villafranca. He got into his car, drove around, and spotted appellant on the bicycle. Appellant stopped at a warehouse, dropped something, and went on toward other warehouses. Villafranca called the police on a cell phone. They arrived and detained appellant. Canales was brought to the location, and identified appellant. Appellant had a metal cigarette lighter, but no gun, on his person. Canales thought the lighter was the object appellant had pointed during the incident.
The GPS was not recovered. It was worth $299.
At the conclusion of the People's case, the court struck count 2, the robbery count involving Canales. It refused to strike count 3.
No defense was presented.
The jury found appellant guilty of counts 1 and 3. He later admitted, all of the prison priors.
The trial court imposed a 10-year prison sentence, based on the five-year upper term for count 1, plus five consecutive one-year terms for five prison priors. It imposed the upper term of three years on count 3, but stayed that count, pursuant to section 654. The remaining prison priors were stricken in the interest of justice.
This appeal followed.
Appellant contends that there was insufficient evidence that he took property from the immediate presence of another by means, of force or fear. *1433
Utilizing the appropriate standard of review (People v. Catlin (2001)
"In this state, it is settled that a robbery is not completed at the moment the robber obtains possession of the stolen property and that the crime of robbery includes the element of asportation, the robber's escape with the loot being considered as important in the commission of the crime as gaining possession of the property. [Citations.] [¶] Accordingly, if one who has stolen property from the person of another uses force Or fear in removing, or attempting to remove, the property from the owner's immediate presence, as defendant did here, the crime of robbery has been committed." (People v. Anderson (1966)
Based on the above principles, there was sufficient evidence of a taking by means of force or fear. Appellant facilitated his escape with the stolen property, and prevented Meza from regaining it, by pretending to point a gun at Meza. His action caused Meza to discontinue the chase, to avoid being shot. Using the metallic object to induce fear established the fear element of robbery.
Since the crime of robbery was established during the chase, we need not address the parties' arguments regarding whether the crime was established while appellant was still inside the store.
2. Count 3 Was a Lesser Included Offense of Count 1
Appellant was convicted of robbing the victim Meza (§ 211; count 1), and petty theft with a prior from the victim RadioShack (§ 666; count 3). The trial court stayed count 3, pursuant to section 654. It refused to strike count 3, ruling that petty theft with a prior is not a lesser included offense of robbery, because it includes the element La prior conviction, which is not an element of robbery. That ruling overlooked the fact that the prior conviction is a sentencing factor, and not an element.
Section 666 states, in pertinent part: "Every person who, having been convicted of petty theft . . . and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted *1434 of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison."
In general, a defendant may receive multiple convictions for offenses arising out of a single act or course of conduct, but not multiple punishments, due to section 654. There is an exception, as multiple convictions may not be based on necessarily included offenses. The test for necessarily included offenses is whether an offense cannot be committed without necessarily committing another offense. (People v.Ortega (1998)
Theft is a lesser included offense of robbery. (People v. Ledesma
(2006)
Applying those principles, Ortega ruled that the defendants could not be convicted both of robbing the victim Rubio and stealing his van during a single course of conduct. (Ortega, supra,
Similarly, in Estes, supra,
Here, the trial court erred in ruling that the prior conviction was an element of the crime of petty theft with a prior. "[T]he prior conviction and incarceration requirement of section 666 is a sentencing factor for the trial court and not an `element' of the section 666 `offense' that must be *1435
determined by a jury." (People v. Bouzas (1991)
Respondent argues that appellant may be convicted of both count 1 and count 3 because the counts had different alleged victims, Meza and the RadioShack store. We reject that argument for the same reason that theEstes court did. Meza was the agent of his employer, RadioShack, so the crimes had the same victim, legally, even though the information alleged the employee and the store as two separate victims.
Respondent cites cases authorizing separate robbery convictions for each person to whom force or fear is applied, during a single incident. (See, e.g., People v. Champion (1995)
We therefore conclude that appellant's conviction on count 3 must be reversed.
3. The Court Security Fee
The trial court imposed a $40 fee pursuant to section 1465.8, subdivision (a)(1), which provides: "To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense. . . ." Since we strike appellant's conviction on count 3, leaving his conviction on count 2, the court security fee must be reduced to $20. *1436
Cooper, P. J., and Rubin, J., concurred.
A petition for a rehearing was denied January 15, 2008, and appellant's petition for review by the Supreme Court was denied February 27, 2008, S160236. George, C. J., and Corrigan, J., did not participate therein.