Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. MJ19462, Benny C. Osorio, Judge.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Appellant T.W. was declared a ward of the juvenile court and ordered placed home on probation after the court sustained a petition under Welfare and Institutions Code section 602, alleging he had committed second degree robbery (Pen. Code, § 211) and grand theft (id., § 487, subd. (a)). On appeal, appellant contends the sustained allegation of grand theft must be reversed because it is a necessarily included offense of robbery. He also contends that he is entitled to an additional four days of credit. We agree that the sustained allegation of grand theft must be reversed and appellant is entitled to two additional days of credit.
FACTS
On the evening of February 14, 2010, Deion E. was at home when there was a knock at the door. Two girls, Dashae and Sarah, who had not been to his house before, asked him to “hang out.” He thought it was strange, but he agreed, provided it was “only on the steps.”
Deion had been talking to the girls for a few minutes, when appellant and Isaiah arrived. Deion knew appellant but not Isaiah. Appellant asked to see Deion’s cell phone, valued at $600. Deion said yes and handed the phone to appellant. Appellant looked at the phone and then handed it to Isaiah. Isaiah looked at the phone and said, “Thanks, kid, ” and then ran off with the phone. Deion started to chase Isaiah, but appellant pulled Deion’s jacket over his head and punched Deion several times. After Deion broke free, he ran after Isaiah, but he could not find him.
DISCUSSION
Grand Theft as a Lesser Necessarily Included Offense of Robbery
Appellant contends, and the People agree, that the sustained allegation as to grand theft must be reversed because it is a lesser included offense of robbery. We agree.
Theft, whether petty or grand, is a lesser included offense of robbery. (People v. DePriest (2007) 42 Cal.4th 1, 50.) “‘[M]ultiple convictions may not be based on necessarily included offenses.’” (People v. Ortega (1998) 19 Cal.4th 686, 692, italics omitted.) “‘“The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.”’” (Ibid.) “‘“Theft is a lesser included offense of robbery, which includes the additional element of force or fear.” [Citation.]’” (Id. at p. 694, quoting People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
Both the robbery and the grand theft took place during a single incident, with a single objective, taking Deion’s cell phone. Hence, the sustained allegation as to grand theft must be reversed.
Custody Credits
Appellant contends that he is entitled to 28 days of predisposition custody credits, rather than the 24 days the juvenile court gave him. The People submit that he is not entitled to any credits, but to the extent that he is entitled to credits, he is entitled to 26 days and not the 28 days that he seeks.
Welfare and Institutions Code section 726, subdivision (c), provides that if a minor is removed from the physical custody of his parents or guardian, he or she “may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult....” The language of the code has been interpreted to confer credit for any time spent in confinement prior to adjudication. (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067.) However, “section 726 should be interpreted as entitling a minor to credit for time previously spent in physical confinement when physical confinement is subsequently selected as a disposition.” (In re Randy J. (1994) 22 Cal.App.4th 1497, 1503.)
Appellant was placed home on probation. The trial court therefore was not required to determine the predisposition credit. (In re Randy J., supra, 22 Cal.App.4th at p. 1503.) Since it elected to do so, we will therefore review the determination of predisposition credits.
The record is clear, and the parties agree, that appellant was arrested on April 12, 2010, and he was released to his mother’s custody on April 15. The record reflects that he was also detained from June 10 until July 1. He was confined for 4 days in April, 21 days in June, and 1 day in July, a total of 26 days. Appellant contends that he is entitled to 28 days of predisposition custody credits based upon his counsel’s statement at the disposition hearing. At the disposition hearing, defense counsel was asked about predisposition credits and responded, “I believe he’s been in since June 8, 2010.” While the Probation Officer’s Report, prepared June 8 and filed with the court on June 10, 2010, recommended that appellant be detained in juvenile hall, there is no indication from the record that he was detained prior to the hearing on June 10. The record indicates that he spent a total of 26 days in confinement.
DISPOSITION
The sustained allegation as to grand theft is reversed. The July 1, 2010 order is modified to provide appellant with 26 days of predisposition custody credit. As so modified, the order is affirmed.
We concur: PERLUSS, P.J., ZELON, J.