Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06HF2498 Kirk H. Nakamura, Judge. Affirmed in part; reversed in part with directions.
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Willie Frank Gerome Armer III stole women’s underwear from a store. When the store’s loss prevention officers tried to detain him, he pushed them away and tried to escape. He was arrested and charged with second degree robbery (count 1), second degree commercial burglary (count 2), and petty theft with a prior conviction (count 3). Armer stipulated he was guilty of counts 2 and 3. However, he disputed using force or fear, an essential element of the robbery charge. A jury found Armer guilty of all three counts, and the trial court sentenced him to two years on count 1, a concurrent low term of eight months on count 2, and stayed the sentence on count 3. He was also ordered to pay $60 in court security fees and a $1,200 restitution fine.
On appeal, Armer contends the court: (1) should have granted his Batson-Wheeler motion; (2) improperly gave the Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 376 [Possession of Recently Stolen Property as Evidence of a Crime]; (3) erroneously determined he was ineligible for probation; (4) should have stayed the sentence on count 2; (5) failed to recognize petty theft is a lesser included offense of robbery; and (6) should reduce his security fee. We agree with Armer and the Attorney General that the court should have stayed his sentence on count 2. We also conclude Armer’s petty theft conviction must be vacated and he is entitled to a new sentencing hearing because the court erroneously believed he was ineligible for probation. However, the remaining contentions lack merit, and we affirm the judgment in all other respects.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258.
I
In late December 2006, Armer and two female friends entered the Nordstrom Rack in Costa Mesa. Because they were engaging in suspicious activity, the three friends were being watched carefully by three of the store’s loss prevention/security officers, Amber Webber, Ronnie Altinawi, and Ryan Segovia.
Webber testified she saw Armer and the two young women enter the women’s lingerie department. She saw they talked, separated for a while, and met again to talk some more. Webber watched Armer walk through the lingerie department, looking at items, and removing items from the hangers. She saw him take a pair of women’s underwear and put it into his pocket. After rejoining with his two friends, Armer left the store without paying for the merchandise.
Webber and Atlinawi followed him out of the store; Segovia remained behind. Webber and Altinawi approached Armer, and Altinawi showed his badge. Altinawi stated he was with the loss prevention office and asked Armer to return to the store.
Armer backed away. Altinawi grabbed Armer’s arm, intending to handcuff him. However, Armer pushed Altinawi, causing him to fall backwards into Webber. As the security guards fell to the ground, Armer tried to run away. He did not get far because Segovia came outside and tackled him to the ground. Segovia, Webber, and Atlinawi had a difficult time putting on the handcuffs because Armer was resisting their efforts by keeping his arms under his chest on the ground away from the security officers. It took them approximately five minutes to restrain Armer. Webber stated she was afraid she would be injured during the struggle.
Armer had taken three items of women’s underwear, valued at $16. Officer Jeffrey Tobin of the Costa Mesa Police Department arrested Armer. At the trial, Armer stipulated he was guilty of the crime of second degree commercial burglary as charged in count 2, and guilty of the crime of theft with a prior conviction charged in count 3 of the information. As part of the stipulation, Armer also admitted he was previously convicted of theft of property from a person for which he had served time in a penal institution (Pen. Code, § 487, subd. (c)).
All further statutory references are to the Penal Code, unless otherwise indicated.
A jury found Armer guilty of the three counts. The probation report prepared for the sentencing hearing stated Armer was ineligible for probation because he was on probation when he committed the latest offense. When Armer’s mother asked if the court could put her son on probation for such a minor crime, the court replied, “I understand, and unfortunately it is a situation where I can’t give him probation under the law, as I view it. [¶] I think the law is rather harsh. Let me say that.” The trial court sentenced Armer to the low term of two years in prison for count 1, plus a concurrent eight months for count 2, and stayed the sentence on count 3.
II
A. The Batson-Wheeler Motion
Armer contends the prosecutor’s removal of the sole African-American juror (No. 137, hereafter, Mr. S.) was based on impermissible racial discrimination. He asserts the prosecutor’s explanation for excusing the juror is unsupported by the record and “comparable juror analysis” compels a reversal. We disagree.
Mr. S. was in the first group of names called for voir dire. The prosecutor exercised a peremptory challenge against Mr. S. Armer’s counsel asked for a sidebar conference and noted Mr. S. was the only African-American in the jury pool. He stated he was objecting to the peremptory challenge “on that basis.”
The court asked the prosecutor to state reasons for the challenge. The prosecutor replied Mr. S. was excused on race-neutral grounds. The prosecutor explained that when he questioned the potential jurors about their ability to follow the law, Mr. S.’s responses indicated that in some circumstances he would have a hard time following the law. He stated the line of questioning was taken down by the reporter, “so if the court has any further inquiry of the people” they could replay Mr. S.’s responses. The court denied the Batson-Wheeler motion, stating, “Yes, I’m aware, and I recall the conversation. I think it is a legitimate ground, although I do have concerns that he was the only African-American on our panel.”
The prosecution’s line of questioning was as follows: Near the end of voir dire of the first panel of prospective jurors, the prosecutor explained there may be occasions when a person disagrees with the law, but would nevertheless have to follow it. He stated one of the responsibilities of a juror is to follow the law even if he or she does not like it. The prosecutor gave a hypothetical, asking the panel to assume the case was about speeding on the freeway, and the defendant was a driver who was driving 65 miles per hour in a 55 mile per hour zone. The prosecutor asked prospective juror No. 136 if he would have any problems returning a guilty verdict in the hypothetical situation, if the evidence supported the verdict. Juror No. 136 responded he did not.
The prosecutor then changed the hypothetical to a situation where the driver was traveling 58 miles per hour when the speed limit was 55 miles per hour. He noted prospective juror No. 119, who had stated his occupation was a physician, was laughing. He asked this juror if the evidence could prove speeding beyond a reasonable doubt, would the juror be able to convict the driver even if he did not personally agree with the law. Prospective juror No. 119 responded, “Yes.”
The prosecutor then asked the entire panel if anyone would give the driver a break and find him not guilty due to their disagreement with the law. He addressed Mr. S. stating, “you’re kind of laughing.” Mr. S. replied, “I don’t think that, but I think extenuating circumstances need to be taken into account.” The prosecutor offered the following hypothetical with extenuating circumstance: “Let’s say [a physician] is on his way to the hospital. He got a page and there is an emergency and he’s gone to literally to save someone’s life. . . . [¶] Now, would you cut him a break in that situation? You would not follow the law? You would say, ‘You know what? Even though the law tells me[.]’”
Mr. S. replied, “Honestly, if it’s a situation where he’s going three miles over the speed limit trying to get to the hospital, stuff like that—honestly, it would be like, there’s bigger things, there are people out there committing mass murders.”
The prosecutor asked Mr. S. if he would be unable to follow the law despite the judge’s instructions. Mr. S. stated, “if he’s driving with the flow of traffic–[.]” The prosecutor then asked Mr. S. to “imagine that person just said to the officer, ‘You know what? I just wasn’t paying attention. I have nowhere to go. I was just speeding.’ In that case, you are willing to convict the person, right?” Mr. S. stated, “Yes.”
The prosecutor lectured to the jury that the reason America has the best system of justice is because the law treats everyone equally, rich or poor, and regardless of their occupation or social status. He stated the task given to jurors is to follow the law and put aside whatever sympathy they may feel about certain issues. The prosecutor asked the panel, “So, knowing that, does everyone feel comfortable that even though it’s only one mile over the speed limit, that your job is to follow the law, and if the evidence is there, you must follow the law?”
The prosecutor then asked prospective juror No. 118 “would you be able to handle that responsibility and follow the law if the evidence shows the person is guilty?” She replied, “I think so.” The prosecutor asked, “Mr. S.?” He replied, “Yes.” The prosecutor then called the names of the other 14 prospective jurors to reply to his question, and they all answered, “Yes.”
“The use of peremptory challenges to remove prospective jurors because of their race or gender violates both the federal and the California Constitutions. [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 104 (Jurado).) “The principles first articulated in [the Wheeler]case are now well settled. [Citations.] A party may not use peremptory challenges to remove prospective jurors solely on the basis of group bias. Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. [Citation.]” (People v. Fuentes (1991) 54 Cal.3d 707, 713-714.)
“The United States Supreme Court has set out a three-step process to be followed when a party claims that an opponent has improperly discriminated in the exercise of peremptory challenges. First, the complaining party must make out a prima facie case of invidious discrimination. Second, the party exercising the challenge must state nondiscriminatory reasons for the challenge. Third, the trial court must decide whether the complaining party has proved purposeful discrimination. [Citations.]” (Jurado, supra, 38 Cal.4th at p. 104.)
“By asking the prosecutor to explain the peremptory challenges, the trial court here implicitly found that defendant had made a prima facie showing of impermissible discrimination in the exercise of peremptory challenges. [Citation.] Once the trial court ruled on the credibility of the prosecutor’s stated reasons, the issue of whether the defense had made a prima facie showing became moot. [Citations.] [¶] When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. [Citaitons.]” (Jurado, supra, 38 Cal.4th at pp. 104.)
Here, because the court asked the prosecutor to explain the peremptory challenge, the only issue for us to review is whether the trial court’s acceptance of the prosecutor’s reason for the challenge is supported by the record. Contrary to Armer’s accusations, we find substantial evidence supports the court’s ruling. We conclude the prosecutor’s use of a minor speeding violation hypothetical was an effective line of questioning. The prosecutor had a difficult challenge of finding jurors who would fairly consider the robbery charge in a case where there was no weapon or serious injury. It was his goal to flush out the jurors who were inclined to give Armer a break. And, as aptly summarized by the Attorney General, the record shows Mr. S. was one of those jurors as he “felt there were bigger fish to fry than a driver who slightly exceeded the speed limit[.]” When directly asked if he would convict a doctor driving three miles over the speed limit, he replied, “honestly . . . there’s bigger things, there are people out there committing mass murders.” When questioned further about whether he would be unable to follow the law and convict the speeder despite the judge’s instructions, Mr. S. gave the nonresponsive answer, “If he’s driving with the flow of traffic. . . .” Only after the prosecutor explained the law treats everyone equally and asked Mr. S. if he understood, did Mr. S. reply “uh-huh” and then said, “yes” when asked for the fourth time if he would “follow the law if the evidence shows the person is guilty[.]”
The court stated it recalled Mr. S.’s statements during the prosecutor’s line of questioning, and there was no need for the reporter to read the conversation back again. Given the nature of the case, it was reasonable for the court to find credible the prosecutor’s distrust of Mr. S.’s ability to act as an impartial juror after twice revealing he would be hesitant to follow the law in what he considered a laughable crime (driving three miles over the speed limit), especially if there were extenuating circumstances. Mr. S.’s opinioned statements were significant in this case because the court understood the $16 lingerie theft may cause some jurors to question the robbery charge. “[W]e defer to the trial court’s determination as to credibility. (Hernandez [v. New York (1991)] 500 U.S. [352,] 365 [best evidence of whether race-neutral explanation should be believed is often ‘the demeanor of the attorney who exercises the challenge,’ and ‘evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province”’]; Batson, supra, 476 U.S. at p. 98 . . ., fn. 21 [‘Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference’].)” (People v. Schmeck (2005) 37 Cal.4th 240, 275.)
We conclude an expressed sympathy or bias against prosecution of minor crimes is a legitimate race-neutral reason for excusing a juror in this case involving a relatively minor-sounding crime. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1016 [“But the prosecutor may excuse prospective jurors, including members of cognizable groups, based on personal, individual biases those individuals actually express. . . . That is so even if the biased view or attitude may be more widely held inside the cognizable group than outside of it”].) We agree with the Attorney General’s assertion the trial court’s statement it was “concerned” did not relate to the prosecutor’s excuse but rather was a commentary on the disappointing lack of other African-American in the venire.
Armer contends a comparative analysis of Mr. S. and prospective juror No. 119 “further confirms that the prosecutor’s proffered reason for removing Mr. S. was a pretext for discrimination.” He explained there are no striking distinctions between these two male jurors, other than race, which would explain the disparate treatment. He pointed out both men were married professionals, with no prior juror experience, and both laughed at the prosecutor’s speeding hypothetical. He maintains, “both men affirmatively answered the prosecutor’s question that they could follow the law and convict in the hypothetical speeding case.”
However, the prosecutor did not say the reason he wanted to excuse Mr. S. was because he laughed. Rather, the prosecutor specified the reason as follows: “When I asked him the hypothetical in relation to convicting someone where the evidence shows beyond a reasonable doubt they are driving over the speed limit, he said he would have a hard time with that because he would feel sympathetic because the [District Attorney] should have bigger fish to fry and there are mass murderers out there. And in that circumstance, he wouldn’t vote guilty and he would have a hard time following the law as instructed by the court.” When the prosecutor directed the same hypothetical speeding question to prospective juror No. 119, and asked if he would be able to convict the driver, juror No. 119 unequivocally replied, “Yes.” The two prospective jurors’ responses are not comparable.
Armer also attempts to compare Mr. S. with prospective juror No. 118, who he claims gave the equivocal answer of “I think so” when asked if she could convict the hypothetical speeding driver. Armer acknowledges the defense excused this juror, but he asserts the prosecutor “did not intend to challenge her” because it only had one peremptory challenge remaining. This misstates the record. The prosecutor challenged two other prospective jurors after excusing Mr. S. Moreover, the two jurors are not comparable because prospective juror No. 118 repeatedly stated she did not think she could be “very fair” to Armer because her father’s pharmacy had been burglarized three times, and if Armer was on trial, “then there’s a reason why he’s here[.]” Certainly, this opinion is not comparable to Mr. S.’s opinion minor cases with extenuating circumstances are a waste of time.
B. CALCRIM No. 376
Armer argues it was prejudicial error, and a violation of his federal constitutional due process rights, for the court to instruct the jury pursuant to CALCRIM No. 376 (possession of recently stolen property as evidence of a crime). He asserts the instruction was inappropriate because he admitted stealing the items and the only contested issue was whether he used force or fear to support the robbery allegation.
CALCRIM No. 376 “is based upon the long-standing rule of law which allows a jury to infer guilt of a theft-related crime from the fact a defendant is in possession of recently stolen property when coupled with slight corroboration by other inculpatory circumstances which tend to show guilt [citations].” (People v. Barker (2001) 91 Cal.App.4th 1166, 1173.) Here, the jury received the instruction: “If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of counts 1, 2, [and] 3 based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed counts 1, 2, [and] 3. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of counts 1, 2, [and] 3. [¶] Remember that you may not convict the defendant of any crime unless you are convinced of each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”
We conclude CALCRIM No. 376, like its predecessor CALJIC No. 2.15, “correctly prohibits the jury from drawing an inference of guilt solely from conscious possession of recently stolen property but properly permits the jury to draw such an inference where there is additional corroborating evidence. As long as the corroborating evidence together with the conscious possession could naturally and reasonably support an inference of guilt, and that inference is sufficient to sustain a verdict beyond a reasonable doubt, we discern nothing that lessens the prosecution’s burden of proof or implicates a defendant’s right to due process.” (People v. Williams (2000) 79 Cal.App.4th 1157, 1173 [allowed instruction permitting an inference of guilt on second-degree armed robbery charge if jury found that defendant had conscious possession of recently stolen property and there was additional corroborating evidence of guilt].) CALCRIM No. 376 is not reasonably susceptible of being misinterpreted to lower the prosecution’s burden of proof concerning robbery, especially when that instruction is viewed in light of all of the court’s instructions.
Armer cites cases in which the court erroneously failed to limit the instruction to the robbery charge, and it was argued the jury would use evidence of the defendant’s possession of stolen property as evidence of guilt of other charged non-theft related crimes. (See People v. Prieto (2003) 30 Cal.4th 226 (Prieto) [defendant charged with rape and murder]; People v. Barker (2001) 91 Cal.App.4th 1166 (Barker) [defendant charged with robbery-murder, kidnapping-murder, and rape-murder special circumstances].) Armer maintains these cases are analogous because he stipulated to the theft-related charges and the evidence of possessing stolen property could not be used to prove the force and fear element of robbery.
As noted by the Attorney General, the cases are distinguishable because Armer was charged only with theft-related crimes, and the cases cited above concern non-theft related crimes like murder or kidnapping. But assuming for the sake of argument the cases are analogous because the element of “force and fear” is not necessarily theft related, we note that in both the Prieto and Barker cases, the court determined the instructional error was held to be harmless. “Jury instructions must be considered in their entirety, and not in isolation. [Citations.]” (People v. Snyder (2003) 112 Cal.App.4th 1200, 1228.) As in the Barker case, here the jury was “informed of its responsibility to evaluate the totality of the evidence, including circumstantial evidence from which inferences may reasonably be drawn and how to weigh such circumstantial evidence . . ., as well as the sufficiency of circumstantial evidence to prove specific intent or mental state . . . . Other instructions cautioned the jury to ‘disregard any instruction which applies to facts determined by you not to exist.’” (Barker, supra, 91 Cal.App.4th at p. 1177.) These courts concluded that in the unlikely event the instruction caused some juror confusion, when the instructions are considered in their entirety there is no possibility the single instruction suggested the jury need not find all the statutory elements of the non-theft related crime had been proven beyond a reasonable doubt. (Ibid.; Prieto, supra, 30 Cal.4th at p. 248 .)
Moreover, in light of the evidence Armer pushed away the security guard in his zeal to escape, it is not reasonably probable a more favorable result would have been reached absent the purported instructional error. (People v. Watson (1956) 46 Cal.2d 818, 836.) It was undisputed Armer’s push had enough force to cause one security guard to fall back onto a second guard, sending them both tumbling to the ground. Armer’s lengthy period of resistance and struggle to keep from being handcuffed by three security guards was additional evidence supporting the force element of robbery. We deem the instructional error, if any, was harmless in this case.
3. Sentencing—Probation
Armer contends the case must be remanded due to the trial court’s error in ruling he was ineligible for probation under section 1203, subdivision (k), because the prosecution failed to plead and prove the facts that rendered him ineligible. We agree.
Section 1203, subdivision (k), provides: “Probation shall not be granted to, nor shall the execution of, or imposition of sentence be suspended for, any person who is convicted of a violent felony, as defined in subdivision (c) of Section 667.5, or a serious felony, as defined in subdivision (c) of Section 1192.7, and who was on probation for a felony offense at the time of the commission of the new felony offense.”
As noted by Armer, the charging document did not allege he was on probation at the time he committed the underlying robbery and thereby ineligible for probation under section 1203, subdivision (k). At trial, Armer admitted his prior theft conviction alleged under count 3 to elevate his misdemeanor petty theft to a felony. However, he did not admit or stipulate he was on probation. The prosecutor did not offer any evidence showing Armer was on probation. At the sentencing hearing, the court relied on the probation report stating Armer was ineligible for probation. The court indicated it did not believe it had discretion to grant probation.
Armer contends a “pleading and proof” requirement must be implied in section 1203, subdivision (k), because the denial of probation is the equivalent to an increase in punishment. He recognizes unlike some statutes governing probation eligibility, section 1203, subdivision (k), does not contain express language requiring the existence of any fact which makes a defendant ineligible for probation be pled and proved. (See §§ 1203.045, subd. (b); 1203.09, subd. (c).) He argues the omission was likely inadvertent and there is persuasive legal authority for finding an implied pleading and proof requirement in criminal statutes. (People v. Lo Cicero (1969) 71 Cal.2d 1186, 1193-1194 (Lo Cicero); People v. Ibarra (1963) 60 Cal.2d 460, 467-468 (Ibarra), abrogated on other grounds in People v. Pope (1979) 23 Cal.3d 412, 425; People v. Huffman (1977) 71 Cal.App.3d 63, 82 (Huffman).) We agree.
Our Supreme Court in the Lo Cicero case, “recognized an implied pleading and proof requirement in the predecessor to Health and Safety Code section 11370, which prohibited probation for any defendant convicted of certain narcotics offenses if the defendant had previously been convicted of a narcotics offense. The statute did not expressly require the prior conviction establishing the defendant’s ineligibility be pleaded and proved, but we recognized an implied pleading and proof requirement under People v. Ford (1964) 60 Cal.2d 772 . . . [overruled on other grounds in People v. Satchell (1971) 6 Cal.3d 28, 36-40] in which ‘[the Supreme Court] held that “before a defendant can properly be sentenced to suffer the increased penalties flowing from . . . [a] finding . . [of a prior conviction] the fact of the prior conviction . . . must be charged in the accusatory pleading, and if the defendant pleads not guilty thereto the charge must be proved and the truth of the allegation determined by the jury, or by the court if a jury is waived.”’ (In re Varnell (2003) 30 Cal.4th 1132, 1140 [no implied pleading requirement where prior conviction did not absolutely deny the defendant the opportunity for probation], quoting Lo Cicero, supra, 71 Cal.2d at pp. 1192-1193.) The Lo Cicero court concluded, “The denial of opportunity for probation involved here is equivalent to an increase in penalty, and the principle declared in Ford should apply.” (Lo Cicero, supra, 71 Cal.2d at p. 1193; Ibarra, supra, 60 Cal.2d at pp. 467-468 [suggesting a prior conviction should be charged in the information when it left “‘no alternative, under the law as it is written, but to impose a state prison sentence’”].)
In People v. Huffman, supra, 71 Cal.App.3d at page 68, the court held “that before a trial court can find a defendant ineligible for probation [and ineligible for a mentally disordered sex offender proceeding (MDSO)] on the basis of a conviction of a prior felony that prior felony must be alleged and proved.” Defendant was found guilty of forcible rape, attempted forcible oral copulation, and assault by means of force. Although the prosecution did not allege a prior felony, this fact was revealed by defendant’s testimony at the mental competency hearing (§ 1368).
In Huffman, the court reasoned, “We feel that if a defendant is going to be found ineligible for probation by reason of a prior felony conviction, it appears only just and fair that the prosecution allege and prove the prior rather than have it come in some casual manner such as a comment in a probation officer’s report. We note that the courts are exercising a solicitude comparable to that of accepting a guilty plea when extracting an admission of the truth of an alleged prior conviction. [Citation.] We note a legislative trend found in . . . section 1203.06, subdivision (b), and . . . section 1203.07, subdivision (b), requiring ineligibility for probation to be based only on pled and proved priors under certain circumstances. In the absence of a definitive determination by the Supreme Court, we hold that to make a finding that a defendant is ‘ineligible’ rather than ‘unsuitable’ the prior must be pled and proved. Therefore, it is necessary to set aside the commitment to state prison and remand this case to the trial court for reconsideration of the MDSO proceedings.” (Huffman, supra, 71 Cal.App.3d at pp. 82-83.)
The court’s observation in Huffman of a legislative trend was correct. The provision discussed by the Supreme Court in Lo Cicero, supra, 91 Cal.2d 1186, was amended to expressly include the probation preclusion be pled and proven. (Health & Saf. Code, § 11370.) And in the respondent’s brief, the Attorney General listed 10 more probation preclusion statutory provisions that expressly state the elements must be pled and proven (§ 1203.044 [probation precluded when theft over $50,000 and § 12022.6 enhancement found true]; § 1203.07 [probation precluded for certain controlled substance offenses]; and § 1203.09 [probation precluded in crimes against handicapped persons or persons over age 60] to name just a few).
The Attorney General correctly points out section 1203 has been amended over 50 times and, as recently as 2006, the Legislature added a provision regarding risk assessment testing for persons convicted of certain sex offenses. (Stats. 2006, ch. 337, § 38, eff. Sept. 20, 2006.) It asserts this court cannot insert language we must assume the Legislature has purposely chosen to omit. But this is an unusual case. Why the Legislature would purposely choose to exclude language from one probation preclusion statute (§ 1203), but not from the dozen or so other statutes containing similar probation ineligibility provisions confounds us. We agree with the Supreme Court’s approach to this due process concern, and recognize an implied pleading and proof requirement exists in section 1203, subdivision (k). The matter must be remanded for resentencing.
The Attorney General argues any error was harmless because the information charged Armer was “previously convicted of a violation of [s]ection 487, [subdivision (c)].” Charged as part of count 3 was the allegation Armer “previously was convicted of a violation of a theft crime and crimes, namely [section] 487[, subdivision (c)], and served a term in a penal institution and was imprisoned as a condition of probation for that offense.” But this portion of the pleading related to the allegation count 3 was a recidivist offense, increasing a misdemeanor petty theft to a felony petty theft with a prior conviction. The prosecution did not plead Armer was on probation when he committed the charged offense or that he was absolutely disqualified from probation because of the prior probation. We cannot infer the elements necessary to render Armer ineligible for probation under section 1203, subdivision (k), were pled.
Alternatively, the Attorney General argues any error was harmless because there is no question Armer’s status as a probationer when he committed the underlying offense would have been found true. At trial, Armer stipulated to having committed the prior alleged in count 3. At the sentencing, he did not contest the allegation in the probation report stating he was in violation of his probation. The Attorney General cites People v. Sanchez (1969) 2 Cal.App.3d 467 (Sanchez) to support the argument this court must undertake a harmless error analysis. We do not agree this is the correct approach.
First, Sanchez, supra, 2 Cal.App.3d 467, is not analogous. In that case, defendant was charged with a narcotics violation and the information alleged he had previously suffered a prior narcotics conviction and served a term in a penal institution. (Id. at p. 478.) Defendant complained the allegation about his prior prison term was surplusage and prejudicial because the jury was informed he served time in prison when in fact he had been committed to the California Rehabilitation Center. (Id. at pp. 479-480.) The court undertook a harmless error analysis to address his assertion the surplusage language was prejudicial. (Id. at pp. 480-481.) It did not consider what approach should be taken for a due process question, when a fact essential to barring probation had not been pled.
The Supreme Court in Lo Cicero did not engage in a harmless error analysis. After holding there was an implied pleading and proof requirement, it found the error warranted reversal of the case. It stated, “[W]e conclude that the trial judge probably did not rule on the merits of defendant’s application for probation, but instead denied defendant’s request for a hearing as to probation because of the prior conviction. In any event, a remand will permit the trial judge to weigh the question of probation free from doubt respecting the interpretation of section 11715.6 and aided by a probation report directed to the true issue rather than ambiguously involved in an irrelevant matter.” (Lo Cicero, supra, 71 Cal.2d at p. 1195, fn. omitted.)
Similarly, in People v. Hernandez (1988) 46 Cal.3d 194 (Hernandez), superseded by statute on another point as noted by People v. Rayford (1994) 9 Cal.4th 1, 8-9, the Supreme Court determined it was unnecessary to “engage in a harmless-error analysis when defendant’s due process right to notice has been so completely violated.” In that case the court held a section 667.8 enhancement was improperly imposed because it was neither pled nor proven. (Hernandez, supra, 46 Cal.3d at pp. 208-209; see also People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247 [without engaging in harmless error analysis the court held, “The record in this case demonstrates there was absolutely no compliance with the pleading and finding requirements of subdivision (d) of section 1203.066. Accordingly, section 1203.066 did not apply to limit the trial court’s discretion in determining whether to grant defendant probation”].) In light of the above, we conclude that because Armer did not receive due process notice he was ineligible for probation, section 1203, subdivision (k), does not apply to limit the trial court’s discretion in determining Armer’s sentence.
D. Count 3 (petty theft with a prior) is a lesser included offense of count 1 (robbery)
In count 3, Armer was convicted of petty theft with a prior theft-related conviction (§§ 484, 666). Based on this same conduct, Armer was also convicted of robbery (§ 211). Armer asserts the conviction for petty theft violates the rule prohibiting multiple convictions and must be reversed. He is right.
The parties agree the statutory elements test is used to determine whether the rule prohibiting double convictions based on necessarily included offenses has been violated. (People v. Reed (2006) 38 Cal.4th 1224, 1231 (Reed).) They also agree the law is well settled that petty theft is a necessarily include offense of robbery, because robbery contains all the elements of theft plus the element of force or fear. (People v. Ortega (1998) 19 Cal.4th 686, 694, disapproved on other grounds by Reed, supra, 38 Cal.4th at p. 1228.) The parties disagree on whether a conviction for petty theft with a prior conviction should be treated differently.
Armer contends the prior conviction requirement in section 666 is not an additional element of petty theft, but only information for the court in determining the punishment to be imposed. (People v. Bouzas (1991) 53 Cal.3d 467 (Bouzas).) On the other hand, the Attorney General argues that because Armer has a right to a jury trial on the issue of whether he suffered a prior conviction, the provision must be deemed an additional element to the petty theft offense. However, this same argument was soundly rejected in People v. Villa (2007) 157 Cal.App.4th 1429 (Villa). That court held a defendant could not be convicted of both robbery and petty theft with a prior arising from the same incident: “[T]he 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 determined by a jury.’ (. . . Bouzas[, supra, ] 53 Cal.3d [at p.] 480 . . . .) Since the prior conviction is not an element, the crime in count 3 was theft, making it a lesser included offense of the robbery in count 1 under Ortega, supra, 19 Cal.4th 686 . . . .” (Villa, supra, 157 Cal.App.4th at pp. 1434-1435.) We note the Attorney General’s analysis and attempts to distinguish the Supreme Court’s holdings in Bouzas is superficial at best, and it completely fails to mention Villa, supra, 157 Cal.App.4th 1429. We agree with the reasoning and analysis of both cases and conclude Armer’s convictions for both robbery and petty theft with a prior conviction, based on the same conduct, violates the rule prohibiting multiple convictions. The conviction for petty theft, count 3, must be stricken rather than stayed under section 654. (Villa, supra, 157 Cal.App.4th at p. 1435.)
E. Sentence on count 2 should be stayed
Armer argues, and the Attorney General agrees, the trial court should have stayed sentence on count 2 under section 654, instead of imposing a concurrent term on that count. (People v. Perry (2007) 154 Cal.App.4th 1521, 1525-1527.) They are right. The abstract of judgment must be amended to reflect the eight-month midterm sentence on count 2 is stayed.
F. The court security fee must be reduced
The trial court imposed a $60 security fee, comprising of $20 for each count of conviction pursuant to section 1465.8. Based on our ruling, the count 3 conviction must be stricken as a lesser included offense of count 1, the fee must be reduced to $40.
III
We direct the trial court to: (1) stay the sentence for burglary on count 2; (2) vacate the petty theft with a prior conviction, count 3; and (3) reduce the court security fee from $60 to $40. The court’s sentence on count 1 is reversed and remanded for a new sentencing hearing because section 1203, subdivision (k), was not properly pled and proven, and therefore, it does not apply to limit the trial court’s discretion in determining whether to grant probation. In all other respects, the judgment is affirmed.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.