Opinion
F050344
12-5-2006
THE PEOPLE, Plaintiff and Respondent, v. KEVIN LERENZO HOKES, Defendant and Appellant.
OPINION
THE COURT
Before Wiseman, Acting P.J., Cornell, J., and Kane, J.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stan Cross and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
On April 7, 2004, a jury found appellant, Kevin Lerenzo Hokes, guilty of second degree burglary (Pen. Code, § 459, count one), petty theft with a prior conviction (Pen. Code, § 666, count three), and grand theft (Pen. Code, § 487, subd. (a), count four). In a bifurcated proceeding, Hokes admitted a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (d)-(g) & 1170.12) and a prior prison term enhancement (§ 667.5, subd. (b)).
All statutory references are to the Penal Code.
The trial court sentenced Hokes to prison for the low term of 16 months for burglary, which it doubled pursuant to the three strikes law. The court stayed sentences for petty theft with a prior and for grand theft. The court imposed a one-year consecutive term for the prior prison term enhancement for a total sentence of three years eight months. The court imposed a restitution fine and granted applicable custody credits.
On appeal, Hokes contends, and respondent concedes, that his conviction for petty theft with a prior conviction must be reversed.
FACTS
Jon Alley was the manager of a Ross store in Stanislaus County. On January 29, 2004, Hokes and codefendant Kenneth Kaseem Lowman were walking together with a cart full of clothing past the register. A cashier told Lowman to hold on and asked him where he was going with the cart. Lowman pushed the cart past a sensor system that was then triggered, sounding an alarm.
Alley saw Hokes and Lowman at the door while they were maneuvering the cart away. The cart, however, was equipped with a steel pole welded to make it more difficult to take the cart outside the store. A video surveillance recording shown to the jury showed Hokes with Lowman entering the store, coming from the back of the store, and exiting the store about three feet behind Lowman after Lowman rammed the cart against the doorway until he bent the pole enough to leave with the car. The value of the merchandise taken was between $700 and $800.
An off-duty sheriffs deputy confronted Lowman, asked him what he and Hokes were doing and identified himself. Lowman yelled an epithet. Hokes walked toward the curb, started cussing, walked past Alley, said he was not with Lowman, and started running away. Lowman also fled. Alley and the deputy noticed a third man, codefendant Leandre Dummar Jordan in the drivers seat of a car in which the stolen clothes had been placed. The steering column and ignition of the car had been destroyed. The car was later determined to be stolen. Hokes was found behind a church across the street from the store. He asserted he had nothing to do with the theft. Neither Hokes nor Lowman had any money.
DISCUSSION
The parties concur that petty theft with a prior conviction is a lesser included offense of grand theft. A defendant may not be convicted of a lesser offense necessarily included within a greater offense based upon his or her commission of the identical act. A lesser included offense is necessarily included in the greater offense if either the statutory elements of the greater offense, or the facts alleged in the accusatory pleading, include all of the elements of the lesser offense, such that the greater offense cannot be committed without also committing the lesser offense. (People v. Sanchez (2001) 24 Cal.4th 983, 987-988.) Petty theft is a lesser and necessarily included offense of grand theft. (Gomez v. Superior Court (1958) 640, 643-647; People v. McElroy (1897) 116 Cal. 583, 584, 587; People v. Shoaff (1993) 16 Cal.App.4th 1112, 1116 (Shoaff).)
Petty theft, even when charged as petty theft with a prior conviction, is still a lesser included offense of grand theft. (Shoaff, 16 Cal.App.4th at p. 1116.) The conduct for which Hokes was convicted in counts three and four was the same criminal conduct. The proper remedy on appeal when a defendant is convicted of both a greater and a lesser offense for the same criminal conduct is to reverse the defendants conviction for the lesser offense. (People v. Pearson (1986) 42 Cal.3d 351, 355.)
DISPOSITION
Hokess conviction in count three for petty theft with a prior conviction is reversed. The case is remanded for the trial court to prepare an amended abstract of judgment reflecting that Hokes was not convicted of count three and to forward it to the appropriate authorities. In all other respects, the judgment is affirmed.