Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF118974B, James M. Stuart, Judge.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alison Elle Aleman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Hill, J.
FACTS
In the early hours of the morning, after Victor Torres had played at a nightclub with his band, he was returning to his truck from a taco stand across the street, when he saw defendant and co-defendant, David Vasquez, in his truck, one on each side. Torres ran across the street toward his truck, telling them it was his truck. As he approached defendant, defendant punched Torres in the chin. Torres saw Vasquez hand his CD player to the driver of a Toyota Camry parked nearby. The Camry drove into the street, defendant and Vasquez got into it, and it drove away. Torres attempted to follow. He caught up after officers patrolling nearby observed the Camry run a red light and stopped it. Torres identified defendant and Vasquez as the persons who had taken a musical instrument and a car stereo from his truck. Both items were found in the Camry.
Defendant was convicted of second degree robbery (Pen. Code, § 212.5, subd. (c)) and grand theft (Pen. Code, § 487, subd. (a)). On both counts, he was granted probation on condition that he serve one year in jail, with the sentence on the grand theft count stayed pending successful completion of probation on the robbery count. Defendant appeals, contending that, instead of staying the sentence on the theft count, the trial court should have dismissed the theft count because it was a lesser included offense of robbery. Plaintiff concedes the error.
DISCUSSION
“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment but in no case shall the act or omission be punished under more than one provision.” (Pen. Code, § 654, subd. (a).) “In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct.” (People v. Reed (2006) 38 Cal.4th 1224, 1226.) “A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’” (Id. at p. 1227.)
“Theft is a lesser included offense of robbery. [Citation.] Robbery has the elements of theft plus an additional element, use of force or fear. [Citation.] Therefore, a defendant cannot be convicted of both robbery and theft, arising from the same course of conduct. [Citation.]” (People v. Villa (2007) 157 Cal.App.4th 1429, 1434.) Defendant was convicted of both robbery and theft arising out of the same course of conduct. The trial court erroneously stayed the punishment for the lesser included offense, rather than dismissing that count.
DISPOSITION
The judgment is modified as follows. The conviction of grand theft in count 2 is reversed and that count is dismissed. As so modified, the judgment is affirmed.