People v. Braley, B199140 (Cal. App. 8/14/2008)

• Decision Date: 14 August 2008
• Docket Number: B199140
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. THOMAS BRALEY, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. THOMAS BRALEY, Defendant and Appellant.

B199140

Court of Appeal of California, Second Appellate District, Division Three

August 14, 2008

Not to be Published

Appeal from a judgment of the Superior Court of Los Angeles County, No. BA296474, Judith Champagne, Judge. Affirmed as modified.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

KLEIN, P. J.

Defendant and appellant, Thomas Braley, appeals from the judgment entered following his conviction, by jury trial, for robbery and petty theft with a prior, with prior serious felony conviction findings (Pen. Code, §§ 211, 666, 667, subd. (a)-(i)).¹ Sentenced to state prison for 35 years to life, Braley claims there was trial error.

The judgment is affirmed as modified.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we find the evidence established the following.

On January 15, 2006, inside a Rite Aid store on Broadway in Los Angeles, store employee Juan Soto let defendant Braley examine a digital camera. Soto then began to assist another customer. When Soto noticed Braley going toward an exit without having stopped at a register, he asked Braley if he had returned the camera. Braley said he had given it to a female employee, but the woman said that wasn't true.

Soto asked the store security guard to stop Braley. The guard saw the camera in Braley's hand and asked him to give it back, but Braley walked out the door with it. As Soto and the guard followed Braley down Broadway, Braley turned and lifted his shirt. Soto saw the handle of a gun in Braley's waistband. Braley told them not to touch him because he had a gun. The two store employees flagged down a patrol car. When the officers searched Braley, they discovered a toy pistol in his waistband.

The prosecution presented certified prison records showing that Braley had been convicted of the following crimes: second degree burglary (1989); grand theft (1991); attempted robbery (1993); grand theft (1996); second degree robbery (2002); petty theft with a prior (2004).

CONTENTION

Braley was improperly convicted of both robbery and petty theft with a prior for the same act.

DISCUSSION

Braley was improperly convicted of both a greater and a lesser included offense.

Braley contends his conviction for petty theft with a prior must be reversed because it is a necessarily lesser included offense of his conviction for robbery. As the Attorney General properly concedes, this claim has merit.

Multiple convictions may not be based on necessarily included offenses. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) "In most cases `this court has . . . affirmed multiple convictions for a single act or indivisible course of conduct,' leaving it to the sentencing court to determine whether to stay execution of sentence on one or more convictions pursuant to section 654 in order to avoid multiple punishment for the same act. [Citation.] A defendant, however, cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act. [Citation.]" (People v. Sanchez (2001) 24 Cal.4th 983, 987, disapproved on other grounds by People v. Reed (2006) 38 Cal.4th 1224, 1228.) "[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former." (People v. Lopez (1998) 19 Cal.4th 282, 288.)

People v. Ortega (1998) 19 Cal.4th 686, 699-700, disapproved on other grounds by People v. Reed, supra, 38 Cal.4th at p. 1228, held a defendant could not be convicted of both robbery and theft for taking the victim's van during a single course of conduct. And People v. Villa (2007) 157 Cal.App.4th 1429, 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.' (People v. Bouzas (1991) 53 Cal.3d 467, 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 . . . ." (Id. at pp. 1434-1435.)

As the parties here properly conclude, Braley was improperly convicted of both robbery and petty theft with a prior. Therefore, we will modify the judgment by vacating the conviction...