People v. Tatem

• Decision Date: 07 October 1976
• Docket Number: Cr. 8286
• Citation: 133 Cal.Rptr. 265,62 Cal.App.3d 655
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Carl Maxwell TATEM, Defendant and Appellant.

Page 265

133 Cal.Rptr. 265

62 Cal.App.3d 655

The PEOPLE of the State of California, Plaintiff and Respondent, v. Carl Maxwell TATEM, Defendant and Appellant.

Cr. 8286.

Court of Appeal, Fourth District, Division 1, California.

Oct. 7, 1976.

[62 Cal.App.3d 656] James B. Burns, Oceanside, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Karl J. Phaler and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

AULT, Associate Justice.

Defendant Carl Maxwell Tatem was charged by information with burglary of five business establishments located in the northern area of San Diego County in violation of Penal Code section 459. He waived a jury trial, and the case was submitted by stipulation on the transcript of the preliminary On appeal Tatem raises the same issue he urged in the trial court. We conclude the judgment must be reversed because the offenses of which Tatem was convicted (petty thefts) were not included within the charges made in the information (burglaries).

hearing. The trial court concluded Tatem had not committed burglary but found him guilty of five counts of petty theft, as lesser included offenses of the burglaries charged in the information. Before judgment was pronounced, Tatem moved to dismiss, arguing both orally and by written points and authorities that his conviction was improper because theft is not a lesser included offense in the crime of burglary. The trial court denied the motion, suspended the imposition of sentence and placed Tatem on probation for three years, conditioned upon his making restitution and paying a $1,500 fine.

DISCUSSION

Except for the dates and the names of the business establishments alleged to have been entered, all five counts of the information charged burglary in identical language. Count One of the information read:

'On or about 3/31/75 CARL MAXWELL TATEM did unlawfully enter a building, Snyder's Bakery, with intent to commit theft, in violation of Penal Code section 459.'

Penal Code section 1159 provides:

'The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, . . ..'

Charged with burglaries and convicted of petty thefts, Tatem's convictions can be upheld only if petty theft is a necessarily included offense of the offense of burglary. As stated in People v. Cannady, 8 Cal.3d 379, 389, 105 Cal.Rptr. 129, 136, 503 P.2d 585, 592:

'A defendant cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information whether or not there was evidence at his trial to show that he had committed that offense. (Citation.)'

Under well established California law, a necessarily included offense exists when the charged offense, either as defined by statute or as stated in the accusatory pleading, Cannot be committed without also committing a lesser included offense. (People v. Escarcega, 43 Cal.App.3d 391, 396, 117 Cal.Rptr. 595; see also People v. Cannady, supra, 8 Cal.3d 379, 390, 105 Cal.Rptr. 129, 503 P.2d 585; People v. St. Martin, 1 Cal.3d 524, 536, 83 Cal.Rptr. 166, 463 P.2d 390.)

By statutory definition, petty theft (or theft of any kind) is not a necessarily included offense of burglary because burglary can be committed without committing theft ¹ (see People v. Epps, 34 Cal.App.3d 146 and cases cited at p. 164, 109 Cal.Rptr. 733). Nor is petty theft a necessarily included offense under the accusatory pleading in this case, since the information nowhere alleges Tatem stole or took away the property of another.

The People's reliance upon People v. Marshall, 48 Cal.2d 394, 309 P.2d 456, and People v. Collins, 54 Cal.2d 57, 4 Cal.Rptr. 158, 351 P.2d 326, is misplaced. Unlike the information in this case, the accusatory pleading in Marshall, though charging robbery, alleged all the elements of the included offense of which the defendant was convicted. Collins involved Penal Code section 261 (rape), and the distinguishing feature was that the subdivisions of the section do not state different offenses but rather describe the...