THE PEOPLE v. Marcus Thomas, Defendant and Appellant.

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. Marcus Thomas, Defendant and Appellant.

B219930

Decided: November 22, 2010

Lise M. Breakey, 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, Kenneth C. Byrne and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant and appellant Marcus Thomas appeals from the judgment entered following a jury trial that resulted in his convictions for robbery and grand theft.   Thomas was sentenced to a prison term of 40 years to life.   He contends:  (1) his conviction for grand theft must be stricken, because it is a lesser included offense of robbery;  and (2) the trial court improperly imposed sentence enhancements and sentenced him under the Three Strikes law based on unpleaded prior convictions.   We agree that the grand theft conviction must be reversed.   In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

In the early hours of October 2 9, 2008, Marcel Sawyer was waiting for his bus at a Los Angeles bus stop.   Thomas and another man, Travis Dixon, approached Sawyer, while a woman with orange hair stood nearby.   Dixon asked Sawyer where he was from.   Sawyer replied that he was not a gang member.   Meanwhile, Thomas sat next to Sawyer, went through Sawyer's pockets, and removed Sawyer's wallet.   Dixon threatened to “slap the shit” out of Sawyer if he disobeyed their commands.   When Sawyer attempted to pull a knife from his pocket to protect himself, Thomas grabbed him, causing him to drop the knife.   Thomas stepped on the knife so Sawyer could not retrieve it.   Dixon implied he had a gun by reaching under his shirt while stating he would have “had something for” Sawyer had Sawyer managed to open the knife.   Resigned to the fact the men would rob him, Sawyer said, “ ‘Do what you got to do.’  “ Thomas took Sawyer's wallet, phone, knife, and paperwork;  Dixon took his earring.   Dixon, Thomas, and the orange-haired woman left the bus stop.   Sawyer summoned police, who conducted an investigation and apprehended Thomas and his companions approximately two hours after the incident.

2. Procedure.

Trial was by jury.   Thomas was convicted of second degree robbery (Pen.Code, § 211) 1 and grand theft person (§ 487, subd. (c)).  In a bifurcated proceeding, the jury found Thomas had suffered three prior convictions for robbery and attempted robbery, within the meaning of the Three Strikes law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)).  The trial court denied Thomas's motions for a new trial and to strike the prior conviction allegations.   It sentenced Thomas to 25 years to life on count 1, robbery, plus three 5-year section 667, subdivision (a) serious felony enhancements, for a total of 40 years to life in prison.   Sentence on count 2, grand theft, was stayed pursuant to section 654.   The trial court imposed a restitution fine, a suspended parole restitution fine, a court security assessment, and a criminal conviction assessment.   Thomas appeals.

FACTUAL AND PROCEDURAL BACKGROUND

1. Because grand theft is a lesser included offense to robbery, the conviction on count 2 must be reversed.

As stated ante, Thomas was convicted of both robbery and grand theft.   He urges that because the two crimes arose from the same conduct, and because grand theft is a lesser included offense of robbery, he cannot be convicted of both.   The People concede the point, and we agree.   A defendant may not be convicted of both an offense and a lesser included offense.  (People v. Lewis (2008) 43 Cal.4th 415, 518;  People v. Montoya (2004) 33 Cal.4th 1031, 1034;  People v. Villa (2007) 157 Cal.App.4th 1429, 1434.)   A lesser offense is necessarily included in a greater offense if the statutory elements of the greater offense include all the elements of the lesser offense, so that the greater cannot be committed without also committing the lesser.  (People v. Montoya, supra, at p. 1034 [if a crime “ ‘cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former’ “];  People v. Reed (2006) 38 Cal.4th 1224, 1227-1228;  People v. Busch (2010) 187 Cal.App.4th 150, 160;  People v. Villa, supra, at p. 1434;  People v. Binkerd (2007) 155 Cal.App.4th 1143, 1147.)   To determine whether an offense cannot be committed without necessarily committing the included offense, we look to the statutory definitions of both offenses.  (People v. Reed, supra, at pp. 1228, 1229;  People v. Murray (2008) 167 Cal.App.4th 1133, 1139.)

It is well settled that grand theft is a lesser included offense of robbery.   “Theft in any degree is a lesser included offense to robbery, since all of its elements are included in robbery.   The difference is that robbery includes the added element of force or fear.”  (People v. Burns (2009) 172 Cal.App.4th 1251, 1256;  People v. Ortega (1998) 19 Cal.4th 686, 694;  People v. Sanchez (2003) 113 Cal.App.4th 325, 333 [“ ‘ “Theft, in whatever form it happens to occur, is a necessarily included offense of robbery․  We reaffirm the well-established rule that a defendant may not be convicted of both robbery and grand theft based upon the same conduct” ‘ “].) Thomas's conviction for grand theft must therefore be reversed.  (People v. Medina (2007) 41 Cal.4th 685, 700-702.)

2. Imposition of sentence on uncharged enhancements.

The information was filed on December 1, 2008.   As pertinent here, it alleged Thomas had suffered three serious felony convictions pursuant to the Three Strikes law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1).

After the jury rendered its guilty verdict on the substantive offenses, the People presented evidence establishing that Thomas had suffered two prior convictions for robbery, and one prior conviction for attempted robbery.   The jury found, in a separate verdict form, that Thomas had suffered the prior convictions.

The clerk's transcript on appeal originally included only the first two pages of the December 1, 2008 information, omitting those pages containing the prior conviction allegations.   Based upon this record, in his opening brief Thomas argued that imposition of sentence pursuant to the Three Strikes sentencing scheme, and imposition of the three section 667, subdivision (a) enhancements, was improper.   He argued that, because neither the enhancements nor the Three Strikes allegations were pleaded in the information, he was not provided with constitutionally adequate notice.   Thus, the sentence imposed violated his due process rights.  (See People v. Mancebo (2002) 27 Cal.4th 735, 750, 754;  see also § 1170.1, subd. (e).)

After Thomas's opening brief was filed, at the People's request the record was supplemented with a certified copy of the complete information, including the pages containing the prior conviction allegations.   Because the prior conviction allegations were, in fact, pleaded in the original information, Thomas's contentions lack factual support and are therefore meritless.

DISPOSITION

The judgment on count 2, grand theft, is reversed.   The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections.   In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further undesignated statutory references are to the Penal Code..  FN1. All further undesignated statutory references are to the Penal Code.

KLEIN, P. J. CROSKEY, J.