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

The PEOPLE, Plaintiff and Respondent, v. Robert Michael LOHBAUER, Defendant and Appellant.

Cr. 35947.

Decided: June 20, 1980

Charles L. Cassy, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and Roy C. Preminger, Deputy Attys. Gen., for plaintiff and respondent.

By information, defendant was charged with committing the felony offense of burglary (Pen.Code, s 459). In a nonjury trial, defendant was found guilty of violating section 602.5 of the Penal Code (entering a noncommercial dwelling without the owner's consent). The trial court considered that it was finding defendant guilty of a lesser and necessarily included offense within the felony offense of burglary. Defendant appeals from the judgment of conviction.

On appeal from the judgment (order granting probation), defendant contends that the judgment must be reversed because violation of Penal Code section 602.5 is not a lesser and necessarily included offense within the felony offense of burglary. Hence, his conviction thereof constituted an acquittal of the charge of burglary.


A Brief Summary of the Facts and Procedure Leading to Defendant's Conviction

On September 15, 1978, about 3 a. m., Laura Memoli, a daughter of Robert Memoli, awakened in the bedroom of their home at 3590 Waco Street in Simi, California, and saw defendant standing in a hallway thereof. She asked him what he wanted; he did not answer but simply walked out of the house. She had never seen him previously, and no one gave him permission to enter the house. In his defense, defendant testified that he was drunk and mistakenly believed that he was entering the house of an acquaintance who had invited him to visit; he said that he realized the mistake when he saw Miss Memoli and immediately left the house.

Over defendant's objection, the court found him guilty “of the misdemeanor offense of entering a non-commercial dwelling without the consent of the owner, a violation of section 602.5 of the Penal Code, a lesser and necessarily included offense within the crime of burglary, . . . as alleged in . . . the information.”


The Offense of Violating Penal Code Section 602.5 Is not a Lesser and Necessarily Included Offense Within the Felony Offense of Burglary

The People concede that a violation of Penal Code section 602.5 is not a lesser and necessarily included offense within the felony offense of burglary since a burglarious entry may be made with consent of the owner of the premises. A nonconsensual entry into premises (Pen.Code, s 602.5) is thus not an essential ingredient of a burglary. (People v. Pendleton (1979) 25 Cal.3d 371, 382, 158 Cal.Rptr. 343, 599 P.2d 649; People v. Wetmore (1978) 22 Cal.3d 318, 327, fn. 8, 149 Cal.Rptr. 265, 583 P.2d 1308; People v. Yoder (1979) 100 Cal.App.3d 333, 339-340, 161 Cal.Rptr. 35.)


Conviction of Penal Code Section 602.5 An Offense not Included Within Burglary Bars a Retrial of Both the Burglary and the Penal Code Section 602.5 Violation

The People also concede that, since defendant did not request or acquiesce in his conviction of violating Penal Code section 602.5 as a lesser and necessarily included offense, the trial court lacked jurisdiction to convict him of such noncharged offense. (People v. West (1970) 3 Cal.3d 595, 612, 91 Cal.Rptr. 385, 477 P.2d 409.)

Nevertheless, the People advance the theory that the cause must be remanded to the trial court with directions to either convict or acquit defendant of the felony offense of burglary, or, in the alternative, that defendant's misdemeanor conviction be set aside without prejudice to a retrial of defendant for committing the misdemeanor offense of a violation of Penal Code section 602.5.

The legal principle is clear that defendant's conviction of violating Penal Code section 602.5 even though erroneously considered by the trial court to be the conviction of a lesser and necessarily included offense within the burglary charge constituted an acquittal of the burglary charge. (In re Stanley E. (1978) 81 Cal.App.3d 415, 422, 146 Cal.Rptr. 232; see also In re Hess (1955) 45 Cal.2d 171, 176, 288 P.2d 5; People v. Tatem (1976) 62 Cal.App.3d 655, 658-659, 133 Cal.Rptr. 265.) It follows that defendant cannot be tried again for the burglary offense.

We consider then the position of the People that defendant can be retried on the misdemeanor charge of having violated Penal Code section 602.5, if an accusatory pleading is filed alleging the commission of such offense. We hold that such a retrial cannot be undertaken when, as here, the prosecution was, or should have been aware, at the time the felony burglary offense was charged, that more than one offense was involved in which the same act or course of conduct played a significant part. Under such circumstances, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause; and a failure to unite all such offenses in a single proceeding will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction of any such offense. (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827, 48 Cal.Rptr. 366, 409 P.2d 206.)

In support of their position the People contend that the evidence introduced at defendant's preliminary examination[FN1] put defendant on notice that he might have to defend against a charge of violating Penal Code section 602.5. But this same evidence should have made the prosecution aware of the fact that, when the information was filed, a charge of violating Penal Code section 602.5 could have been joined with the burglary charge. Penal Code section 954 makes provision for joinder of offenses “connected together in their commission . . . or . . . of the same class of crimes or offenses, under separate counts, . . . ”

The principle of joinder of felony and misdemeanor charges has been set forth unambiguously in the following language: “Before Kellett v. Superior Court (citation), the law was generally understood to prohibit joinder of misdemeanor and felony counts in an accusatory pleading for prosecution in the superior court. In Kellett, the court pointed out Penal Code section 954, providing for joinder of offenses, makes no distinction between felony and misdemeanor charges. Where misdemeanor and felony offenses are connected in their commission, or by a common element of substantial importance in their commission, the court interpreted section 954 as not only permitting joinder but, in effect, requiring it. It held separate prosecution of one such offense, resulting in either acquittal or conviction and sentence, would bar subsequent prosecution of the other offense.” (People v. Brown (1970) 10 Cal.App.3d 169, 173-174, 88 Cal.Rptr. 801, 804, fn. omitted.)

In the case before us, it is also of significance that, since the incident allegedly occurred on September 15, 1978, prosecution for violation of Penal Code section 602.5 (a misdemeanor) is barred by the one-year statute of limitations set forth in Penal Code section 801. (See People v. Tatem, supra, 62 Cal.App.3d at pp. 658-659, 133 Cal.Rptr. 265.)

The conclusion is thus inescapable that future prosecution of the defendant in the case at bench for a violation of Penal Code section 602.5 predicated on the same incident referred to in the information is barred.[FN2] (People v. Tatem, supra, 62 Cal.App.3d 655, 133 Cal.Rptr. 265; Kellett v. Superior Court, supra, 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206.)

The judgment is reversed with directions to the trial court to enter a judgment of acquittal of the burglary charge and of the charge of violating Penal Code section 602.5.


1.  During the appeal the People moved for (and we granted) augmentation of the record to include a transcript of defendant's preliminary examination.

2.  The information alleged: “The District Attorney of the County of Ventura hereby accuses Robert Michael Lohbauer of the crime of violation of Section 459 of the Penal Code in that on or about September 15, 1978, in the County of Ventura, State of California, he entered the house of Robert Memoli, located at 3590 Waco, Simi, California, with intent to commit theft.”

JEFFERSON, Presiding Justice.

HANSON and NEWMAN,[FN*] JJ., concur.