IN RE: PATRICK N. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

In August 2010, appellant, Patrick N., a minor, admitted an allegation in a juvenile wardship petition (Welf. & Inst.Code, § 602) that he committed first degree burglary (Pen.Code, §§ 459, 460, subd. (a)), and in September 2010, the court granted deferred entry of judgment (DEJ) (Welf. & Inst.Code, § 790 et seq.).

In December 2010, appellant admitted, and the court found true, allegations in a second wardship petition that appellant committed single counts of receiving stolen property (Pen.Code, § 496, subd. (a)) and petty theft (Pen.Code, § 484, subd. (a)).  In January 2011, at the disposition hearing, the juvenile court adjudged appellant a ward of the court, terminated DEJ, ordered that appellant serve 365 days in the Tulare County Youth Facility, and declared appellant's maximum term of physical confinement to be six years four months, apparently consisting of six years for the burglary adjudicated in the August 2010 proceeding and four months for the instant receiving stolen property adjudication.¹

Appellant contends he was adjudicated of stealing and receiving the same property, and therefore his adjudication of receiving stolen property must be reversed.   Respondent concedes these points.   We will reverse appellant's adjudication of receiving stolen property.

FACTUAL AND PROCEDURAL BACKGROUND

The report of the probation officer prepared in connection with the instant case states that records of the City of Porterville Police Department indicate the following:  Officer Rivera, responding to a report of a theft at Granite Hills High School, learned that an “iPod” had been confiscated from appellant.   Another minor, R.S., told the officer he discovered that his iPod was missing the morning after appellant had spent the night at his house.   Appellant told the officer he had been at R.S.'s residence two days previously and had taken R.S.'s iPod.

The petition in the instant case identifies R.S. as the victim of the theft and alleges that the item of property involved in the receiving stolen property count was an iPod.

DISCUSSION

As the parties agree, the record establishes that appellant stands adjudicated of stealing and receiving the same property, to wit, R.S.'s iPod. And as the parties also agree, a minor may not be adjudicated of stealing and receiving the same property, appellant's receiving stolen property adjudication must be reversed, and the matter must be remanded for a new disposition hearing.  (Cf. People v. Ceja (2010) 49 Cal.4th 1, 3–4 [a theft conviction operates as a bar to a conviction of receiving the same property, and where a defendant has been convicted of both offenses in violation of this rule, the receiving stolen property conviction must be reversed].)   Accordingly, we will reverse appellant's adjudication of receiving stolen property and remand for a new disposition hearing.

DISPOSITION

Appellant's adjudication of receiving stolen property is reversed.   The matter is remanded to the juvenile court for a new disposition hearing.

FOOTNOTES

FN1. It appears the court did not include time for the instant petty theft in the maximum term of physical confinement based on Penal Code section 654..  FN1. It appears the court did not include time for the instant petty theft in the maximum term of physical confinement based on Penal Code section 654.