People v. Burgan CA4/1 ( 2014 )

Filed 1/7/14 P. v. Burgan CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064075
Plaintiff and Respondent,
v. (Super. Ct. No. SCN314662)
STEELE ANDREW BURGAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kathleen
M. Lewis, Judge. Affirmed as modified with directions.
Alex Kreit, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
In January 2013, Steele Andrew Burgan entered a shop, held a knife to the owner's
face and ordered her to give him money. The owner ran out of the shop. Burgan then ran
out. When the owner returned to the shop, she found her cash drawer damaged and more
than $200 missing. Sheriff's deputies apprehended Burgan and found the money on his
person.
A jury found Burgan guilty of robbery with personal use of a deadly weapon (Pen.
Code, §§ 211 & 12022, subd. (b)(1);1 count 1), burglary (§ 459; count 2), misdemeanor
petty theft (§ 484; count 3) and misdemeanor vandalism (§ 594, subds. (a) & (b)(2)(A);
count 4). The court sentenced him to four years in prison: the three-year middle term for
robbery and one year for the enhancement, a stayed term for burglary (§ 654) and credit
for time served on the misdemeanor counts. Burgan appeals, contending the petty theft
conviction must be reversed because that crime is a lesser included offense of robbery,
and accordingly the court operations assessment (§ 1465.8) must be reduced by $40 and
the court facilities assessment (Gov. Code, § 70373) must be reduced by $30.
Respondent properly concedes these points.
"Theft in any degree is a lesser included offense to robbery, since all of its
elements are included in robbery." (People v. Burns (2009) 172 Cal. App. 4th 1251,
1256.) When two charged offenses are based on the same criminal act or course of
conduct and, according to the statutory elements test, one offense is a lesser included
offense of the other, the defendant cannot be convicted of both offenses. (People v. Reed
1 Statutory references are to the Penal Code unless otherwise specified.
2
(2006) 38 Cal. 4th 1224, 1226, 1231.) Here, the petty theft count and the robbery count
were based on the same course of conduct. The conviction of petty theft must therefore
be reversed. (People v. Villa (2007) 157 Cal. App. 4th 1429, 1435.)
The court operations assessment is $40 for every criminal conviction. (§ 1465.8,
subd. (a)(1).) The court facilities assessment is $30 for each felony or misdemeanor
conviction. (Gov. Code, § 70373, subd. (a)(1).) The court imposed one of each of these
assessments for each of Burgan's four convictions.
DISPOSITION
The judgment is modified by striking the conviction of petty theft (§ 484; count 3),
by reducing the court operations assessment (§ 1465.8) by $40 and by reducing the court
facilities assessment (Gov. Code, § 70373) by $30. As so modified, the judgment is
affirmed. The trial court is directed to prepare an amended abstract of judgment and
forward it to the Department of Corrections and Rehabilitation.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
3