In re K.M.
Filed 5/31/07 In re K.M. CA3
NOT TO BE PUBLISH
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
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In re K.M., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. K.M., Defendant and Appellant. | C050201 Superior Ct. Nos. J61750 J100273 |
Following a contested jurisdictional hearing, the San Joaquin County Juvenile Court found that minor K.M. was a person described in Welfare and Institutions Code section 602 in that he committed the offenses of carjacking (Pen. Code, 215, subd. (a)), robbery (Pen. Code, 211), vehicle theft (Veh. Code, 10851, subd. (a)), and receiving stolen property, to wit, the vehicle (Pen. Code, 496d, subd. (a)).[1]
On appeal, the minor contends the juvenile court erred by sustaining allegations for both vehicle theft and receiving a stolen vehicle over defense objection. The People concede the error. We accept the concession, and find an additional sentencing error requiring correction.
I.
The minor contends the juvenile court erred in sustaining allegations for theft and receiving the same vehicle. We agree.[2]
The minor demanded the keys to a pickup truck from the driver at a Stockton gas station. The minor then gave the keys to Reginald B., who drove both of them away in the truck. Several hours later, a Stockton resident heard a scrape in front of his house and discovered the minors. The truck had two flat tires. The resident detained the minors and called the police.
Trial counsel for Reginald B. argued that a person could not be convicted of taking and receiving the same property. The juvenile court asked for authority for that proposition, which counsel said he would provide. Nevertheless, the juvenile court relied upon CALJIC No. 14.65 and People v. Allen (1999) 21 Cal.4th 846, 857, authority permitting dual conviction for burglary and receiving stolen property, and concluded: I dont [see] why auto theft and 496 would be treated any differently. The juvenile court erred.
Penal Code section 496, subdivision (a) provides, in relevant part: A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property. The comments to CALJIC No. 14.65 quote this section.
The minor was found to have violated Penal Code section 496d which specifically refers to vehicles, and does not restate the above language barring dual conviction. Nevertheless, this principle is well-settled in case law and applies here.
In People v. Garza (2005) 35 Cal.4th 866, 871, our Supreme Court reaffirmed that common law prohibits separate convictions of the same person for stealing and receiving the same property. When the violation of Vehicle Code section 10851 and receiving stolen property is based specifically on the act of taking the vehicle, the general prohibition of dual conviction for theft and receiving applies. (Id. at p. 881.)
The juvenile courts unfamiliarity with this settled law is troubling. The juvenile courts reliance upon a burglary case and instruction was clearly erroneous because burglary is not just a theft offense. Accordingly, we reverse the true finding on the receiving stolen property allegation and order it dismissed.
II.
Our review of the record reveals that the juvenile court imposed an inapplicable penalty assessment as a probation condition. We shall correct the order.
At the disposition hearing, the juvenile court removed the minor from the home and put him on probation under a variety of conditions, including general placement, payment of a $100 restitution fine and, over trial counsels objection, a $10 penalty assessment. (Welf & Inst. Code, 730.6, subd. (b)(1); Gov. Code, 76104.6, subd. (a).)
Government Code section 76104.6, subdivision (a), provides in part, For the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of one dollar for every ten dollars ($10) or fraction thereof in each county[.] Like Government Code section 76000, Government Code section 76104.6, subdivision (a), provides that its assessment shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code[.]
Penal Code section 1464 is the penalty assessment statute applicable to various fines in adult court. However, Welfare and Institutions Code section 730.6, subdivision (f), specifically provides that juvenile restitution fines are not subject to penalty assessments pursuant to Section 1464 of the Penal Code. Welfare and Institutions Code section 730.6 provides for a restitution fine in juvenile cases which is akin to the restitution fine for adult cases set forth in Penal Code section 1202.4.
People v. McHenry (2000) 77 Cal.App.4th 730, 734, barred penalty assessments under Government Code section 76000 that are collected under Penal Code section 1464 from imposition upon adult restitution fines. (Accord, People v. Allen (2001) 88 Cal.App.4th 986, 992.) This reasoning should similarly bar a penalty assessment under Government Code section 76105.6 collected under Penal Code section 1464 from imposition upon a juvenile restitution fine.[3]
The mandatory restitution fine imposed under Welfare and Institutions Code section 730.6, subdivision (b), is simply not subject to any penalty assessments under Penal Code section 1464. (In re Steven F. (1994) 21 Cal.App.4th 1070, 1077, fn. 5.)
We conclude that imposition of the $10 penalty assessment is an unauthorized sentence and shall modify the judgment accordingly.
DISPOSITION
The judgment is modified. The true finding on the allegation of receiving a stolen vehicle (Pen. Code, 496d, subd. (a)) is reversed and the allegation is dismissed. The $10 penalty assessment on the restitution fine (Gov. Code, 76104.6) is stricken. The clerk of the juvenile court shall prepare a revised minute order including the applicable probation conditions and forward a certified copy to the San Joaquin County Probation Officer. As so modified, the judgment is affirmed.
MORRISON , J.
We concur:
SIMS , Acting P.J.
HULL, J.
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[1] The minors codefendant was Reginald B., who was found to have committed the same offenses at the same hearing. (In re Reginald B. (May 5, 2006, C050006) [nonpub. opn.].)
[2] Because we reach the merits of the claim, we need not discuss the minors initial argument that the unpublished decision in In re Reginald B., supra [nonpub. opn.], deciding the same issue has a collateral estoppel effect.
[3] This argument was raised in codefendant Reginald B.s case and conceded by the People. It was not raised in this case. We assume imposition of this penalty assessment is an unauthorized sentence. (People v. Scott (1994) 9 Cal.4th 331, 354 [[A] sentence is generally unauthorized where it could not lawfully be imposed under any circumstances in the particular case.].) Any party aggrieved by this finding may file a petition for rehearing under Government Code section 68081.
