P. v. Rooters

Filed 9/10/07 P. v. Rooters CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed as modified.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Erika Hiramatsu and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was convicted of grand theft from the person as a lesser included offense of robbery. We reject his claim the trial court erred in failing to instruct sua sponte on theft of lost property. However, we agree with him the court erred in conditioning his probation on his payment of probation costs. We will modify the probation order to delete this condition and affirm the judgment in all other respects.

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Santiago Perez was walking on Harbor Boulevard when appellant pulled up to him in his car with his girlfriend, Ms. Sisomophau.[1] Appellant got out of the car and asked Perez why he was being a wise guy with his girlfriend. He threw Perez on the ground and took a cell phone and about $300 from him. Then he and Sisomophau drove to a nearby Days Inn motel.

About 20 minutes later, Perez reported the incident to some police officers who happened to be in the area. While he was doing so, appellant drove into the parking lot of a nearby liquor store with a male passenger. The officers contacted appellant and found $440 on him. They then searched his car and found Perezs phone under an armrest between the front seats.

Appellant testified he was staying at the Days Inn with Sisomophau and his cousin. Sisomophau left with his car, and when she returned, she said someone had broken into the vehicle and tried to steal the stereo. Appellant joined her in the car, and while they were driving on Harbor, Sisomophau saw Perez and said he was the culprit. They pulled over and appellant verbally confronted Perez, who took off running. Appellant and Sisomophau then drove back to their motel. Along the way, Sisomophau noticed Perezs phone under an armrest between the front seats. Appellant saw the phone there, too, but by his own account, Sisomophau was the one who found it, not him. After dropping off Sisomophau at the motel, appellant drove with his cousin to the liquor store, where he was arrested.

Appellant was charged with second degree robbery. (Pen. Code, 211, 212.5, subd. (c).) The court also instructed on the lesser included offense of grand theft from the person, which is what the jury convicted on. (Pen. Code,  487, subd. (c).) The court suspended appellants prison sentence and placed him on formal probation, a term of which is that he pay the cost of probation based upon [his] ability to pay.

I

Appellant argues the trial court had a sua sponte duty to instruct the jury on the lesser offense of theft of lost property. However, as we explain, such instruction was neither legally required nor factually supported by the evidence.

The trial court must instruct on all necessarily included offenses that find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) To determine whether a lesser offense is necessarily included in the charged offense, one of two tests . . . must be met. The elements test is satisfied when all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense. [Citation.] [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]

Under the accusatory pleading test, a lesser offense is included within the greater charged offense if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed. [Citation.] [Citations.] (People v. Lopez (1998) 19 Cal.4th 282, 288-289.)

Robbery is defined as the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. (Pen. Code,  211.)

Theft of lost property is covered in Penal Code section 485, which states, One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

Theft of lost property is not a necessarily included offense of robbery under the elements test because one may forcibly take property from another an element of robbery without appropriating lost property. And because the information simply parroted the statutory elements of robbery, theft of lost property is not a necessarily included offense under the accusatory pleading test either. Therefore, the trial court did not have a sua sponte duty to instruct on that theory of theft.

Even if theft of lost property were a necessarily included offense of robbery, there was not substantial evidence to support instructions on that offense. By its terms, the crime applies to [o]ne who finds lost property. But appellant testified that Sisomophau was the one who found Perezs phone, not him. Moreover, there is no evidence appellant appropriated the phone to his or anothers use. In fact, when the police found the phone in appellants car, it was right where appellant saw it after Sisomophau pointed it out to him under an armrest between the front seats. There is no evidence appellant so much as touched the phone, let alone appropriated it. So appellant was guilty of one of the crimes upon which the jury was instructed or nothing at all.

Because theft of lost property is not a necessarily included offense of robbery, and because there is not substantial evidence that appellant committed that offense anyway, the trial court was not required to instruct on it.

II

Appellant also challenges the trial courts order requiring him to pay his probation costs. We find the order amounts to an improper condition of probation but is valid as an order entered at the time of judgment.

Unlike orders for restitution and restitution fines which are statutorily required to be included as conditions of probation . . ., attorney fees and costs are not. Courts that have considered the questions have held probation may not be conditioned upon the payment of either sum. (People v. Hart (1998) 65 Cal.App.4th 902, 907.) For example, People v. Bennet (1987) 196 Cal.App.3d 1054, 1056-1057 . . . held the costs of probation imposed pursuant to [Penal Code] section 1203.1b may not be a condition of probation as the costs are collateral and the statute itself provides for enforcement of the order by civil collection. (People v. Hart, supra, 65 Cal.App.4th at p. 907.) Therefore, the trial court erred in conditioning appellants probation on his payment of probation costs. (Ibid.)

The Attorney General concedes as much. However, he correctly notes that while the order requiring appellant to pay probation costs was not a valid probation condition, it was authorized simply [as] an order entered at judgment. (People v. Hart, supra, 65 Cal.App.4th at p. 907.) We agree with the Attorney General that the order should be upheld on that basis. (Ibid.) While appellant complains the court failed to assess his ability to pay before ordering him to pay probation costs, he waived that issue by failing to raise it at the time of sentencing. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072.) Accordingly, the order must stand, not as a condition of probation, but as an order entered at the time of judgment. (People v. Hart, supra, 65 Cal.App.4th at p. 907.)

DISPOSITION

The probation order is modified to delete the requirement that appellant pay the costs of probation. However, the order that appellant pay such costs is affirmed as an order entered as a part of the judgment. As so modified, the judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

OLEARY, J.

FYBEL, J.

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[1] Sisomophaus first name does not appear in the record.