P. v. Miller

Filed 7/25/06 P. v. Miller CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Brett Miller appeals his conviction by jury verdict of one count of attempted robbery, (Pen. Code, §§ 664, 212.5, subd. (c))^[1] two misdemeanor counts of unlawfully resisting an officer (§ 148, subd. (a)(1)), and two misdemeanor counts of battery on an officer (§ 243, subd. (b)). He contends the convictions of resisting an officer must be reversed because the same acts form the bases of the convictions for battery on an officer. He also contends the probation condition that he pay probation costs was error because it was imposed without a finding of ability to pay.

DISCUSSION

I. Resisting/Battery on an Officer

Because appellant does not challenge the attempted robbery conviction, and because the People concede that the counts of resisting a police officer and battery on a police officer are based on the same conduct, only a brief factual recitation is necessary.

The incident giving rise to the convictions began when appellant demanded money of two pedestrians walking in a commercial neighborhood. As they started to run away, appellant grabbed one of them firmly by the shoulders and pushed him into the street. These pedestrians escaped, appellant started to chase them, and a third pedestrian yelled at him to stop. Appellant then demanded money of the third pedestrian, who shouted to other passersby to call the police. Appellant and the third pedestrian scuffled, and the pedestrian sat on appellant until the police arrived.

Two uniformed police officers responded. Appellant resisted their efforts to handcuff him by pulling his arms away and lifting his legs off the ground. He escaped the officers' grasp, and as one officer grabbed him, he lost his balance, causing him and the officer to fall backwards onto a bench, with appellant landing on top of the officer. The second officer radioed for back-up. Appellant continued to struggle when the back-up officers arrived. Eventually the officers were able to handcuff him.

Given this factual scenario, and the fact the prosecutor never argued that the resisting and battery counts were based on different conduct, the People acknowledge that appellant's convictions for resisting an officer must be reversed.

We agree. A defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense based on the same act. (People v. Sanchez (2001) 24 Cal.4th 983, 987.) Resisting a police officer is a lesser included offense of battery on a police officer. (People v. Jones (1981) 119 Cal.App.3d 749, 755; People v. Perkins (1970) 9 Cal.App.3d 1048, 1051.) Here, appellant's same conduct--struggling with the officers as they tried to apply handcuffs to him--constituted both the resisting and the battery. Therefore, his two convictions for resisting an officer, counts four and five, must be reversed. (See People v. Ortega (1998) 19 Cal.4th 686, 700.)

II. Probation Costs

Section 1203.1, subdivision (a) authorizes a court to impose fines when it suspends the imposition or execution of sentence. Section 1203.1b specifically authorizes the recoupment of certain costs incurred for probation and preparation of presentence investigation and reports on the defendant's amenability to probation. It also requires a determination of amount and ability to pay, first by the probation officer, and a separate evidentiary hearing and determination of amount and ability by the court, unless the defendant makes â€