People v. Tatem

[657]

Opinion

AULT, J.

Defendant Carl Maxwell Tatem was charged by information with burglary of five business establishments located in the northern area of San Diego County in violation of Penal Code section 459. He waived a jury trial, and the case was submitted by stipulation on the transcript of the preliminary hearing. The trial court concluded Tatem had not committed burglary but found him guilty of five counts of petty theft, as lesser included offenses of the burglaries charged in the information. Before judgment was pronounced, Tatem moved to dismiss, arguing both orally and by written points and authorities that his conviction was improper because theft is not a lesser included offense in the crime of burglary. The trial court denied the motion, suspended the imposition of sentence and placed Tatem on, probation for three years, conditioned upon his making restitution and paying a $1,500 fine.

On appeal Tatem raises the same issue he urged in the trial court, We conclude the judgment must be reversed because the offenses of which Tatem was convicted (petty thefts) were not included within the charges made in the information (burglaries).

Discussion

Except for the dates and the names of the business establishments alleged to have been entered, all five counts of the information charged burglary in identical language. Count One of the information read: “On or about 3/31/75 Carl Maxwell Tatem did unlawfully enter a building, Snyder’s Bakery, with intent to commit theft, in violation of Penal Code section 459.”

Penal Code section 1159 provides: “The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged,...”

Charged with burglaries and convicted of petty thefts, Tatem’s convictions can be upheld only if petty theft is a necessarily included offense of the offense of burglary. As stated in

People

v.

Cannady,