People v. Perez CA2/3

Filed 4/29/15 P. v. Perez CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B258487

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA104130) v.

MARISA PEREZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Jr., Judge. Affirmed in part; reversed in part. Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent. _______________________________________

Appellant Marisa Perez appeals from the judgment entered after a jury found her guilty of robbery, burglary, and petty theft arising out of the theft of merchandise from a Macy’s department store. She argues that (1) the petty theft conviction must be stricken as a necessarily lesser included offense of robbery, and (2) she should be resentenced to a misdemeanor on the burglary conviction. We agree with the first argument. As for the second argument, Perez must first petition the trial court for resentencing under Penal Code section 1170.18. FACTUAL AND PROCEDURAL BACKGROUND On December 23, 2013, Perez picked up some men’s fragrances in a Macy’s department store and handed them to her husband who put the items in a bag. The couple then left the store without paying for the merchandise. Outside the store, a Macy’s loss prevention detective, Juan Juarez, attempted to escort the husband back into Macy’s. The husband pushed Juarez and there was a struggle. The bag containing the stolen merchandise fell to the floor. The husband then fled. Perez picked up the bag and tried to walk by Juarez. He told her to go back into the store. Juarez grabbed Perez’s arm and Perez tried to pull away from him. With the assistance of additional security officers, Perez was taken back to Macy’s and detained. Perez was charged with and convicted of three felonies: second degree robbery of Juarez (Pen. Code, § 211), second degree commercial burglary (Pen. Code, § 459), and petty theft from Macy’s with three prior convictions (Pen. Code, §§ 484, subd. (a) & 666, subd. (a)). The trial court imposed a total prison term of four years. Perez timely appealed. DISCUSSION 1. The Theft From Macy’s Was A Lesser Included Offense to the Robbery of Juarez Perez contends, and the Attorney General concedes, that the conviction for petty theft must be stricken because it is a necessarily lesser included offense of robbery on the facts here. Although “it is generally permissible to convict a defendant of multiple charges arising from a single act or course of conduct (citation) . . . a ‘judicially created