1 Filed 7/30/13 In re F.P. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

In re F.P., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,

v. F.P., Defendant and Appellant. A137346
(Alameda County Super. Ct. No. SJ10014046)

This is an appeal from a dispositional or der after the juvenile court sustained findings that appellant F.P., born in Augu st 1995 (hereinafte r, minor), committed one felony count of first degree robbery and one fe lony count of receiving stolen property. Minor contends, and the People agree, that this order must be vacated because the juvenile court erred in finding that he commi tted, with respect to the same property, the separate offenses of robbery and of receiving stolen property. For reasons stated below, we likewise agree the juvenile court erred in sustaining both counts against minor, and thus reverse the dispositional order.

FACTUAL AND PROCED URAL BACKGROUND The facts of this case are undisputed. On October 4, 2012, students B.N., J.T., and minor, among others, boarded an AC Transit bus after school. During the bus ride, J.T. – a known bully and gang member with a repu tation for violence – approached minor and2 told him if he did not get B.N.’s gold neckl ace for J.T., “it would be bad.” Minor felt threatened by J.T., so he ap proached B.N., who was weari ng the necklace, and grabbed and pulled it from behind. The necklace broke at the clasp, and B.N. tried to hold onto it from the front to keep minor from taking it. During the struggle for the necklace, minor hit B.N. twice, and B.N. eventually let go. J.T. and minor subsequently got off the bu s, and minor handed the necklace to J.T. J.T. told minor that he had something for him, so minor accompanied J.T. on a second bus to a pawn shop called Cash for Gold, where J.T. sold th e necklace for $235. J.T. gave minor $20, which he kept. Later, when the police came to minor’s residence, he
made a statement about the entir e event and gave the police th e name of the pawnshop so they could recover the necklace. On October 10, 2012, the Alameda Count y District Attorney filed a wardship petition, pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging that minor committed first degr ee robbery (Pen. Code, § 211 1 ) and receiving stolen property (§ 496). At the conclusion of th e jurisdictional hearing on November 14, 2012,
the court sustained both counts and declared the aggregated maximum confinement time to be six years and four months. At the di spositional hearing on December 5, 2012, the court continued minor’s wardship, 2 ordered that minor be detained at the Juvenile Justice Center, and imposed additional out-of-hom e terms and conditions of probation. Minor filed a timely notice of appeal on December 13, 2012.

DISCUSSION The parties agree the juvenile court e rred by sustaining the juvenile wardship petition with respect to both offenses. We likew ise agree. The common law rule is that a defendant “may not be convic ted of stealing and receivin g the same property.” ( People v.
Jaramillo (1976) 16 Cal.3d 752, 757 ( Jaramillo ); see also People v. Allen (1999) 21

1 Further undesignated statutory re ferences are to the Penal Code.

2 Minor had previously been declared a ward of the cour t on July 14, 2011, after he admitted to tampering with a vehicle in violation of the Vehicle Code.3 Cal.4th 846, 853 ( Allen ); People v. Stephens (1990) 218 Cal.App.3d 575, 586 ( Stephens ).) This court has found the same prin ciple to be applicable in juvenile adjudications. ( In re Kali D. (1995) 37 Cal.App.4th 381 , 384-385, disapproved on another ground in Allen, supra , 21 Cal.4th at pp. 859-860.) The Legislature codified this rule when amending section 496, subdivision (a), to add th e following language: “[N]o person may be convicted both [of receiving stol en property] and of the theft of the same property.” 3 An exception to this ru le exists at common law known as the “complete divorcement” exception. ( People v. Tatum (1962) 209 Cal.App.2d 179, 184 ( Tatum ), abrogated by statute on ot her grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1165 ( Hinks ).) This exception prov ides that a thief can be convicted of both stealing property and receiving the property in situations such as “where the thief has disposed of the property and subsequently re ceived it back in a transaction separate from the original theft.” ( Tatum, supra , 209 Cal.App.2d at p. 183.) However, courts have interpreted the exception as requiring a significant break, not merely the passage of time, in the defendant’s possession and control over th e stolen property, sufficient to establish a
divorcement between the acts of theft a nd of receiving the st olen property. ( People v. Garza (2005) 35 Cal.4th 866, 879; see also Jaramillo, supra , 16 Cal.3d at p. 759, fn. 8.) For reasons explained below, we conclude that there was no such significant break in the instant case, such that the “complete divorcement” exception does not apply to minor’s
conduct. For example, in People v. Strong , the defendant was charged under both Vehicle
Code section 10851 and Penal Code section 496, subdivision (a) — one count for taking a vehicle and another count for driving the same vehicle. ( People v. Strong (1994) 30 Cal.App.4th 366, 369.) The co urt determined defendant coul d be found guilty of both

3 In amending section 496, subdivision (a), the Legislature intended to, among other things, provide for the prosecution of principals in the actual theft of the property who continue to possess the property after the statute of limitations has run with respect to the theft . ( People v. Hinks (1997) 58 Cal.App.4th 1157, 1165; see also People v. Strong (1994) 30 Cal.App.4th 366, 373.)4 counts because “it appears that when defendant was found driv ing the pickup, the original crime of taking had long been comple ted. Four days had elapsed.” ( Id. at p. 375.) Conversely, in Tatum , this court reversed the judgment convicting the defendant of both concealing and withholding the same stolen property, because it was unable to find “evidence of acts of concealment entirely separate and apart from the theft.” ( Tatum,

supra , 209 Cal.App.2d at p. 185.) Similarly, in the instant case, minor’s possession of the necklace was part and parcel of the robber y. Although minor may have handed the necklace to J.T. after the robbery, he then ac companied J.T. to the pawn shop and, thus,
never distanced from the necklace itself. No r did much time pass between the robbery of the necklace and the exchange for money at the pawn shop. Unde r these circumstances, we conclude minor’s initial receipt of the ne cklace and subsequent receipt of money in exchange for the necklace was part of “one continuous journey away from the locus of the theft.” (Cf. People v. Malamut (1971) 16 Cal.App.3d 237, 242 [concluding there was a “substantial break” in the crimes of grand th eft and of unlawful ta king or driving of a vehicle where a substantial period of tim e elapsed between the initial theft and the subsequent driving of the stol en vehicle, and where the th eft occurred in a different
location from where the defendant was later found driving].) As such, the juvenile court in this case clearly erred by sustaining both the count of robbery and the count of receiving stolen property. Finally, this court has held that, under th ese circumstances, wh ere a defendant is erroneously found to have committed the offe nses of both stealing property and receiving the same stolen property, the “appropriate re medy” is to “reverse only . . . the conviction for receiving stolen property.” ( Stephens, supra , 218 Cal.App.3d at p. 586-587; see In re Kali D., supra , 37 Cal.App.4th at p. 387; see also People v. Stewart (1986) 185 Cal.App.3d 197, 206-207, overrul ed on another ground in Allen, supra , 21 Cal.4th at p. 866.) Accordingly, the appropriate remedy in the instant case is to vacate the juvenile court’s finding that minor committed the offens e of receiving stolen property. (See, e.g., People v. Ceja (2010) 49 Cal.4th 1, 10.)5 DISPOSITION The dispositional order is v acated, and the matter is rema nded to the juvenile court with directions to strike the finding that mi nor committed the offense of receiving stolen property and to conduct a new hearing on minor’s maximum time of confinement.

_ ____________ ____________ Jenkins, J.

We concur:

_____________ ____________ McGuiness, P. J.

_____________ ____________ Pollak, J.