People v. Rush

16 Cal. App. 4th 20, 93 Cal. Daily Op. Serv. 3953, 93 Daily Journal DAR 6675, 20 Cal. Rptr. 2d 15, 1993 Cal. App. LEXIS 563

Opinions

Opinion

LILLIE, P. J.

Michael Peter Rush appeals from the judgment entered following a jury trial that resulted in his conviction of second degree robbery and grand theft of an automobile (Pen. Code, § 211 and former § 487h, subd. (a), now § 487, subd. 3), each with the use of a firearm (Pen. Code, § 12022.5), as alleged in a two-count information. He was sentenced to concurrent seven-year prison terms, comprised of a three-year term on each count enhanced by four-year terms for firearm use, and contends he “was improperly convicted of robbery and the lesser included offense of grand theft auto.”

Viewed in accordance with the usual rules on appeal (People v. Mincey (1992) 2 Cal.4th 408, 432 [6 Cal.Rptr.2d 822, 827 P.2d 388]), the evidence established that at approximately 2 a.m. on August 27, 1991, appellant approached Bruce Ray as he sat in his automobile. Appellant placed a gun to Ray’s head and ordered him out of the vehicle. Ray complied and lay face-down on the ground while appellant stole his wallet and car keys. Another man approached and told appellant to shoot Ray, then entered and attempted to start the car. Ray advised the two on how to start the car, then heard the engine start, the passenger door open and close, and the car being driven off. The car was recovered a few days later and appellant’s left thumb prints were found on the rearview mirror.

Discussion

The contention that appellant may not be convicted of both robbery and grand theft of the automobile stolen during the robbery is well taken. Robbery is a form of theft, with the added elements of the application of force or fear while taking the property from the person or immediate presence of the victim. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351 [216 Cal.Rptr. 455, 702 P.2d 613].) Ordinarily, when all of the elements of one offense carrying lesser penalties are expressly contained within the elements of another offense carrying greater penalties, the former is a lesser included offense of the latter. This analysis is conducted in the abstract, without reference to the pleadings or facts of the particular case. (People v. Pendleton (1979) 25 Cal.3d 371, 382 [158 Cal.Rptr. 343, 599 P.2d 649].) Under this analysis, the Attorney General correctly observes that robbery may be committed, in the abstract, without committing automobile theft. This does not end the inquiry.

In People v. Irvin (1991) 230 Cal.App.3d 180 [281 Cal.Rptr. 195], the defendant robbed the victim in her car in a parking lot, then forcibly stole her car after driving a short distance across the lot. In finding that the forcible taking of the automobile was necessarily included within the robbery because it was part of the loot, the court observed:

“It is well settled that multiple convictions may not be based on necessarily included offenses, and where one offense is necessarily included in the other, conviction of the greater offense is controlling, and the defendant may not be convicted of the lesser offense. (People v. Pearson (1986) 42 Cal.3d 351, 355 [228 Cal.Rptr. 509, 721 P.2d 595].) In the Pearson case, the Supreme Court noted that where a defendant is convicted ‘of robbery and grand theft for the same act . . . [,] the grand theft conviction must be reversed “because it is a lesser necessarily included offense of the crime of robbery.’” (Ibid., citing People v. Cole (1982) 31 Cal.3d 568, 582 [183 Cal.Rptr. 350, 645 P.2d 1182].). . . However, ‘[i]t has long been the law of California that robbery is simply an aggravated form of theft with the additional element of force or fear, and that theft is therefore a lesser but necessarily included offense of robbery.’ (People v. Miller (1974) 43 Cal.App.3d 77, 81 [117 Cal.Rptr. 491].) . . .

“Robbery is a crime which is frequently spread over distance and varying periods of time. It is generally committed in three phases, which are assault of the victim, seizure of the victim’s property, and the robber’s escape to a location of temporary safety. (People v. Laursen (1972) 8 Cal.3d 192, 199-200 [104 Cal.Rptr. 425, 501 P.2d 1145].) The crime of robbery is not confined to the taking of property from the victim, and the crime is not completed until the robber has won his way to a place of temporary safety. (People v. Carroll (1970) 1 Cal.3d 581, 585 [83 CaLRptr. 176, 463 P.2d 400].) Thus, a robbery may be a continuing crime, spread over distance and time. (People v. Chapman (1968) 261 Cal.App.2d 149, 175 [67 Cal.Rptr. 601].) That defendant here relieved the victim of her purse and money and then a short time later removed her car from her does not alter the continuing nature of the robbery.

“To convict an accused of robbery, proof is required that the accused took personal property from the immediate presence of the victim. The Supreme Court has held that ‘immediate presence’ means an area in which the victim could have reasonably expected to exercise some physical control over his or her property. (People v. Hayes (1990) 52 Cal.3d 577, 626-627 [276 Cal.Rptr. 874, 802 P.2d 376], citing People v. Bauer (1966) 241 Cal.App.2d 632, 642 [50 Cal.Rptr. 687].) In Bauer, supra, the defendant murdered the victim and then took the victim’s keys and the car parked outside the house in which the murder took place. The appellate court held that the robbery encompassed the taking of the car as well as the keys. (Id. at p. 642.)

“We find no authority for the proposition that a robber may be charged with and convicted of a separate robbery, or an additional offense of grand theft, because he or she took more than one item from a solitary victim during a single course of conduct. . . .

“In the instant case, since the defendant had neither ceased to threaten violence toward the victim nor had yet made his escape at the time he let the victim out of her car and drove away, there was but one act of robbery, and that occurred concurrently with the accompanying acts of theft (i.e., the taking of the victim’s purse, money and car). Logically, the theft of the automobile is no more divisible from the rest of the robbery than is the theft of the money from the theft of the purse. (See People v. Estes (1983) 147 Cal.App.3d 23, 28-29 [194 Cal.Rptr. 909], in which the defendant’s robbery conviction was affirmed but his theft conviction reversed where the defendant shoplifted merchandise in a store and then assaulted a security guard who tried to apprehend him in the parking lot.)

“Although the defendant took more than one item of personal property ... the few seconds which elapsed between each taking coupled with the circumstance that her car traveled some small distance across the parking lot are wholly insufficient facts to sustain a finding that defendant can be convicted of both robbery and grand theft in this case. The robbery here was a continuous transaction, and the theft of the automobile was necessarily included within that robbery." (People v. Irvin, supra, 230 Cal.App.3d at pp. 184-186; cf. People v. Gomez (1992) 2 Cal.App.4th 819, 826 [3 Cal.Rptr.2d 418].)

Fairly read, the foregoing merely holds that a defendant who steals various items by force or fear, in a continuing transaction, commits but one offense and the loot may not be splintered into separate counts of theft for purposes of multiple conviction. This is not to say that, in an appropriate case, it is impermissible to plead the various offenses that may be shown by the evidence. The People are not required to pursue only the most serious offense, here robbery, and risk a failure of proof as to one or more elements, when the evidence adequately supports conviction of another form of theft transactionally inseparable from the robbery. The analysis of lesser included offenses in such a case is based upon the pleadings and facts in support of the conviction. The inquiry is essentially fact specific, focusing upon the notice given to the defendant and factual posture of the case. The lesser offense may be charged, as here, in a separate count within the information, or, as is often the case, suggested by the language with which an individual count is pleaded. (Pen. Code, §§ 949, 952.)

In People v. Marshall (1957) 48 Cal.2d 394 [309 P.2d 456], the information alleged a single count of robbery in the statutory language, with the additional recitation that the property stolen included the victim’s automobile. The defendant was acquitted in a court trial of robbery, but convicted of unlawfully taking the motor vehicle. In affirming the conviction of this specifically pleaded, factually included, lesser offense it was held that the specific language of the accusatory pleading may be used to determine the necessarily included offenses in a given case, even when the lesser offense is not otherwise included within the elements of the greater offense. (People v. Marshall, supra, 48 Cal.2d at pp. 399-406.)

Thus, it has been held that unlawful sexual intercourse with a minor may be included within a charge of forcible rape when the defendant had received notice of the victim’s age at the preliminary hearing. (People v. Collins (1960) 54 Cal.2d 57, 59-60 [4 Cal.Rptr. 158, 351 P.2d 326]; cf. People v. Troyn (1964) 229 Cal.App.2d 181, 184-185 [39 Cal.Rptr. 924].) Similarly, on somewhat unusual facts, misdemeanor lewd conduct in a public place was found to be included within a felony charge of oral copulation, although the latter offense was not alleged to have occurred in public, where the evidence and theory of the parties supported this conclusion, and there was no objection by the defendant. (People v. Hensel (1965) 233 Cal.App.2d 834, 838-839 [43 Cal.Rptr. 865].) This latter holding has been effectively limited to its facts and conviction of an unincluded offense of which the pleadings give no notice is presently impermissible. (People v. Delgado (1989) 210 Cal.App.3d 458, 463 [258 Cal.Rptr. 365]; People v. Puckett (1975) 44 Cal.App.3d 607, 611-612 [118 Cal.Rptr. 884]; cf. In re Alberto S. (1991) 226 Cal.App.3d 1459, 1464-1466 [277 Cal.Rptr. 475].)

In People v. Lohbauer (1981) 29 Cal.3d 364, 368-369 [173 Cal.Rptr. 453, 627 P.2d 183], the concept of a lesser offense included within the specific language of the pleadings was explained, as follows: “As to a lesser included offense, the required notice is given when the specific language of the accusatory pleading adequately warns the defendant that the People will seek to prove the elements of the lesser offense. ([People v. West (1970) 3 Cal.3d 595, 612 (91 Cal.Rptr. 385, 477 P.2d 409)]; People v. Marshall (1957) 48 Cal.2d 394, 405 [309 P.2d 456].) However, even when the charge does not so specify, the requisite notice is nonetheless afforded if the lesser offense is ‘necessarily included’ within the statutory definition of the charged offense; in such event conviction of the included offense is expressly authorized (§ 1159). In this connection we have said that ‘ “ ‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’ ” [Citations.]’ (People v. Pendleton (1979) 25 Cal.3d 371, 382 [158 Cal.Rptr. 343, 599 P.2d 649].) This definition may be traced to People v. Greer (1947) 30 Cal.2d 589, 596 [184 P.2d 512], and People v. Krupa (1944) 64 Cal.App.2d 592, 598 [149 P.2d 416].” Similarly, in People v. Thomas (1987) 43 Cal.3d 818 [239 Cal.Rptr. 307, 740 P.2d 419], the defendant contended that a pleading which alleged voluntary manslaughter by citing the Penal Code section did not include involuntary manslaughter, the offense of which he was convicted. The court reiterated its earlier holding in People v. Marshall, supra, that “ ‘the specific allegations of the accusatory pleading, rather than the statutory definitions of offenses charged, constitute the measuring unit for determining what offenses are included in a charge.’ ” (People v. Thomas, supra, at p. 826.)

Turning to the present matter, count 1 of the information alleged the robbery of “Bruce Ray” and count 2 alleged grand theft of a motor vehicle “the property of Bruce Ray,” both of which occurred on August 27, 1991. The pleading contained no further recitation of a connection between the offenses; however, the evidence at the preliminary hearing and at trial unequivocally established that the automobile was part of the loot stolen in the robbery. Here, the specific language of the pleadings alleged the automobile theft as a lesser, necessarily included offense within the charged robbery because the offenses involved the same victim on the same date. It appears settled that “[a] defendant commits only one robbery no matter how many items he steals from a single victim pursuant to a single plan or intent.” (People v. Brito (1991) 232 Cal.App.3d 316, 326 [283 Cal.Rptr. 441].) It was error to convict on both the greater and specifically pleaded lesser included offenses, and the conviction of the lesser offense must be reversed and the count dismissed. (People v. Irvin, supra, 230 Cal.App.3d at p. 186.)

Disposition

The conviction of grand theft of an automobile with the use of a firearm in count 2 is reversed and the count is dismissed. In all other respects, the judgment is affirmed.

Johnson, J„ concurred.