Irvin

I respectfully dissent from that portion of the majority opinion that directs dismissal of the grand theft of an automobile count.

The contention that the court should have dismissed the grand theft of an automobile count because it was a lesser-included offense of the robbery is *194 without merit. The trier of fact reasonably could have concluded that two separate acts of larceny occurred. A robbery occurs when property is taken from a victim even though the property is possessed by the perpetrator of the crime only momentarily. (People v. Tijerina (1969) 1 Cal.3d 41, 47 [ 81 Cal.Rptr. 264 , 459 P.2d 680 ]; People v. Massie (1967) 66 Cal.2d 899, 908 [ 59 Cal.Rptr. 733 , 428 P.2d 869 ]; People v. Meyer (1888) 75 Cal. 383, 384-385 [ 17 P. 431 ]; People v. Post (1946) 76 Cal.App.2d 511, 514 [ 173 P.2d 48 ]; People v. Quiel (1945) 68 Cal.App.2d 674, 679 [ 157 P.2d 446 ]; People v. Khoury (1980) 108 Cal.App.3d Supp. 1, 4 [ 166 Cal.Rptr. 705 ].) When defendant took possession of the victim’s money as he drove across the parking lot, a robbery occurred. After giving the money to defendant, the victim showed her wallet to him. Defendant then said to “give him the purse.” After…

I. Introduction

Jeffrey Mark Irvin appeals from the judgment entered after a jury trial resulting in his conviction of second degree robbery with the use of a knife and grand theft of an automobile (Pen. Code, §§ 211, 487, subd. 3, 12022, subd. (d)), 1 and findings after a court trial of two prior serious felony convictions and service of a prior separate prison term for a felony conviction. (§§ 667, subd. (a), 667.5, subd. (b).) He contends that the trial court erred in failing to dismiss the conviction for grand theft and to exclude evidence of his prior felony convictions for impeachment purposes. The Attorney General contends that the trial court acted without jurisdiction in failing either to impose or strike the one-year enhancement for serving a prior prison term. (§ 667.5, subd. (b).) We agree with defendant that the grand theft conviction must be reversed and dismissed, and we also agree with the Attorney General that we must remand the case to the trial court to allow the trial court to exercise its discretion to impose the one-year enhancement or to strike it pursuant to section 1170.1, subdivision (h).

II. Facts

Viewed in accordance with the usual rules on…

Jeffrey Mark Irvin appeals from the judgment entered after a jury trial resulting in his conviction of second degree robbery with the use of a knife and grand theft of an automobile (Pen. Code, §§ 211, 487, subd. 3, 12022, subd. (d)), [1] and findings after a court trial of two prior serious felony convictions and service of a prior separate prison term for a felony conviction. (§§ 667, subd. (a), 667.5, subd. (b).) He contends that the trial court erred in failing to dismiss the conviction for grand theft and to exclude evidence of his prior felony convictions for impeachment purposes. The Attorney General contends that the trial court acted without jurisdiction in failing either to impose or strike the one-year enhancement for serving a prior prison term. (§ 667.5, subd. (b).) We agree with defendant that the grand theft conviction must be reversed and dismissed, and we also agree with the Attorney General that we must remand the case to the trial court to allow the trial court to exercise its discretion to impose the one-year enhancement or to strike it pursuant to section 1170.1, subdivision (h).

Viewed in accordance with the usual rules on appeal (…