McGreen

Appellants McGreen and Race were charged in three counts as follows: Count I—robbery of one Kurt Flickner (Pen. Code, § 211), 1 count II—attempted robbery of a gasoline station (§ 664), and count III—burglary of a gasoline station (§ 459). 2 Each count contained an allegation that in the commission of the alleged offenses, appellant McGreen did personally use a firearm in violation of section 12022.5. Each count contained a further allegation that in the commission of each alleged offense, appellant Race was armed with a firearm in violation of section 12022, subdivision (a).

McGreen was convicted of all three counts as charged. Race was acquitted of count I and convicted of the other two counts.

The trial court reduced the burglary conviction as to each appellant to burglary in the second degree and stayed imposition of sentence thereon.

We shall set forth the evidence as it becomes relevant to the issues raised. We discuss each appellant’s contentions separately.

Appellant McGreen

There is no question but that McGreen committed the acts alleged in the three counts of the information. His defense was solely diminished capacity. There are four areas of claimed…

I dissent from the reversal as to appellant McGreen.

The majority reasons (1) that simple assault is a necessarily included offense of robbery; (2) that the allegation that McGreen used a firearm in the commission of the robbery is a part of the robbery charge; and (3) that the “use” allegation is part of the “specific language of the accusatory pleading.” The majority concludes that the charge of robbery with a use allegation encompasses the offense of assault with a deadly weapon, and that the trial court erred in failing to instruct sua sponte on this necessarily included offense. The majority expressly disagrees with People v. Orr (1974) 43 Cal.App.3d 666 [ 117 Cal.Rptr. 738 ] and its progeny, which hold that a firearm use allegation under Penal Code section 12022.5 is not to be considered in determining whether the accusation includes a lesser included offense as pleaded. (People v. Benjamin (1975) 52 Cal.App.3d 63, 71-72 [ 124 Cal.Rptr. 799 ]; People v. Wilson (1976) 62 Cal.App.3d 370, 374 [ 132 Cal.Rptr. 813 ]; People v. Salas (1978) 77 Cal.App.3d 600, 607 [ 143 Cal.Rptr. 755 ]; People v. Cole (1979) 94 Cal.App.3d 854, 861-862 [ 155 Cal.Rptr. 892 ].)

The majority has…

Appellants McGreen and Race were charged in three counts as follows: Count I — robbery of one Kurt Flickner (Pen. Code, § 211), [1] count II — attempted robbery of a gasoline station (§ 664), and count III — burglary of a gasoline station (§ 459). [2] Each count contained an allegation that in the commission of the alleged offenses, appellant McGreen did personally use a firearm in violation of section 12022.5. Each count contained a further allegation that in the commission of each alleged offense, appellant Race was armed with a firearm in violation of section 12022, subdivision (a).

McGreen was convicted of all three counts as charged. Race was acquitted of count I and convicted of the other two counts.

The trial court reduced the burglary conviction as to each appellant to burglary in the second degree and stayed imposition of sentence thereon.

We shall set forth the evidence as it becomes relevant to the issues raised. We discuss each appellant's contentions separately.

There is no question but that McGreen committed the acts alleged in the three counts of the information. His defense was solely diminished capacity. There are four areas of claimed…