Gamble

—A jury found defendant guilty of second degree robbery (count 1) and grand theft auto (count 2), and as to each count, the personal firearm-use allegation to be true. He appeals from the judgment.

Facts

On October 19, 1991, about 3:30 p.m., Robert Stieglitz, a private jewelry dealer, drove his white 1990 Acura Legend to a preschool where he was to put on a jewelry show; he carried with him in the trunk of the Acura, 3,000 pieces of jewelry worth a wholesale value of $200,000 which had been advanced to him on consignment from manufacturers. When he got out of the Acura in the driveway of the preschool, defendant approached him, put a gun in his side and demanded, “Give me your keys”; taken by surprise, Stieglitz did not respond and, after repeating the demand and Stieglitz did not move, defendant reached into his pocket and took his keys, wallet, and a diamond tennis bracelet; defendant warned, “Don’t do anything or I’ll smoke you,” and jumped into the Acura whereupon, another man ran out of the *449 shadow of the building and got into the passenger side, and defendant drove away; the Acura contained a cellular phone.

Stieglitz immediately notified police who responded…

arithmetic, is simple. It, just like arithmetic, has nothing to do with facts.

*456 In arithmetic it does not matter whether you are counting apples, oranges, or kumquats. Two plus two equals four.

It is the same with the lesser included offense doctrine. It doesn’t matter whether a murder was with a gun or a pillow, whether there was one victim or a hundred and one victims. Murder does not include drunk driving because the elements of murder do not include the elements of drunk driving. Murder does not include theft of artichokes because the elements of murder do not include the elements of theft of artichokes.

Sometimes my colleagues remember this. They did so as recently as November 22, 1993. (In re Daniel R. (1993) 20 Cal.App.4th 239 [ 24 Cal.Rptr.2d 414 ].) In Daniel R. the question was whether assault with a deadly weapon (Pen. Code, § 245; statutory references, unless otherwise noted, are to the Penal Code) was an included offense of discharging a firearm at an occupied vehicle (§ 246).

In answering the question Justice Johnson stated, and Justice Lillie agreed, that “[w]e need not decide whether defendant’s conduct satisfied the elements of an assault with a deadly…

A jury found defendant guilty of second degree robbery (count 1) and grand theft auto (count 2), and as to each count, the personal firearm-use allegation to be true. He appeals from the judgment.

On October 19, 1991, about 3:30 p.m., Robert Stieglitz, a private jewelry dealer, drove his white 1990 Acura Legend to a preschool where he was to put on a jewelry show; he carried with him in the trunk of the Acura, 3,000 pieces of jewelry worth a wholesale value of $200,000 which had been advanced to him on consignment from manufacturers. When he got out of the Acura in the driveway of the preschool, defendant approached him, put a gun in his side and demanded, "Give me your keys"; taken by surprise, Stieglitz did not respond and, after repeating the demand and Stieglitz did not move, defendant reached into his pocket and took his keys, wallet, and a diamond tennis bracelet; defendant warned, "Don't do anything or I'll smoke you," and jumped into the Acura whereupon, another man ran out of the shadow of the building and got into the passenger side, and defendant drove away; the Acura contained a cellular phone.

Stieglitz immediately notified police who…