Guzman

By jury Miguel Guzman and Antonio Guzman were convicted of first degree burglary and grand theft of personal property. Appellant Miguel Guzman was also convicted of second degree robbery, and the court made a finding he had a prior felony conviction for which he had served a separate prison term. (Pen. Code, §§ 459, 487, subd. (a), 211, 667.5, subd. (b).) Appellant Miguel Guzman appeals from the judgment and contends he was improperly sentenced to concurrent terms for the burglary, grand theft and robbery in violation of Penal Code section 654. Appellant Antonio Guzman appeals from the judgment and contends the evidence was insufficient to support his convictions for burglary and grand theft.

Facts

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [ 26 Cal.Rptr.2d 23 , 864 P.2d 103 ]), the evidence established on November 7, 1994, Scott Hansen and his wife Jennifer and their son lived on Arcana Road in Woodland Hills. Scott Hansen was watching television that night at 8:20 p.m. The dog started barking. Hansen looked outside and saw four men and a boy standing fifteen feet below him. 1 The men were standing next to a white…

I dissent from the reversal of the grand theft count: grand theft (Pen. Code, § 487, subd. (a)) is not a lesser included offense of robbery. (Pen. Code, § 211.)

In People v. Rush (1993) 16 Cal.App.4th 20 , 25 [ 20 Cal.Rptr.2d 15 ], People v. Gamble (1994) 22 Cal.App.4th 446 [ 27 Cal.Rptr.2d 451 ], and most recently in People v. Escobar (1996) 45 Cal.App.4th 477 [ 53 Cal.Rptr.2d 9 ], my colleagues held grand theft auto is an included offense of robbery. Now they hold grand theft (Pen. Code, § 487) also is an included offense of robbery. How they reach this conclusion is not explained. Only citations to People v. Cole (1982) 31 Cal.3d 568, 582 [ 183 Cal.Rptr. 350 , 645 P.2d 1182 ], People v. Irvin (1991) 230 Cal.App.3d 180 [ 281 Cal.Rptr. 195 ], and People v. Bernal (1994) 22 Cal.App.4th 1455 [ 27 Cal.Rptr.2d 839 ] are provided as clues. Neither Irvin nor Bernal involved grand theft, which leaves Cole . As to Cole , it “relies on an attorney general concession, engages in no analysis, and cites only one case which does not support its conclusion.” (People v. Rush, supra, 16 Cal.App.4th at p. 36 (dis. opn. of Woods (Fred), J.), fn. omitted.)

The majority position defies rational…

By jury Miguel Guzman and Antonio Guzman were convicted of first degree burglary and grand theft of personal property. Appellant Miguel Guzman was also convicted of second degree robbery, and the court made a finding he had a prior felony conviction for which he had served a separate prison term. (Pen. Code, §§ 459, 487, subd. (a), 211, 667.5, subd. (b).) Appellant Miguel Guzman appeals from the judgment and contends he was improperly sentenced to concurrent terms for the burglary, grand theft and robbery in violation of Penal Code section 654. Appellant Antonio Guzman appeals from the judgment and contends the evidence was insufficient to support his convictions for burglary and grand theft.

Viewed in accordance with the usual rules on appeal ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [ 26 Cal. Rptr.2d 23 , 864 P.2d 103 ]), the evidence established on November 7, 1994, Scott Hansen and his wife Jennifer and their son lived on Arcana Road in Woodland Hills. Scott Hansen was watching television that night at 8:20 p.m. The dog started barking. Hansen looked outside and saw four men and a boy standing fifteen feet below him. [1] The men were standing next…