Russell

Defendant and appellant Eric A. Russell appeals from the judgment entered following a jury trial which resulted in his conviction of second degree robbery, kidnapping during a carjacking and evading an officer. He contends the evidence was insufficient to support the conviction of aggravated kidnapping, and that the trial court erred in failing to instruct on the lesser included offense of unlawful taking of a vehicle, in giving CALJIC Nos. 1.00, 2.01, 2.27 and 2.51, and in failing to give CALJIC No. 2.71.7. After review, we affirm the judgment. In the published portion of this opinion, we conclude that unlawful taking of a vehicle is not a necessarily lesser included offense within kidnapping during a carjacking.

Procedural Background

Defendant was charged by information with two counts of second degree robbery (Pen. Code, § 211) (counts 1 and 2); kidnapping during commission of carjacking (Pen. Code, § 209.5, subd. (a)) (count 3); and willfully evading a pursuing officer (Veh. Code, § 2800.2) (count 4). As to count 2, it was further alleged that he personally used a deadly weapon. (Pen. Code, § 12022, subd. (b).) Defendant’s Penal Code section 1118.1 motion as to the…