People v. Rush

Michael Peter Rush appeals from the judgment entered following a jury trial that resulted in his conviction of second degree robbery *23 and grand theft of an automobile (Pen. Code, § 211 and former § 487h, subd. (a), now § 487, subd. 3), each with the use of a firearm (Pen. Code, § 12022.5), as alleged in a two-count information. He was sentenced to concurrent seven-year prison terms, comprised of a three-year term on each count enhanced by four-year terms for firearm use, and contends he “was improperly convicted of robbery and the lesser included offense of grand theft auto.”

Viewed in accordance with the usual rules on appeal (People v. Mincey (1992) 2 Cal.4th 408, 432 [ 6 Cal.Rptr.2d 822 , 827 P.2d 388 ]), the evidence established that at approximately 2 a.m. on August 27, 1991, appellant approached Bruce Ray as he sat in his automobile. Appellant placed a gun to Ray’s head and ordered him out of the vehicle. Ray complied and lay face-down on the ground while appellant stole his wallet and car keys. Another man approached and told appellant to shoot Ray, then entered and attempted to start the car. Ray advised the two on how to start the car, then heard the engine…

People v. Irvin (1991) 230 Cal.App.3d 180 [ 281 Cal.Rptr. 195 ] (Second Dist., Div. 5, Justice Turner dissented), the entire and unexplained support for the majority opinion, is wrongly decided. Its error misled the court in People v. Gomez (1992) 2 Cal.App.4th 819 [ 3 Cal.Rptr.2d 418 ] (2d Dist., Div. 3) and now has lead astray my colleagues. 1 Its holding that grand theft auto is a lesser, necessarily included offense of robbery can only cause chaos in the trial courts and confusion in the appellate courts. I explain.

Factual Background

The essential facts are now so common a new word has been coined to describe them: carjacking. A robber, often armed with a gun (as in both Irvin *28 and the instant case), forces a car owner from his/her car and steals the car. In Irvin money and a purse were also stolen; in the instant case a wallet was taken.

In both Irvin and the instant case the defendant was charged with robbery in one count, grand theft auto in a separate count, and convicted of both.

Origins and Functions of Included Offense Doctrine

Until 1915, in California, an “accusatory pleading could charge but one offense.” (People v. Tideman (1962) 57 Cal.2d 574, 579 [ 21…