Escobar

*480 Opinion

Andrew Rudy Escobar appeals from the judgment entered following a jury trial that resulted in his conviction of kidnapping for the purpose of robbery and simple kidnapping (Pen. Code, §§ 209, subd. (b), 207, counts 1, 2), two counts of second degree robbery (Pen. Code, § 211, counts 3, 7), two counts of grand theft of an automobile (Pen. Code, § 487, former subd. 3, counts 4, 10), first degree burglary (Pen. Code, § 459, count 8), attempted first degree robbery (Pen. Code, §§664-211, count 9), each with the use of a firearm (Pen. Code, § 12022.5), and evading a police officer (Veh. Code, § 2800.2, count 11), and his plea of guilty to possessing a firearm by a previously convicted felon (Pen. Code, § 12021, count 13) and admission of one prior serious felony conviction (Pen. Code, § 667, subd. (a).)

He contends: “I. The evidence is insufficient to support appellant’s conviction of kidnapping for robbery in count 1. II. The trial court committed prejudicial error when it permitted the prosecutor to refer to the charged ‘kidnappings for robbery’ as ‘carjackings,’ when no such crime existed in California. III. Appellant’s convictions of counts 2, 3, 4, and 10 must be…

I dissent from the reversal of the grand theft auto counts: grand theft auto is not a lesser included offense of robbery.

Almost three years ago the majority held grand theft auto is an included offense of robbery. (People v. Rush (1993) 16 Cal.App.4th 20, 25 [ 20 Cal.Rptr.2d 15 ].) I dissented. (Id. at pp. 27-38.)

I did not understand the majority’s reasoning then and do not understand it now. Perhaps because it is an oxymoron. Rush states that an included offense “analysis is conducted in the abstract, without reference to the . . . facts of the particular case’’ ( 16 Cal.App.4th at p. 23 ) and also states the opposite: “The analysis of lesser included offenses ... is based upon the . . . facts in support of the conviction. The inquiry is essentially fact specific . . . .” (Id. at p. 25.)

The majority reiterated their position in People v. Gamble (1994) 22 Cal.App.4th 446 [ 27 Cal.Rptr.2d 451 ]. Again I dissented. (Id. at pp. 455-456.)

Since Rush and Gamble two other courts have scrutinized the majority and dissenting views in Rush and Gamble . Both reject the majority view. (People v. Miranda (1994) 21 Cal.App.4th 1464 [ 26 Cal.Rptr.2d 610 ] [6th Dist.]; the other opinion…