Castaneda

A jury convicted defendant Gabriel Castaneda of first degree murder for killing a female employee who *1357 was working alone at a small medical clinic that had not yet opened for the day. The jury also made special circumstance findings that the killing occurred during the commission of sodomy, kidnapping, burglary, and robbery, and it returned a verdict of death.

Based on instructional error, the majority reverses the kidnapping conviction and vacates the kidnapping special-circumstance finding. Nevertheless, the majority points out, the judgment can be affirmed in its entirety because three special circumstance findings remain and because the facts underlying the kidnapping special circumstance were otherwise admissible at the penalty phase. (Maj. opn., ante, at p. 1354.) I agree.

Unlike the majority, however, I conclude that the trial court erred in failing to instruct the jury on theft as a lesser offense necessarily included in the offense of robbery. I further conclude that the error did not prejudice defendant. Accordingly, I concur fully in the judgment.

I

When the victim’s body was found in the clinic, which defendant had visited previously while the victim was…

A jury convicted Gabriel Castaneda of the first degree murder of Colleen Mary Kennedy (Pen. Code, §§ 187, subd. (a), 189), one count of second degree commercial burglary (Pen. Code, §§ 459, 460), one count of kidnapping (Pen. Code, § 207, subd. (a)), one count of sodomy by use of force (Pen. Code, § 286, subd. (c)(2)), and one count of second degree robbery (Pen. Code, § 211). 1 The jury found true the allegations that the murder was committed while defendant was engaged in the commission or attempted commission of the crimes of burglary, kidnapping, sodomy, and *1302 robbery. (§ 190.2, subd. (a)(17)(A), (B), (D), (G).) The jury also found true the allegations that defendant personally used a deadly and dangerous weapon in the commission of each of the five crimes (§§ 12022, subd. (b)(1), 12022.3, subd. (a)), and intentionally confined the victim in a manner that exposed her to a substantial likelihood of death during the commission of kidnapping (§ 209, subd. (a)). Finally, the jury further found that during the commission or attempted commission of sodomy, defendant kidnapped the victim (§ 667.61, subd. (e)(1)), engaged in the tying and binding of the victim (§ 667.61,…

CANTIL-SAKAUYE, C. J.—

A jury convicted Gabriel Castaneda of the first degree murder of Colleen Mary Kennedy (Pen. Code, §§ 187, subd. (a), 189), one count of second degree commercial burglary (Pen. Code, §§ 459, 460), one count of kidnapping (Pen. Code, § 207, subd. (a)), one count of sodomy by use of force (Pen. Code, § 286, subd. (c)(2)), and one count of second degree robbery (Pen. Code, § 211). [1] The jury found true the allegations that the murder was committed while defendant was engaged in the commission or attempted commission of the crimes of burglary, kidnapping, sodomy, and robbery. (§ 190.2, subd. (a)(17)(A), (B), (D), (G).) The jury also found true the allegations that defendant personally used a deadly and dangerous weapon in the commission of each of the five crimes (§§ 12022, subd. (b)(1), 12022.3, subd. (a)), and intentionally confined the victim in a manner that exposed her to a substantial likelihood of death during the commission of kidnapping (§ 209, subd. (a)). Finally, the jury further found that during the commission or attempted commission of sodomy, defendant kidnapped the victim (§ 667.61, subd. (e)(1)), engaged in the tying and binding of the victim…