PEOPLE v. JOHNSON

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Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Todd Lee JOHNSON, Defendant and Appellant.

No. A064665.

Decided: November 22, 1995

Janice M. Lagerlof, by appointment of the Court of Appeal under the First DistrictAppellate ProjectIndependent Case System, San Francisco, for plaintiff and respondent. Daniel E. Lungren, Attorney General;  George Williamson, Chief Assistant Attorney General;  Ronald A. Bass, Senior Assistant Attorney General;  Ronald S. Matthias, Supervising Deputy Attorney General;  David D. Salmon, Deputy Attorney General, San Francisco, for defendant and appellant.

Todd Lee Johnson was convicted by a jury of two counts of second degree robbery and one count each of assault with a firearm, illegal possession of a firearm by an ex-felon, and unlawful taking of a vehicle.   Allegations that he personally used a firearm in the commission of the robberies, the assault, and the unlawful vehicle taking were found to be true.   In a bifurcated proceeding, the trial court found that appellant had suffered a prior serious felony conviction for involuntary manslaughter, and had served a prior prison term for that offense.

He was sentenced to eighteen years in state prison as follows:  the upper term of five years for second degree robbery with a five-year enhancement for weapons use (Pen.Code,1 §§ 212.5, subd. (b), 12022.5—count 1);  a one-year subordinate term for the other robbery and sixteen months for the weapons use enhancement (§§ 212.5, subd. (b), 12022.5, subd. (a)—count 2);  four years for assault with a firearm (§ 245, subd. (a)(2)—count 3);  eight months for possession of a firearm by an ex-felon (§ 12021, subd. (a)—count 4);  and eight months for unlawful taking of a vehicle (Veh.Code, § 10851, subd. (a)—count 5).   A five-year enhancement was imposed for the prior felony conviction (§ 667).   All sentences were ordered to be served consecutively.   Sentence on counts three (assault) and five (unlawful taking) were stayed pursuant to section 654, as well as for the prior prison term.   Appellant was also ordered to pay a $200 restitution fine pursuant to Government Code section 13967.

In the published portion of this opinion we hold that the offenses of possession of stolen property and illegal taking and driving of a motor vehicle are not lesser related offenses to robbery (see Discussion I, post ), and that the crimes of assault with a deadly weapon (count 3) and unlawful vehicle taking (count 5) are not lesser included offenses of robbery (see Discussion IV, post ).

In the unpublished portion, we reject appellant's claims that he was denied his constitutional right to present a defense, that the prosecutor committed prejudicial misconduct in his closing arguments, and that the trial court committed a “dual use” violation in using a prior serious felony conviction to both enhance his sentence and to impose consecutive terms.   We also find that section 654 prohibits sentencing appellant to a consecutive eight-month term on count four (ex-felon in possession a firearm), as the Attorney General concedes.   Accordingly, we affirm the judgment and remand the matter to the trial court to correct the sentence.

Factual And Procedural Background

Around midnight on June 25, 1993, Stephanie Lucero and her boyfriend John Pepper had left a San Bruno movie theater and were entering her Saturn automobile when they were robbed at gunpoint by a lone, black male.   The gunman was wearing dark clothing, a dark knit cap, and he was holding a backpack.   Ms. Lucero's car was parked in a parking lot beneath a light which afforded a “medium” amount of light.   Pointing his gun at Pepper, the robber calmly demanded the car keys and his wallet.   Pepper complied and he then yelled at Lucero, who had slumped down in the passenger seat, to get out of the car.   The gunman told her to leave her purse in the car, and she did so.   She testified that she did not get a good look at the gunman, as her attention was directed at the gun and Pepper.   Lucero fearing she would be shot, walked away from the car to a nearby dumpster, ignoring the gunman's direction to lay face down on the ground.   Pepper, too, ignored the command to lay on the ground, and he joined Lucero behind the dumpster.   The robber then drove away in Lucero's car.   They immediately contacted the police and provided descriptions of the robber and attempted to create a composite sketch.

About one week later on July 3, appellant was arrested in Berkeley driving Lucero's car.   All of Lucero's belongings were missing, except for her registration card, tucked in the driver's visor.   The car was filled with appellant's belongings, including a backpack and a “beanie” similar to the robber's.   Also recovered was a .45 automatic pistol which resembled the gun used in the robbery, a pellet gun, three “loaded” magazines, a pouch of bullets, duct tape, and plastic ties.   Appellant told Berkeley police officer Martin Heist that it was his cousin's Stephanie's car, and that he had been driving it for three weeks.

Lucero described the gunman as 5 feet 8 inches tall, small but not stocky, who spoke in a clear, calm voice.   She did not pick out appellant's picture from a photo-lineup conducted one week after the crime.   Two weeks later, she selected appellant and another subject from a live lineup, but she could not make a positive identification.   She was unable to identify appellant in court.

Pepper, the other victim, was absolutely positive that appellant was the robber.   He testified that he deliberately parked the car beneath the light.   He testified that he watched the robber's face closely for any hint of a change in his demeanor to indicate that he was about to shoot.   He continued to look at the robber's face as Lucero sidled away from the car.   Because the robber appeared calm and controlled, Pepper decided it was safe to join Lucero behind the dumpster.   Pepper testified that for about one and half minutes, he had an “absolutely” good look at the robber's face.

He viewed a photo lineup and selected two pictures as resembling the robber, one of which was appellant's.   He deliberately refused to make a positive identification because he wanted to view the suspects in person.   At the live lineup a few days later, Pepper immediately recognized appellant as the robber.   At the lineup he noticed a mark, about one inch long, beneath appellant's right eye, which he recalled seeing at the robbery.   Pepper positively identified appellant at the preliminary hearing and at trial.

Appellant testified that he was with a friend Louis Carbarles at a bar in Long Beach the night of the robbery.   He said that while in Southern California, he purchased the car for $800 from “Charles,” knowing it was stolen.   He asserted that he had arranged to sell the car to a “chop shop” in Northern California for $3000, and was en route when he was arrested.   He testified that he had purchased the automatic pistol and ammunition from Carbarles's cousin Jeff, a few days before leaving Los Angeles.   He stated he agreed to pay for it later.   He testified that he was certain he was at the club the night of June 25th, but he was otherwise unable to state where he stayed the days preceding and following that date.

California Highway Patrol Officer John Colombet, an expert in auto theft, testified on rebuttal that Saturn automobiles are not in demand by “chop-shops.”   He said that the cars most often stolen for parts—namely, Mustangs, Accords, Preludes, Mercedes and BMW's would not fetch more than $1,500;  and that includes a new $100,000 Mercedes–Benz.   He stated that the Saturn has never been among the top forty vehicle models stolen, and that in the past two and one-half years, only two Saturns have been reported stolen in the nine Bay Area counties.   Both were recovered intact.   One of these was Lucero's car.   Statewide, only three Saturns were reported stolen during this period, including Lucero's.

Discussion

I.

 Appellant contends the trial court prejudicially erred in refusing requested instructions on possession of stolen property (§ 496),2 and illegal taking and driving of a motor vehicle,3 both occurring on July 3, as lesser related offenses to robbery.   We hold that these crimes were not lesser related offenses to the charged robbery.   That renders moot appellant's related contention that the trial court erred in concluding it had no jurisdiction over the offenses committed in Alameda County.

At trial, appellant's counsel requested the court to instruct on both offenses claiming they were lesser related offenses to the charged robbery.   Counsel argued that the prosecution's evidence that appellant was stopped driving the victim's car in Berkeley about one week after the robbery was “transactionaly [sic ] related” to the charged crime.   The trial court refused, concluding that these offenses were committed out of the county and not within the court's jurisdiction and, as such, were not related to the robbery committed on June 25th.   To avoid any confusion over which crimes appellant was being tried for, the court instructed the jury, “ ‘The charges the Defendant faces are those alleged in the information as having been committed in San Mateo County on June the 25th, 1993.’ ”

Relying on the three-pronged test for lesser related offense instructions announced in People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303 (Geiger ), appellant contends that the court should have given the requested instructions because:  (1) the identification evidence and defendant's own testimony raised a doubt about who committed the offense;  (2) receiving stolen property and section 10851 are closely related offenses to the charged robbery and are circumstantial proof of his guilt of the greater offense;  and (3) conviction for these claimed lesser offenses is consistent with appellant's defense at trial.

In Geiger, the court held it was error not to give a requested instruction on a lesser related offense where that offense met the following conditions:  (1) there must exist “some basis, other than an unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged”;  (2) the offense must be “closely related” to the offense charged and supported by the evidence;  and (3) the defendant has relied on a defense at trial which is consistent with a conviction for the related offense.  (35 Cal.3d at pp. 531–532, 199 Cal.Rptr. 45, 674 P.2d 1303.)   As to the third prong, the court concluded that the instruction need not be given if the defense theory and evidence reflect a complete denial of culpability as when the defense is alibi, or the only issue is identity, unless the defendant argues that the evidence at most shows guilt only of the related offense.   (Ibid.)

The court also noted that “the right to instructions on related offenses is not without limit ․ and exists only to enable the jury to determine fairly the issues presented by the evidence and in so doing to avoid any incentive to convict the defendant of a greater offense than that which he committed.”   (35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303;  see People v. Hill (1993) 12 Cal.App.4th 798, 804–805, 15 Cal.Rptr.2d 806;  see CALJIC (5th ed. pocket pt.) appen. C (1995) pp. 274–275.)

The People concede that the first and third factors in Geiger are met, but contend that the second—the lesser offense must be closely related to the charged crime—was not met.   We agree that on these facts, the crimes of receiving stolen property and unlawful taking of a vehicle are not part of the same criminal act as charged in the robberies and cannot be interpreted to be “closely related.”

The cases which have analyzed the duty to give lesser related offense instructions implicitly require that the lesser offense be part of the same act as the greater offense.  (See People v. Araujo (1992) 10 Cal.App.4th 700, 704–705, 12 Cal.Rptr.2d 662;  People v. Randle (1992) 8 Cal.App.4th 1023, 1031, 10 Cal.Rptr.2d 804.)   In Geiger, which announced the rule, the lesser offense (vandalism) was directly related to the charged greater offense (burglary), arising as it did, from the very same act (the unlawful breaking into the restaurant).   The court held that on this evidence, it was error to refuse to give the instruction.  (35 Cal.3d at p. 532, 199 Cal.Rptr. 45, 674 P.2d 1303.)   In reaching its holding, the Geiger court relied on the principle governing the instruction of lesser included offenses, that the defendant has a constitutional right to instructions on “ ‘every material issue presented by the evidence.’ ”  (Id. at pp. 519–520, 199 Cal.Rptr. 45, 674 P.2d 1303.)   In practical terms, this means that the court must instruct, sua sponte, on lesser included offenses where the evidence raises a question as to whether all the elements of the charged offense are present, but not when there is no evidence that the offense was less than that charged.  (See, e.g., People v. Kelly (1990) 51 Cal.3d 931, 958–959, 275 Cal.Rptr. 160, 800 P.2d 516;  People v. Wickersham (1982) 32 Cal.3d 307, 323–324, 185 Cal.Rptr. 436, 650 P.2d 311.)   To trigger an instruction under that rule, the lesser offense must arise out of, or occur during, the same criminal act as the greater charged offense.

In People v. Wickersham, supra, 32 Cal.3d 307, 185 Cal.Rptr. 436, 650 P.2d 311, defendant was charged with murdering her husband, but claimed the trial court prejudicially erred in failing to, sua sponte, instruct on the lesser included offense of unpremeditated, second degree murder.  (32 Cal.3d at pp. 329–330, 185 Cal.Rptr. 436, 650 P.2d 311.)   The court agreed and reversed the conviction of first-degree murder.   Unlike the defendant in our case, Wickersham did not deny committing the act which formed the basis for the greater offense (the killing of her husband), but maintained that one or more of the elements of the greater offense were missing.

Likewise, in People v. Ramkeesoon (1985) 39 Cal.3d 346, 216 Cal.Rptr. 455, 702 P.2d 613, the court reversed a conviction based on a robbery/felony-murder theory where defendant testified that he did not form the intent to steal until after he killed the victim.   That testimony, if believed, would have meant that the defendant would be guilty of grand theft, and would have removed the robbery as a basis for the felony-murder charge.   The court held that it was reversible error not to instruct on theft as a lesser included offense to robbery.  (Id. at p. 351, 216 Cal.Rptr. 455, 702 P.2d 613.)   At no time did defendant deny stabbing the victim, but only argued that the circumstances did not support the greater charged offense of felony-murder (robbery).

A brief survey of other lesser included offense decisions demonstrate that the duty to instruct becomes an issue only when the lesser offense arises out of the same act charged in the greater offense, but not when the defendant denies all complicity.  (See People v. Perez (1992) 2 Cal.4th 1117, 1129, 9 Cal.Rptr.2d 577, 831 P.2d 1159 [no duty to instruct on provocation where defendant denied any involvement in the murder and people's evidence did not show the existence of any quarrel];  People v. Daniels (1991) 52 Cal.3d 815, 868, 277 Cal.Rptr. 122, 802 P.2d 906 [same];  People v. Melton (1988) 44 Cal.3d 713, 746, 244 Cal.Rptr. 867, 750 P.2d 741 [defendant's testimony that he had stolen the victim's property after innocently discovering the dead victim's body, required an instruction of theft as a lesser included offense to the charged crime of felony-murder (robbery) ];  People v. Leach (1985) 41 Cal.3d 92, 106, 221 Cal.Rptr. 826, 710 P.2d 893 [where defendant denied complicity in both the robbery and the subsequent murder, the court had no sua sponte duty to instruct on grand theft].)   We have found no decision which does not require the lesser offense to be part of the act which forms the basis for the charged offense, and appellant has not alerted us to any.

Since Geiger adopts the same rationale that underlies People v. Wickersham, et al., the circumstances for giving the lesser related offense instruction must also be the same—i.e., namely, the claimed lesser related offenses of receiving stolen property and unlawful taking, must be part of the same act or series of acts from which the greater offense of robbery springs.   These putative lesser offenses which occurred at a different time and place than the charged robbery, and which do not comprise any part of the armed assault on the victims, do not constitute related offenses within the meaning of Geiger.

Our interpretation is supported by the decision in People v. Randle, supra, 8 Cal.App.4th 1023, 10 Cal.Rptr.2d 804, a case remarkably similar to ours.   There, defendant and an accomplice robbed the victim of his car at gunpoint.   Defendant claimed he was not present at all during the robbery, but just happened to come across the victim's car, with the key inside the ignition and running, and drove it away although he knew it was wrong.   In affirming the trial court's refusal to give lesser related instructions of grand theft-auto and unlawful taking, the appellate court explained, that “in each of the above cited [lesser included and related offense] decisions ․, it is the same act which the defendant argued constituted the lesser offense, and which the prosecution argued constituted the greater offense.   Here, appellant seeks an instruction on lesser offenses which, if they took place at all, took place wholly separate from the Salz robbery and at a time and place different than the robbery.”  (Id. at pp. 1028–1029, 10 Cal.Rptr.2d 804.)

The court went on to explain:  “Although the cases which have analyzed whether one crime is a lesser included or related offense to another have focused primarily on the legal elements of the crimes in question [citations], implicit in their analysis is that the acts which would support the greater and the lesser offenses must essentially be the same.”  (People v. Randle, supra, 8 Cal.App.4th at p. 1030, 10 Cal.Rptr.2d 804.)

In People v. Araujo, supra, 10 Cal.App.4th 700, 12 Cal.Rptr.2d 662, defendant was convicted of residential burglary after breaking into his neighbor's house and stealing personal items, including the victim's pickup truck.   The court refused to instruct on joyriding as a lesser related offense to the charged residential burglary.   In affirming, Division Three of this court held that “joyriding is not a lesser related offense of the charged offense of residential burglary, either in theory or in the context of the evidence presented․  [T]he facts in the case which would be supportive of a finding of either offense are entirely different, occurring as they do at different points in time.”

In Araujo, as here, the evidence that the defendant was found in possession of the stolen truck was used as circumstantial evidence to prove the charged offense of burglary.   The Araujo court rejected any suggestion that this evidentiary link necessarily established a lesser related offense and so do we.  (10 Cal.App.4th at p. 705, 12 Cal.Rptr.2d 662.)

In People v. Hill, supra, 12 Cal.App.4th 798, 15 Cal.Rptr.2d 806, defendant was charged with murder and robbery, and he requested the court to instruct on the lesser related offense of accessory to a felony.   He claimed that the witnesses' identification of him as one of the robbers was incorrect, that he did not participate in the robbery and only happened to be in the car of the actual robber, an acquaintance.  (Id. at pp. 802, 15 Cal.Rptr.2d 806.)   The trial court refused the requested instructions and the appellate court affirmed.   The reviewing court held that issues associated with perpetrator identity only are not related to the elements of the offense charged.  (Id. at pp. 805–806, 15 Cal.Rptr.2d 806;  accord People v. Jones (1993) 14 Cal.App.4th 1252, 1258, 18 Cal.Rptr.2d 673 [evidence which incidentally showed commission of the offense of accessory after the fact was used circumstantially to prove consciousness of guilt and the crime of accessory was not a lesser related offense to charge of first degree murder.] )

The connection between these cases and our own is immediately apparent.   Appellant here denied participating in the robbery in any capacity.   He claimed an alibi;  that he was in Los Angeles at the time.   His requested instructions for receiving stolen property and unlawful taking were based on crimes separate from and committed long after the robbery was completed.   These acts do not comprise any part of the criminal conduct committed against the victims.   On this record, we hold that these offenses were not closely related, and the refusal to instruct on them did not present the jury with any “incentive to convict the defendant of a greater offense than that which he committed.”  (Geiger, supra, 35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303;  People v. Miller (1994) 28 Cal.App.4th 522, 527, 33 Cal.Rptr.2d 663 [grand theft person is not lesser related offense to charge of murder under a robbery-murder theory].)

We also affirm the trial court's ruling on the alternative theory that the first prong in Geiger was not satisfied, i.e., there is no evidence the offense was less than that charged.  (See Geiger, supra, 35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303.)   If the jury believed the victims' testimony, it had to find appellant guilty.   If it did not believe the victims, it had no choice but to acquit appellant.  (Accord People v. Lipscomb (1993) 17 Cal.App.4th 564, 570, 21 Cal.Rptr.2d 445 [if guilty of any crime, defendant was guilty of assault with a deadly weapon and the court properly refused to give lesser related instruction of brandishing];  People v. Trimble (1993) 16 Cal.App.4th 1255, 1260, 20 Cal.Rptr.2d 495 [no duty to instruct on auto tampering when evidence showed that if defendant was guilty at all, he was guilty of burglary as charged];  People v. Elliott (1993) 14 Cal.App.4th 1633, 1640–1642, 18 Cal.Rptr.2d 426 [defendant was guilty of robbery if guilty of any crime, and there was no duty to instruct on accessory after the fact].)   The trial court did not err in refusing to give the requested instructions.

II. & III.***

IV.

 Appellant contends that section 654 precludes convictions of assault with a deadly weapon (count 3) and unlawful vehicle taking (count 5) since they were lesser included offenses of the robbery.   We disagree.

We agree with appellant's statement of the law that multiple convictions may not be based on necessarily included offenses.  (See People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595.)   But, as we discuss, the offenses cited above are not necessarily included offenses within the statutory definition of robbery.

 It is well settled that theft is a lesser necessarily included offense of robbery, which includes the additional element of force or fear.  (See People v. Melton, supra, 44 Cal.3d at p. 746, 244 Cal.Rptr. 867, 750 P.2d 741.)   Appellant argues that his use of the firearm supplied the force and fear element of the robbery and his taking of the victim's car simply completed the robbery.

“An offense is necessarily included within a charged offense ‘if under the statutory definition of the charged offense it cannot be committed without committing the lesser offense, or if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.’   [Citation.].”  (People v. Toro (1989) 47 Cal.3d 966, 972, 254 Cal.Rptr. 811, 766 P.2d 577, quoting Geiger, supra, 35 Cal.3d at p. 517, fn. 4, 199 Cal.Rptr. 45, 674 P.2d 1303;  accord People v. Lagunas (1994) 8 Cal.4th 1030, 1034, 36 Cal.Rptr.2d 67, 884 P.2d 1015;  also People v. Pearson, supra, 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595, quoting People v. Greer (1947) 30 Cal.2d 589, 596, 184 P.2d 512;  People v. Lohbauer (1981) 29 Cal.3d 364, 369, 173 Cal.Rptr. 453, 627 P.2d 183;  People v. Miranda (1994) 21 Cal.App.4th 1464, 1467, 26 Cal.Rptr.2d 610.)

When, as here, the information charged robbery in the statutory language, “an offense is a necessarily included offense when the greater offense cannot be committed without necessarily committing the lesser offense.  [Citation.]”  (People v. Mincey (1992) 2 Cal.4th 408, 452, 6 Cal.Rptr.2d 822, 827 P.2d 388 [statutory definition of torture murder does not necessarily include the offense of child endangerment, since adults may also be victims of torture murder];  In re Hess (1955) 45 Cal.2d 171, 174, 288 P.2d 5 [contributing to the delinquency of a minor is not a necessarily included offense of forcible rape as defined by the statute and conviction of uncharged lesser offense cannot stand].)   Because the crime of robbery can be committed without an assault with a deadly weapon, and since property other than a vehicle may be taken in a robbery, it follows that these crimes are not lesser included offenses so as to bar their conviction along with the robbery.4

Our Supreme Court in People v. Marshall (1957) 48 Cal.2d 394, 309 P.2d 456, specifically held that the statutory definition of robbery does not include unlawful taking or driving of a vehicle.  (Id. at p. 399, 309 P.2d 456;  accord People v. Aho (1984) 152 Cal.App.3d 658, 663–664, 199 Cal.Rptr. 671;  see also People v. Dominguez (1995) 38 Cal.App.4th 410, 45 Cal.Rptr.2d 153 [carjacking is not a lesser included offense to robbery].)   Here, the information charged appellant with robbery in the statutory language only, without specifically alleging the manner in which it was committed or describing the property taken.   Following this state's well-established rule, we conclude that it was not error to convict appellant of both of these offenses.

Appellant cites People v. Rush (1993) 16 Cal.App.4th 20, 20 Cal.Rptr.2d 15, and People v. Irvin (1991) 230 Cal.App.3d 180, 281 Cal.Rptr. 195, to support his claim that where the evidence demonstrates that the acts comprising the lesser offenses where integral to the commission of the robbery, they constitute necessarily included offenses.   In Rush and Irvin, both defendants were convicted of robbery and grand theft auto on facts very similar to ours.   In each case, the robber used a deadly weapon and took the victims' wallet/purse, money and cars.   In reversing the convictions for grand theft auto, each court reasoned that the theft of the car was a continuing transaction within the robbery, and the crime of robbery may not be splintered into separate counts for purposes of multiple convictions based on the type of property taken.  (See People v. Rush, supra, 16 Cal.App.4th at p. 25, 20 Cal.Rptr.2d 15;  People v. Irvin, supra, 230 Cal.App.3d at pp. 184–186, 281 Cal.Rptr. 195.)   This was the same holding in People v. Gamble (1994) 22 Cal.App.4th 446, 451, 27 Cal.Rptr.2d 451, which was decided by the same panel that decided Rush.   Each of these cases spawned a dissent.

 We believe these cases were wrongly decided in light of the doctrine discussed above.   To our mind it is clear that unless the pleading charging the greater offense specifically alleges additional facts which incorporate the lesser offenses, the determination of whether a lesser offense is necessarily included within the greater charged offense must be based solely on the statutory language of that offense, and not on the evidence revealed at trial.  (See People v. Pearson, supra, 42 Cal.3d at pp. 355–356, 228 Cal.Rptr. 509, 721 P.2d 595;  People v. Lohbauer, supra, 29 Cal.3d at p. 369, 173 Cal.Rptr. 453, 627 P.2d 183;  In re Hess, supra, 45 Cal.2d at pp. 174–175, 288 P.2d 5;  cf. People v. Miranda, supra, 21 Cal.App.4th at p. 1467, fn. 1, 26 Cal.Rptr.2d 610 [court expressly rejected the approach in People v. Rush, and would determine lesser included offense from statutory definition alone].)   In each of the cases relied upon by appellant, the information charged defendants with robbery and grand theft auto in the language of the statute.   There were no other facts to except these cases from the Supreme Court's standard.   For this reason, we concur with the meticulous, and in our mind, well-reasoned dissents by Justice Woods in Gamble and Rush, and by Justice Turner in Irvin.

The proper procedure, which was done in this case, is to stay execution of the punishment of the assault and unlawful taking convictions pursuant to section 654.  (See People v. Pearson, supra, 42 Cal.3d at pp. 359–363, 228 Cal.Rptr. 509, 721 P.2d 595;  People v. Aho, supra, 152 Cal.App.3d at p. 664, 199 Cal.Rptr. 671.)

V. & VI.†

Disposition

The judgment is affirmed.   The matter is remanded to the trial court to modify the sentence by staying the execution of the sentence for count four (§ 12021, subd. (a)), such stay to become permanent upon completion of the remaining sentences.   The trial court is also directed to correct the abstract of judgment as indicated above, and thereafter send a certified copy of the corrected abstract of judgment to the Department of Corrections.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise indicated..  FN1. All statutory references are to the Penal Code unless otherwise indicated.

2.   Section 496 reads:  “(a) Every person who buys or receives any property that has been stolen ․ knowing the property to be so stolen․” is guilty of a crime.

3.   Vehicle Code section 10851, subdivision (a), makes it a crime for any person who “drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle․”

FOOTNOTE.   See footnote * ante.

4.   While the information did allege a firearm use enhancement to the robbery (§ 12022.5, subd. (a)), the law is well-settled that enhancement allegations are not considered for purposes of determining lesser included offenses.  (See People v. Toro, supra, 47 Cal.3d at pp. 972–973, 254 Cal.Rptr. 811, 766 P.2d 577.)

FOOTNOTE.   See footnote * ante.

PHELAN, Associate Justice.

KLINE, P.J., and SMITH, J., concur.