People v. Irvin, B044008

• Citation: 281 Cal.Rptr. 195,230 Cal.App.3d 180
• Decision Date: 16 May 1991
• Docket Number: No. B044008,B044008
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jeffrey Mark IRVIN, Defendant and Appellant.

Page 195

281 Cal.Rptr. 195

230 Cal.App.3d 180

The PEOPLE, Plaintiff and Respondent, v. Jeffrey Mark IRVIN, Defendant and Appellant.

No. B044008.

Court of Appeal, Second District, Division 5, California.

May 16, 1991.

Richard D. Miggins, Beverly Hills, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Senior Asst. Atty. Gen., Donald E. De Nicola, Supervising Deputy Atty. Gen. and Jaime L. Fuster, Deputy Atty. Gen., for plaintiff and respondent.

BOREN, Associate Justice.

I. INTRODUCTION

Jeffrey Mark Irvin appeals from the judgment entered after a jury trial resulting in his conviction of second degree robbery with the use of a knife and grand theft of an automobile (Pen.Code, §§ 211, 487, subd. (3), 12022, subd. (d)), ¹ and findings after a court trial of two prior serious felony convictions and service of a prior separate prison term for a felony conviction. (§§ 667, subd. (a), 667.5, subd. (b).) He contends that the trial court erred in failing to dismiss the conviction for grand theft and to exclude evidence of his prior felony convictions for impeachment purposes. The Attorney General contends that the trial court acted without jurisdiction in failing to either impose or strike the one-year enhancement for serving a prior prison term. (§ 667.5, subd. (b).) We agree with defendant that the grand theft conviction must be reversed and dismissed, and we also agree with the Attorney General that we must remand the case to the trial court to allow the trial court to exercise its discretion to impose the one-year enhancement or to strike it pursuant to section 1170.1, subdivision (h).

II. FACTS

Viewed in accordance with the usual rules on appeal (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110), the evidence established that, on March 9, 1989, at about 10:10 p.m., Pamela Proctor (Proctor) was driving her 1988 Mercury Tracer in the "drive-thru" lane of a McDonald's restaurant. While she was waiting behind the car in front of her which was at the cashier's window, defendant approached, held a knife to her chest, and ordered her to "scoot over" so he could drive her car around the corner. She complied, and he entered her driver's seat, backed the car out of the lane, and began to drive across the parking lot toward a Builders Emporium that was closed for the night. As he drove, defendant demanded Proctor's money and purse. She was afraid and gave them to him. As he neared the Builders Emporium, defendant ordered her out of her car, again stating that he was just going around the corner. She got out, and defendant drove away with her car. Proctor walked to the corner, then returned to the restaurant and contacted the police.

In the early morning hours of March 11, 1989, Los Angeles Police Officer Stewart Jaye and his partner were on patrol when they observed defendant run a red light in Proctor's car. The officers followed defendant, lost him, and then found him parked in a nearby alley. Defendant fled to an apartment on foot, but the officers ordered him out and arrested him. Later, Proctor identified defendant as the robber from a photographic display.

III. DISCUSSION

A. Double Conviction Issue

Defendant contends that the trial court should have dismissed the grand theft of an automobile count because it was a lesser and necessarily included offense of the robbery. ² The contention has merit.

It is well settled that multiple convictions may not be based on necessarily included offenses, and where one offense is necessarily included in the other, conviction of the greater offense is controlling, and the defendant may not be convicted of the lesser offense. (People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595.) In the Pearson case, the Supreme Court noted that where a defendant is convicted "of robbery and grand theft for the same act ...[,] the grand theft conviction must be reversed 'because it is a lesser necessarily included offense of the crime of robbery.' " (Ibid., citing People v. Cole (1982) 31 Cal.3d 568, 582, 183 Cal.Rptr. 350, 645 P.2d 1182.) The Attorney General asserts that, under the facts of the instant case, the grand theft charge was not a lesser and necessarily included offense of the robbery charge. However, "[i]t has long been the law of California that robbery is simply an aggravated form of theft with the additional element of force or fear, and that theft is therefore a lesser but necessarily included offense of robbery." (People v. Miller (1974) 43 Cal.App.3d 77, 81, 117 Cal.Rptr. 491.) The Attorney General focuses on the fact that defendant stole first the victim's money and purse and then took her automobile from her. We think for the purpose of this question it is not a matter of great significance what personal property was stolen from the victim. The analysis is the same whether the item stolen is money or an automobile or both.

Robbery is a crime which is frequently spread over distance and varying periods of time. It is generally committed in three phases, which are assault of the victim, seizure of the victim's property, and the robber's escape to a location of temporary safety. (People v. Laursen (1972) 8 Cal.3d 192, 199-200, 104 Cal.Rptr. 425, 501 P.2d 1145.) The crime of robbery is not confined to the taking of property from the victim, and the crime is not completed until the robber has won his way to a place of temporary safety. (People v. Carroll (1970) 1 Cal.3d 581, 585, 83 Cal.Rptr. 176, 463 P.2d 400.) Thus, a robbery may be a continuing crime, spread over distance and time. (People v. Chapman (1968) 261 Cal.App.2d 149, 175, 67 Cal.Rptr. 601.) That defendant here relieved the victim of her purse and money and then a short time later removed her car from her does not alter the continuing nature of the robbery.

To convict an accused of robbery, proof is required that the accused took personal property from the immediate presence of the victim. The Supreme Court has held that "immediate presence" means an area in which the victim could have reasonably expected to exercise some physical control over his or her property. (People v. Hayes (1990) 52 Cal.3d 577, 626-627, 276 Cal.Rptr. 874, 802 P.2d 376, citing People v. Bauer (1966) 241 Cal.App.2d 632, 642, 50 Cal.Rptr. 687.) In Bauer, supra, the defendant murdered the victim and then took the victim's keys and the car parked outside the house in which the murder took place. The appellate court held that the robbery encompassed the taking of the car as well as the keys. (Id. at p. 642, 50 Cal.Rptr. 687.)

We find no authority for the proposition that a robber may be charged with and convicted of a separate robbery, or an additional offense of grand theft, because he or she took more than one item from a solitary victim during a single course of conduct. We note that in staying the punishment for the grand theft auto conviction, the trial court also recognized the obvious: that the acts of theft associated with this robbery occurred pursuant to a single course of conduct. For the question presented here we obtain some guidance from the case of People v. Bauer (1969) 1 Cal.3d 368, 82 Cal.Rptr. 357, 461 P.2d 637, wherein the Supreme Court addressed the separate question of double punishment (pursuant to section 654) in a situation factually related to that in our case. The robbers there held up three elderly women in their home at gun and knife point and ransacked the house after tying up the victims. When the robbers left the house, they also stole the car of one of the victims. Although the double conviction issue was not raised therein, in Bauer the Supreme Court did reject the Attorney General's arguments in support of punishment both for the robbery convictions (three victims, therefore three robbery offenses) and for the grand theft auto conviction. In doing so, the Supreme Court observed: "[W]here a defendant robs his victim in one continuous transaction of several items of property, punishment for robbery on the basis of the taking of one of the items and other crimes on the basis of the taking of the other items is not permissible." (Id. at p. 377, 82 Cal.Rptr. 357, 461 P.2d 637.) The court also observed that "the fact that one of the crimes may have been an afterthought does not permit multiple punishment where there is an indivisible transaction." (Ibid.) There are no facts in the case before us that make the grand theft automobile anymore divisible from the robbery than were the transactions in Bauer.

In the instant case, since the defendant had neither ceased to threaten violence toward the victim nor had yet made his escape at the time he let the victim out of her car and drove away, there was but one act of robbery and that occurred concurrently with the accompanying acts of theft (i.e., the taking of the victim's purse, money, and car). Logically, the theft of the automobile is no more divisible from the rest of the robbery than is the theft of the money from the theft of the purse. (See People v. Estes (1983) 147 Cal.App.3d 23, 28-29, 194 Cal.Rptr. 909, in which the defendant's robbery conviction was affirmed but his theft conviction reversed where the defendant shoplifted merchandise in a store and then assaulted a security guard who tried to apprehend him in the parking lot.)

Although the defendant took more than one item of personal property from Proctor, the few seconds which elapsed between each taking coupled with the circumstance that her car traveled some small distance across the parking lot are wholly insufficient facts to sustain a finding that defendant can be convicted of both robbery and grand theft in this case. The robbery here was a continuous transaction, and the theft of the automobile was necessarily included within that robbery. ³ We therefore order the conviction of grand theft (count III) reversed and direct the trial court...