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Petty Theft With A Prior Is A Lesser Included Offense Of Robbery

By Jeremy Price

A jury convicted a criminal defendant of one count of second degree robbery in violation of California Penal Code (PC) section 211 and one count of petty theft with a prior theft-related conviction in violation of PC section 666. Both counts arose out of a single incident. The alleged victim of the robbery charge was a store employee, and the alleged victim of the petty theft count was the store itself. Division Eight of the Second District Court of Appeal reversed the petty theft conviction because it was a lesser included offense of the robbery count. Robbery cannot be committed without necessarily committing petty theft. This is true even though the petty theft offense here included the added allegation of a prior conviction. According to the Court: "a defendant cannot be convicted both of robbery and petty theft with a prior, arising from the same incident, because the prior conviction is a sentencing factor, rather than an element, so petty theft with a prior is a lesser included offense of robbery...continue to full post

Full post as published by Criminal Appeal on December 17, 2007 (boomark / email).