THE PEOPLE, Plaintiff and Respondent, v. ERNESTO ORTEGA et al., Defendants and Appellants, 19 Cal. 4th 686

Opinion GEORGE, C. J. In this case, we consider whether a defendant charged with carjacking, robbery, and theft, based upon the commission of a single act or course of conduct, may be convicted of multiple offenses. As we shall explain, we conclude that a defendant may be convicted of both carjacking and robbery, or of both carjacking and theft, but may not be convicted of both robbery and theft, based upon the commission of a single act or course of conduct.

I Defendants Ernesto Ortega, Alexander Rayon, David Higuera, and Luis Avila were charged in an amended information filed September 21, 1994, with two counts of carjacking (Pen. Code, § 215), two counts of second degree robbery (§ 211), and one count of grand theft of a vehicle (former § 487, subd. 3). Additionally, enhancements were alleged against some of the defendants.

Defendants were found guilty as charged following a jury trial, at which the evidence (considered in the light most favorable to the judgment) showed that on June 16, 1994, shortly before 8:30 p.m., 17-year-old Jose Rubio, accompanied by his 13-year-old friend Bernardo Leyva, was on his way to attend his girlfriend’s junior high school graduation. Looking for a place to park, Rubio was driving his van down a street near the school when a vehicle turned in front of him, blocking his way.

The occupants of the other vehicle, who later were identified as the four defendants, quickly left their vehicle and ran to Rubio’s van. One of them was carrying a large piece of wood. Avila asked Rubio whether he was from the “Tonerville” gang, and Rubio said he was not. Avila asked Rubio what he was doing in Avila’s neighborhood, and Rubio explained he was attending his girlfriend’s graduation. Avila then said, “Fuck Tonerville,” and demanded that Rubio empty his pockets and give him the van. Rubio refused and said he was not a member of a gang.

Avila again said, “Fuck Tonerville,” punched Rubio in the face twice, and then opened the door of the van and clubbed Rubio with the piece of wood. Rubio left the van and was punched repeatedly by each of the defendants. When Rayon demanded Rubio’s wallet, Rubio complied. As Rubio removed his wallet from his pocket and gave it to Rayon, Rayon saw Rubio’s pager and took it as well. Rayon looked in the wallet, saw that it contained no money, and threw it back to Rubio. Ortega went around to the passenger side of the van and punched Leyva through the open window.

Ortega opened the door and tried to pull Leyva out of the vehicle, but Leyva’s seatbelt was fastened, leaving him hanging by the belt halfway out of the van. Ortega began to kick Leyva. Leyva got free of the seatbelt and fell to the pavement. Ortega continued to kick Leyva and then pulled off Leyva’s sweater. Leyva got up and ran, and Ortega and Avila entered the van and drove away, with the other vehicle following. Rubio and Leyva summoned the police. Ortega, Rayon, and Higuera were located near the scene of the crime and were arrested.

Avila was arrested later when he went to the police station to recover his automobile. During closing argument, the prosecutor told the jury that the two counts of carjacking were based upon the taking of the vehicle from the possession of Rubio and Leyva, respectively. The two counts of robbery were based upon, respectively, the forcible theft of Rubio’s wallet and pager, and the forcible theft of Leyva’s sweater. The single count of grand theft was based upon the theft of the vehicle. As mentioned above, the jury found each defendant guilty as charged on all five counts.

Ortega having waived his right to a jury determination of the truth of the allegation that he had served a prior prison term, the court, following a brief hearing, found the allegation true. The prior prison term allegation as to Higuera was dismissed on motion of the prosecution. On count 1 (carjacking), the court sentenced each defendant to the upper term of nine years in prison. Avila was sentenced to an additional year for personally using a deadly weapon in the commission of this offense.

As to counts 2 (carjacking), 3 (the robbery of Rubio), and 5 (grand theft), sentences were imposed and stayed pursuant to the proscription against multiple punishment contained in

section 654. On count 4 (the robbery of Leyva), Ortega and Higuera each were sentenced to a consecutive term of one year, Avila was sentenced to a concurrent term of three years, and Rayon was sentenced to a concurrent term of five years. Ortega was sentenced to an additional term of one year on the prior prison term finding. Thus, the total prison terms imposed were 11 years for Ortega, 10 years for Higuera and Avila, and 9 years for Rayon.

The Court of Appeal affirmed defendants’ convictions for both carjacking and robbery, but reversed their convictions for grand theft, holding that that offense is a lesser included offense of carjacking. We granted the People’s petition for review and subsequently requested supplemental briefing on the issues whether defendants properly could be convicted of both carjacking and robbery and whether defendants’ robbery convictions were based, in whole or part, upon the taking of the van.

II The issue before us concerns when a defendant may receive multiple convictions for offenses arising out of a single act or course of conduct. This issue must be distinguished from the closely related question of when a defendant may receive multiple sentences based upon a single act or course of conduct. This important distinction is reflected in the difference between sections 954 and

Section 954 states that “[a]n accusatory pleading may charge . . . different statements of the same offense” and “the defendant may be convicted of any number of the offenses charged.”

Section 654 states: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of punishment, but in no case shall the act or omission be punished under more than one . . . .” In People v.

Pearson (1986) 42 Cal.3d 351, 359 [228 Cal.Rptr. 509, 721 P.2d 595], we recognized the tension between these statutes, observing: “This court has long struggled with the problem of permitting multiple convictions while protecting the defendant from multiple punishment.” The solution we have adopted is, in general, to permit multiple convictions on counts that arise from a single act or course of conduct—but to avoid multiple punishment, by staying execution of sentence on all but one of those convictions. (Id. at p. 360.) But despite the seemingly absolute language of

section 954 (“the defendant may be convicted of any number of the offenses charged”), there is an exception to the general rule permitting multiple convictions. “Although the reason for the rule is unclear, this court has long held that multiple convictions may not be based on necessarily included offenses. [Citations.]” (People v.

Pearson, supra, 42 Cal.3d 351, 355, italics in original.) “ ‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’ [Citations.]” (Ibid.) A defendant who commits a battery may not be convicted of both battery and assault, because “[a]n assault is a necessary element of battery, and it is impossible to commit battery without assaulting the victim.” (People v. Greer (1947) 30 Cal.2d 589, 597 [184 P.2d 512], not followed on other grounds in People v.

Pearson, supra, 42 Cal.3d 351, 358, and overruled on other grounds by People v. Fields (1996) 13 Cal.4th 289, 308, fn. 6 [52 Cal.Rptr.2d 282, 914 P.2d 832].) In contrast, a defendant properly may be convicted of two offenses if neither offense is necessarily included in the other, even though under

section 654 he or she could not be punished for more than one offense arising from the single act or indivisible course of conduct. The necessarily included offense rule is used to determine whether a defendant improperly has been convicted of both a greater offense and an included offense, or properly has been convicted of separate offenses. III The Court of Appeal held that defendants could not properly be convicted of both carjacking and grand theft, based upon the taking of the van, because theft is a necessarily included offense of carjacking.

We disagree. “ ‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” (§ 215, subd. (a).)

Section 484, subdivision (a), defines the crime of theft: “Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another ... is guilty of theft.”

Section 486 declares: “Theft is divided into two degrees, the first of which is termed grand theft; the second, petty theft.”

Section 487, subdivision (d), defines grand theft to include the theft of an automobile. Carjacking requires two elements that are not required for theft: that the vehicle be taken from the possession or immediate presence of another, and that the taking be “accomplished by means of force or fear.” (Compare

section 215 with

section 484.) Theft requires an element—the specific intent to permanently deprive a person of property—that is not required for carjacking. (People v. Jaso (1970) 4 Cal.App.3d 767, 771 [84 Cal.Rptr. 567]; People v. Hamilton (1995) 40 Cal.App.4th 1137, 1142 [47 Cal.Rptr.2d 343].) Accordingly, neither carjacking nor theft is a necessarily included offense of the other, because it is possible to commit either offense without committing the other. (People v. Pearson, supra, 42 Cal.3d 351, 355.) Defendants properly were convicted of both carjacking and grand theft.

IV The Court of Appeal was correct, however, in reversing defendants’ convictions for grand theft, although it did so for the wrong reason. As explained below, it is well settled that theft is a necessarily included offense of robbery. Accordingly, defendants could not properly be convicted of both robbery and theft based upon the same conduct. “ ‘Theft is a lesser included offense of robbery, which includes the additional element of force or fear.’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055 [60 Cal.Rptr.2d 225, 929 P.2d 544].) This rule dates back to the common law.

Professor Perkins states: “Since robbery ‘is a species of aggravated larceny’ a single taking of property will obviously not support a conviction of larceny as a separate offense in addition to the conviction of robbery.” (Perkins, Criminal Law (3d ed. 1982) p. 350, fns. omitted.) Perkins left no doubt that this rule applies when the taking of property constitutes grand larceny, citing in support of this rule a case holding that grand larceny is a lesser included offense of robbery. (Id. at p. 350, fn. 47.) It is not surprising that the ancient rule that larceny is a necessarily included offense of robbery applies when the degree of the larceny is grand larceny, because the term larceny as used in the common law generally referred to grand larceny.

Prior to the year 1275, there was but one form of larceny. In that year, an English statute divided larceny “into two grades: grand larceny and petit larceny, depending upon the value of the property taken. If the value of the property was more than 12 pence, the offense was grand larceny; if the value was 12 pence or less, the offense was petit larceny. But ‘larceny was a felony, whether grand or petit.’ It was only the punishment which differed.

Grand larceny was punishable by death; but petit larceny was punishable by forfeiture of goods and whipping.” (3 Wharton, Criminal Law (15th ed. 1995) § 344, p. 361, fns. omitted.) Grand larceny was considered to be the general offense, with petit larceny considered to be a lesser form of that offense: “As a matter of logic grand larceny might have been regarded as an aggravated form of larceny, but this was not the view.

On the contrary, if the value of the property stolen did not exceed twelve pence this was regarded as a mitigating circumstance which entitled the thief to be spared from the extreme penalty (death).” (Perkins, Criminal Law, supra, at p. 339.) This court has applied the rule that theft, whether grand theft or petty theft, is a necessarily included offense of robbery—in a long, unbroken line of authority stretching from the decisions in People v. Jones (1878) 53 Cal. 58, 59, and People v. Church (1897) 116 Cal. 300 [48 P. 125], to our holding in People v.

Cole (1982) 31 Cal.3d 568, 582 [183 Cal.Rptr. 350, 645 P.2d 1182], (See also People v. Marshall (1957) 48 Cal.2d 394, 400 [309 P.2d 456] [“[T]he. theft of an automobile ... is included in the offense of robbery by the taking of an automobile . . . .”].) Despite the foregoing authority, a dispute has arisen regarding whether grand theft is a necessarily included offense of robbery. The defendant in People v. Irvin, supra, 230 Cal.App.3d 180, robbed the victim at knifepoint, taking her automobile and other property, and was convicted of both robbery (§211) and grand theft of an automobile (former § 487, subd. 3).

The defendant contended he could not be convicted of both offenses, because grand theft is a necessarily included offense of robbery.

The Court of Appeal agreed, stating: “ ‘[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.’ [Citation.]” (230 Cal.App.3d at p. 184.) One justice dissented in Irvin, arguing that grand theft of an automobile is not a necessarily included offense of robbery, because “robbery . . . can be committed without committing the grand theft of an automobile.

The essential element of the less serious offense, the taking of an automobile, is not an element of the greater offense of robbery.” (People v. Irvin, supra, 230 Cal.App.3d 180, 194 (dis. opn. of Turner, P. J.).) This issue was revisited in People v. Rush, supra, 16 Cal.App.4th 20, where again it was held that grand theft is a necessarily included offense of robbery where both offenses are based upon the same taking of an automobile.

As in Irvin, one justice dissented in Rush, arguing that grand theft of an automobile is not a necessarily lesser included offense of robbery, because robbery can be committed without taking an automobile. These different views again were reflected in majority and dissenting opinions in People v. Gamble, supra, 22 Cal.App.4th 446. The justice who dissented in Gamble concluded in another dissent, in People v.

Guzman, supra, 45 Cal.App.4th 1023, that grand theft of property worth more than the threshold amount of $400 also is not a lesser included offense of robbery, because robbery may be based upon the forcible taking of property of a lesser value. In each of these cases, the dissenting justice erroneously treated every form of theft as a separate offense. As noted above, the crime of theft is divided into two degrees, grand theft and petty theft. (§ 486.) Grand theft, therefore, is not a separate offense, but simply the higher degree of the crime of theft.

Section 487 defines grand theft to include theft of property worth more than $400 (subd. (a)) and the theft of an automobile (subd. (d)). Several other statutes also define certain forms of theft to be grand theft (e.g., §§ 487a [theft of the carcass of certain animals], 487d [theft of gold dust from a mining claim]).

Section 488 states: “Theft in other cases is petty theft.” “In charging a crime divided into degrees . . . , it is not necessary to allege the particular degree, or the facts establishing the degree. The general pleading of the offense will support proof of the higher or lower degree. [Citations.]” (4 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Proceedings Before Trial, § 2080, p. 2450; see, e.g., People v. Gallego (1990) 52 Cal.3d 115, 188-189 [276 Cal.Rptr. 679, 802 P.2d 169] [murder]; In re Walker (1974) 10 Cal.3d 764, 781 [112 Cal.Rptr. 177, 518 P.2d 1129] [murder]; People v.

Hawkins (1978) 85 Cal.App.3d 960, 966 [149 Cal.Rptr. 855] [burglary]; People v. Nunez (1970) 7 Cal.App.3d 655, 663 [86 Cal.Rptr. 707] [burglary].) More specifically,

section 952 states, in part: “In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another.” It is not required that the charging document specify whether the alleged crime constitutes grand theft or petty theft. (People v. Anderson (1961) 55 Cal.2d 655, 657 [12 Cal.Rptr. 500, 361 P.2d 32].) Because theft is a necessarily included offense of robbery (People v. Bradford, supra, 14 Cal.4th 1005, 1055), it follows that both degrees of theft, grand and petty, are necessarily included offenses of robbery.

Focusing upon whether a particular form of theft necessarily is included within the offense of robbery misses the point, recognized in our early case law, that the crime of theft, in one form or another, always is included within robbery. The defendants in People v. Covington, supra, 1 Cal.2d 316, were convicted of robbery.

We reversed their robbery convictions, because the trial court erroneously had refused to instruct the jury that it could find the defendants guilty of the lesser offense of either petty theft or grand theft, depending upon the value of the property taken. (Id. at p. 320.) The defendants in People v. Nelson, supra, 56 Cal. 77, were charged with robbery, but convicted of grand larceny.

We affirmed the judgment of conviction, stating: “It was competent, under the information, for the jury to convict of larceny; and when the property is taken from the person of another, the offense is grand larceny, irrespective of the amount taken. [Citation.]” (Id. at p. 80.) One reason for the continuing dispute concerning whether grand theft is a necessarily included offense of robbery may be that the majority in People v. Rush, supra, 16 Cal.App.4th 20, employed flawed reasoning in reaching the correct conclusion that grand theft is a necessarily included offense of robbery.

The court in Rush accepted the prosecutor’s mistaken premise that, based solely upon the elements of the offenses, grand theft of an automobile was not a necessarily included offense of robbery, because “robbery may be committed, in the abstract, without committing automobile theft.” (Id. at p. 23.) The Court of Appeal added, however, that this conclusion did not end the inquiry, and proceeded to examine “the pleadings and facts in support of the conviction.” (Id. at p. 25.) Based upon the language of the information and the evidence introduced at the preliminary hearing, the appellate court held that the defendant could not be convicted of both robbery and grand theft.

The dissent in Rush revealed the flaw in the majority’s reasoning: “[J]ust because, in fact, one indivisible act simultaneously violates two statutes . . . does not mean the two offenses are ‘necessarily’ included. Factual inextricability does not equal ‘necessarily included.’ ” (People v.

Rush, supra, 16 Cal.App.4th 20, 31 (dis. opn. of Woods (Fred), J.), italics in original.) But the dissent then erroneously concluded that the defendant properly could be convicted of both grand theft and robbery based upon a single taking of an automobile, because “one can commit a robbery without committing grand theft vehicle.” (Id. at p. 35, italics in original.) The majority in Rush erred by examining the evidence in support of the conviction in order to determine whether multiple convictions were permitted.

The determination of whether an offense cannot be committed without necessarily committing the included offense must be based, however, upon the statutory

definitions of both offenses and the language of the accusatory pleading. (People v. Pearson, supra, 42 Cal.3d 351, 355-356; People v. Marshall, supra, 48 Cal.2d 394, 399.) There are several practical reasons for not considering the evidence adduced at trial in determining whether one offense is necessarily included within another. Limiting consideration to the elements of the offenses and the language of the accusatory pleading informs a defendant, prior to trial, of what included offenses he or she must be prepared to defend against.

If the foregoing determination were to be based upon the evidence adduced at trial, a defendant would not know for certain, until each party had rested its respective case, the full range of offenses of which the defendant might be convicted.

Basing the determination of whether an offense is necessarily included within another offense solely upon the elements of the offenses and the language of the accusatory pleading promotes consistency in application of the rule precluding multiple convictions of necessarily included offenses, and eases the burden on both the trial courts and the reviewing courts in applying that rule.

Basing this determination upon the evidence would require trial courts to consider whether the particular manner in which the charged offense allegedly was committed created a sua sponte duty to instruct that the defendant also may have committed some other offense. In order to determine whether the trial court proceeded correctly, a reviewing court, in turn, would be required to scour the record to determine which additional offenses are established by the evidence underlying the charged offenses, rather than to look simply to the elements of the offenses and the language of the accusatory pleading.

The dissent in Rush properly limited its inquiry to the elements of the two offenses, but erred in concluding that grand theft of an automobile is not a lesser included offense of robbery because robbery can be committed without taking an automobile. The error of the dissent in Rush is that it failed to consider that grand theft is simply one of the two degrees of the general crime of theft, and that the theft of an automobile is simply one of the many forms of theft that constitute grand theft. Theft, in whatever form it happens to occur, is a necessarily included offense of robbery.

As noted above, a long and unbroken line of authority from this court supports this conclusion. (See, ante, pp. 694-695 and fn. 3.) We reaffirm the well-established rule that a defendant may not be convicted of both robbery and grand theft based upon the same conduct. (People v. Cole, supra, 31 Cal.3d 568, 582; People v. Marshall, supra, 48 Cal.2d 394, 400.) V In the present case, therefore, whether defendants properly were convicted of both robbery and theft depends upon whether those convictions were based upon the same conduct.

As we shall explain, it appears that defendants’ convictions for theft were based, at least in part, upon the same conduct underlying defendants’ robbery convictions under count 3 of the amended information. Count 3 alleges that defendants' committed robbery by forcibly taking “personal property” from Rubio. Count 5, the theft count, alleges that defendants took “a certain automobile” from Rubio. During closing argument, the prosecutor told the jury that the robbery charged in count 3 was based upon the forcible theft of Rubio’s wallet and pager.

The Court of Appeal in this case concluded, however, that defendants’ robbery convictions were based in part upon the taking of the van, because “[t]he record shows [defendants] took the victims’ personal property, in addition to the van, by means of force or fear.” We agree with the Court of Appeal that the property taken in the robbery of Rubio, charged in count 3, included the van. “When a defendant steals multiple items during the course of an indivisible transaction involving a single victim, he commits only one robbery or theft notwithstanding the number of items he steals.” (People v.

Brito (1991) 232 Cal.App.3d 316, 326, fn. 8 [283 Cal.Rptr. 441].) In People v. Irvin, supra, 230 Cal.App.3d 180, the defendant entered the victim’s automobile by threatening her with a knife, demanded and received her money and purse, then ordered the victim to leave the automobile,- and drove away in the vehicle.

The Court of Appeal affirmed the defendant’s conviction for robbery, but reversed his conviction for grand theft of an automobile, concluding that the robbery necessarily included the theft of the vehicle: “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.” (Id. at p. 185; People v. Gamble, supra, 22 Cal.App.4th 446, 450; People v. Rush, supra, 16 Cal.App.4th 20, 25; cf. People v.

Green (1996) 50 Cal.App.4th 1076, 1085 [58 Cal.Rptr.2d 259] [circumstances that carjacking was separated in time and location from a robbery involving the taking of a purse, during which interval the defendant sexually assaulted the victim, supported the trial court’s “finding the taking of the purse and the taking of the vehicle were separate incidents”].) In the present case, therefore, defendants may not be convicted of both the robbery of Rubio, as charged in count 3, and the theft of the van. Defendants’ convictions for grand theft, as charged in count 5, must be reversed. (People v.

Moran (1970) 1 Cal.3d 755, 763 [83 Cal.Rptr. 411, 463 P.2d 763].) VI Whether defendants may be convicted of both robbery and carjacking based upon the same conduct raises different questions. In enacting the carjacking statute (§ 215), the Legislature made clear its intention to permit multiple convictions of carjacking and robbery based upon the same conduct. As the Court of Appeal observed in the present case, subdivision (

c) of

section 215 states: “This

section shall not be construed to supersede or affect

Section 211 [robbery]. A person may be charged with a violation of this

section and

Section 211. However, no defendant may be punished under this

section and

Section 211 for the same act which constitutes a violation of both this

section and

Section 211.” The Court of Appeal concluded that subdivision (

c) specifically permits convicting a defendant of both carjacking and robbery based upon the same conduct. We agree. Although subdivision (

c) of

section 215 does not explicitly address whether a defendant may be convicted of both carjacking and robbery based upon the same conduct (only that he or she may be charged with both offenses), it does state that no defendant may be punished for both carjacking and robbery based upon the same conduct. There would be no need for the Legislature to preclude multiple punishment for carjacking and robbery unless a defendant could be convicted of both carjacking and robbery based upon the same conduct. Subdivision (

c) of

section 215, therefore, constitutes an expression of legislative intent permitting multiple convictions of carjacking and robbery based upon the same conduct. (People v. Green, supra, 50 Cal.App.4th 1076, 1083-1084; People v. Antoine (1996) 48 Cal.App.4th 489, 498 [56 Cal.Rptr.2d 530]; People v. Dominguez (1995) 38 Cal.App.4th 410, 419 [45 Cal.Rptr.2d 153].) VII The judgment of the Court of Appeal is affirmed. Mosk, J., Kennard, J., Werdegar, J., and Brown, J., concurred. All further statutory references are to the Penal Code, unless otherwise indicated. The amended information charged a violation of former

section 487, subdivision 3, which defined grand theft to include theft “[w]hen the property taken is an automobile.” Effective October 11, 1993 (nearly nine months before the charged offense was committed),

section 487 had been amended to delete this provision and

section 487h had been enacted, subdivision (

a) of which provided that “[e]very person who feloniously steals or takes any motor vehicle ... is guilty of grand theft.” Effective January 1, 1997,

section 487h was repealed and

section 487 was amended to again provide, this time in subdivision (d), that grand theft includes theft “[w]hen the property taken is an automobile . . . .” Defendants have not raised, and we do not consider, the issue whether these circumstances affect the validity of the judgment of conviction for grand theft. Other cases that hold that grand theft is a lesser included offense of robbery include People v. Webster (1991) 54 Cal.3d 411 [285 Cal.Rptr. 31, 814 P.2d 1273]; People v. Covington (1934) 1 Cal.2d 316 [34 P.2d 1019]; People v. Nelson (1880) 56 Cal. 77; People v.

Guzman (1996) 45 Cal.App.4th 1023, 1028 [53 Cal.Rptr.2d 67]; People v. Gamble (1994) 22 Cal.App.4th 446 [27 Cal.Rptr.2d 451]; People v. Rush (1993) 16 Cal.App.4th 20 [20 Cal.Rptr.2d 15]; People v. Jones (1992) 2 Cal.App.4th 867, 869 [3 Cal.Rptr.2d 602]; People v. Irvin (1991) 230 Cal.App.3d 180 [281 Cal.Rptr. 195]; and People v. Roberts (1976) 57 Cal.App.3d 782, 787, footnote 1 [129 Cal.Rptr. 529]. The only published decision that contains language to the contrary is People v.

Goins (1981) 118 Cal.App.3d 923, 926 [173 Cal.Rptr. 655], in which a divided Court of Appeal stated, without citation of supporting authority or discussion of the substantial authority to the contrary, that “grand theft is not necessarily included [in the crime of robbery] for the reason that robbery can be committed without necessarily committing grand theft.” The court in Goins nevertheless affirmed the judgment of conviction for grand theft where the defendant had been charged with robbery, because the defendant had requested that the jury be instructed that it could find the defendant guilty of the necessarily included offense of grand theft.

To our knowledge, no decision has cited the decision in Goins for the proposition that grand theft is not a necessarily included offense of robbery. By contrast, People v. Morales (1975) 49 Cal.App.3d 134, 141 [122 Cal.Rptr. 157] has been cited repeatedly for the proposition that, in a prosecution for robbery and murder, “[t]he trial court . . . erred in failing to instruct on the lesser included offense of grand theft.” (People v. Jones, supra, 2 Cal.App.4th 867, 869; People v. Lescallett (1981) 123 Cal.App.3d 487, 491 [176 Cal.Rptr. 687]; People v.

Roberts, supra, 57 Cal.App.3d 782, 787, fn. 1.) We now disapprove the decision in People v. Goins, supra, 118 Cal.App.3d 923, to the extent that it is inconsistent with our holding in the present case. The concurring and dissenting opinion in the present case makes the same error, stating “the defendants were not convicted of simple theft.” (Conc. & dis. opn. of Chin, J., post, p. 704.) There is no such crime as “simple theft.” Defendants were convicted of theft as defined in

section 484. Because the theft was of an automobile, the degree of the crime is grand theft. (§§ 486, 487, subd. (d).) Of course, if the evidence admitted at trial is insufficient to determine the degree of the theft, the defendant may be convicted only of petty theft pursuant to

section 1097, which states: “When it appears that the defendant has committed a public offense, or attempted to commit a public offense, and there is reasonable ground of doubt in which of two or more degrees of the crime or attempted crime he is guilty, he can be convicted of the lowest of such degrees only.” In light of our holding, we need not, and do not, decide whether defendant properly could be convicted of the robbery of Leyva, charged in count 4, and the theft of the van, as charged in count 5.