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Name: People v. Burns
Case #: B205324
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 04/08/2009

Where a person wrests away personal property from another person who resists the effort to do so, the crime is robbery and there is no need to instruct on a lesser included offense of grand theft. According to the evidence presented at trial, appellant followed the victim into a building where he stepped on her foot, grabbed and pulled down on her purse, forcibly took it from her, and then ran out the door with it. Appellant presented a defense of mistaken identity but on appeal argued that the trial court erred in not instructing on a lesser offense of grand theft person to the charge of robbery. Theft in any degree is a lesser included offense to robbery, since all of its elements are included in robbery, the difference being that robbery includes the added element of force or fear. A lesser included offense instruction must be given where there is substantial evidence to support it. (People v. DePriest (2007) 42 Cal.4th 1.) Here, there was no basis in the record for a jury to find that there was nothing more than a grand theft person. Appellant’s strength and act of stepping on the victim’s foot to overcome her resistance and wrench the purse from her determined grasp resulted in the crime being a robbery, not merely theft.