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Name: People v. Powell
Case #: G046265
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 03/05/2013
Subsequent History: Review granted and then dismissed, depublished

Penal Code section 532 (theft by false pretenses) is not a lesser included offense of robbery under either the elements test, or as applied to this case, the accusatory pleading test. Appellant was charged by information with robbery in violation of Penal Code sections 211 and 212.5. At trial, the alleged victim testified that appellant took money from her after representing that he would be able to deliver her sister to her. The sister was trying to enter the United States from Mexico. Appellant testified that he was merely assisting Eduardo who had set up an arrangement whereby the victim would give $5,000 in exchange for the presumed delivery of her sister. Although the victim provided the money, the sister was never delivered. At the close of evidence, the court, over the objection of appellant, instructed the jury with modified CALCRIM No. 1804 (theft by false pretenses), as a lesser crime to robbery. The jury acquitted appellant of robbery but convicted him of theft by false pretenses. Reversed. Due process requires that the accused be advised of the charges against him so that he can prepare and present his defense. A defendant can be convicted of an uncharged crime only if it is necessarily included in the charged crime. A lesser offense is necessarily included in the charged offense if either the elements test or the accusatory pleading test is met. Under the elements test, theft by false pretenses is not a lesser included to robbery because it is possible to commit robbery without committing theft by false pretenses; robbery does not require the making of a false pretense or representation, a necessary element of theft by false pretenses. Additionally, under section 532, subdivision (b), theft by false pretenses requires corroborating evidence of the theft whereas robbery does not. In this case, under the accusatory pleading test, theft by false pretenses was also not a lesser of robbery because the facts alleged in the accusatory pleading did not include the requisite elements of the theft by false pretenses offense. The erroneous instruction here was prejudicial because it allowed the jury to convict appellant of an offense of which he had no reasonable notice.