People v. Escobar

California Court of Appeal May 13, 1996 No. B079959Published

Before: Johnson

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Holding. The court held that simple kidnapping is a lesser included offense of kidnapping for robbery, and that grand theft of an automobile is a lesser included offense of robbery when the vehicle is the property taken during the robbery.

Issues

Is the evidence sufficient to support a conviction for kidnapping for the purpose of robbery?
Did the trial court err in permitting the prosecutor to use the term 'carjacking' during trial?
Are simple kidnapping and grand theft of an automobile lesser included offenses of kidnapping for robbery and robbery, respectively?
Did the trial court rely on improper factors in imposing upper-term enhancements for firearm use?

Disposition. reversed in part and affirmed in part

Quotations verified verbatim against the opinion

“The evidence supports the finding that the robbery was ongoing and not complete until after the five-block drive to a more secluded area.”

“The court did not abuse its discretion in permitting the prosecutor to utilize this term as descriptive of the events shown by the evidence.”

“Respondent concedes that the simple kidnapping (count 2) must be reversed because it is included within the kidnapping for the purpose of robbery.”

45 Cal.App.4th 477 (1996) THE PEOPLE, Plaintiff and Respondent,

ANDREW RUDY ESCOBAR, Defendant and Appellant.

Docket No. B079959. Court of Appeals of California, Second District, Division Seven.

May 13, 1996. [479] COUNSEL

Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Tricia A. Bigelow and Olivia Rosales, Deputy Attorneys General, for Plaintiff and Respondent.

[480] OPINION

JOHNSON, J.

Andrew Rudy Escobar appeals from the judgment entered following a jury trial that resulted in his conviction of kidnapping for the purpose of robbery and simple kidnapping (Pen. Code, §§ 209, subd. (b), 207, counts 1, 2), two counts of second degree robbery (Pen. Code, § 211, counts 3, 7), two counts of grand theft of an automobile (Pen. Code, § 487, former subd. 3, counts 4, 10), first degree burglary (Pen. Code, § 459, count 8), attempted first degree robbery (Pen. Code, §§ 664-211, count 9), each with the use of a firearm (Pen. Code, § 12022.5), and evading a police officer (Veh. Code, § 2800.2, count 11), and his plea of guilty to possessing a firearm by a previously convicted felon (Pen. Code, § 12021, count 13) and admission of one prior serious felony conviction (Pen. Code, § 667, subd. (a).)

He contends: "I. The evidence is insufficient to support appellant's conviction of kidnapping for robbery in count 1. II. The trial court committed prejudicial error when it permitted the prosecutor to refer to the charged `kidnappings for robbery' as `carjackings,' when no such crime existed in California. III. Appellant's convictions of counts 2, 3, 4, and 10 must be reversed. IV. The `high-term' enhancements imposed for appellant's `personal use of a gun' in counts I and VIII must be stricken, as the court relied on improper factors in aggravation in selecting those upper terms."

People v. Escobar

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JOHNSON, J.

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