Can a defendant be found guilty of theft if he committed acts of force and intimidation, including binding the victim, sodomizing her, and stabbing her with a screwdriver?

The evidence raised a question whether defendant formed his intent to steal before he completed his acts of force and intimidation which included binding the victim, sodomizing her, and killing her by stabbing her with a screwdriver or after he completed those acts. In the latter situation, defendant could be guilty only of theft, a lesser offense necessarily included within the crime of robbery. (People v. DePriest (2007) 42 Cal.4th 1, 50 (DePriest).) Defendant did not request an instruction on the lesser offense of theft, and the trial court gave no such instruction. The court should have done so.

The majority correctly explains the legal principles that apply here: " ' "Theft is a lesser included offense of robbery, which includes the additional element of force or fear." [Citation.] If intent to steal arose only after the victim was assaulted, the robbery element of stealing by force or fear is absent. [Citations.]' (People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056; see [People v.] Yeoman [(2003)] 31 Cal.4th [93,] 128-129 [to constitute robbery, intent to steal must be formed before or during the application of force].) 'Nevertheless, "the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." [Citation.]' (DePriest, supra, 42 Cal.4th at p. 50.) 'Instructions on after-acquired intent and theft as a lesser included offense of robbery are unwarranted absent "substantial evidence" that the defendant first formed the intent to take the victim's property after applying force. [Citation.]' (People v. Zamudio (2008) 43 Cal.4th 327, 360.)" (Maj. opn., ante, at p. 44.)