Is theft a lesser included crime of robbery?

Theft is a lesser included offense to robbery, which includes the additional element of force or fear. (People v. Melton (1988) 44 Cal.3d 713, 746, 244 Cal.Rptr. 867, 750 P.2d 741; People v. Covington (1934) 1 Cal.2d 316, 320-321, 34 P.2d 1019.) The court must instruct on a lesser included offense on its own motion " 'when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.' " (People v. Melton, supra, 44 Cal.3d 713, 746, 244 Cal.Rptr. 867, 750 P.2d 741.) Had a properly instructed jury convicted defendant of theft, the evidence would be sufficient to uphold the conviction.

People v. Ramkeesoon (1985) 39 Cal.3d 346, 216 Cal.Rptr. 455, 702 P.2d 613 presented an analogous record in that defendant was charged with robbery and murder, and the court failed to instruct on theft where the defendant testified that his intent to steal arose after the killing. There defendant's convictions of first degree murder and robbery were reversed on the ground that the trial court erred in refusing to instruct on larceny and theft as a lesser included offense of robbery.