I dissent from the reversal of the grand theft auto counts: grand theft auto is not a lesser included offense of robbery.
Almost three years ago the majority held grand theft auto is an included offense of robbery. (People v. Rush (1993) 16 Cal.App.4th 20, 25 [20 Cal.Rptr.2d 15].) I dissented. (Id. at pp. 27-38.)
I did not understand the majority’s reasoning then and do not understand it now. Perhaps because it is an oxymoron. Rush states that an included offense “analysis is conducted in the abstract, without reference to the . . . facts of the particular case’’ (16 Cal.App.4th at p. 23) and also states the opposite: “The analysis of lesser included offenses ... is based upon the . . . facts in support of the conviction. The inquiry is essentially fact specific . . . .” (Id. at p. 25.)
The majority reiterated their position in People v. Gamble (1994) 22 Cal.App.4th 446 [27 Cal.Rptr.2d 451]. Again I dissented. (Id. at pp. 455-456.)
Since Rush and Gamble two other courts have scrutinized the majority and dissenting views in Rush and Gamble. Both reject the majority view. (People v. Miranda (1994) 21 Cal.App.4th 1464 [26 Cal.Rptr.2d 610] [6th Dist.]; the other opinion has been ordered depublished.)
Whether an offense includes a lesser offense, charged or uncharged, is a common and significant question. If the answer is yes, the trial court may have a sua sponte duty to instruct on the included offense and failure to do so may be reversible error. If yes, a jury cannot render a verdict on the lesser without first deciding the greater. If yes, only one conviction may be rendered, regardless of the number of included offenses. If yes, jeopardy attaches as to all offenses when it attaches to any. (See generally, People v. Rush, supra, 16 Cal.App.4th 20, 37-38 (dis. opn. of Woods (Fred), J.).)
*484At present, Court of Appeal decisions can only bewilder, not enlighten, trial courts. (Compare People v. Irvin (1991) 230 Cal.App.3d 180 [281 Cal.Rptr. 195] [2d Dist., Div. 5]; People v. Gomez (1992) 2 Cal.App.4th 819 [3 Cal.Rptr.2d 418] [2d Dist., Div. 3]; People v. Rush, supra, 16 Cal.App.4th 20 [2d Dist., Div. 7]; People v. Gamble, supra, 22 Cal.App.4th 446 with People v. Miranda, supra, 21 Cal.App.4th 1464 [6th Dist.]; People v. Rush, supra (dis. opn. of Woods (Fred), J.); People v. Gamble, supra, (dis. opn. of Woods (Fred), J.).) Although in 1994 our Supreme Court granted review to a case involving this issue (People v. Scott *(Cal.App.)), it recently dismissed the appeal.
There is a need to resolve this important and recurring issue. I urge our Supreme Court to do so.
On May 28, 1996, the opinion was modified to read as printed above. Respondent’s petition for review by the Supreme Court was denied August 14, 1996. Baxter, J., was of the opinion that the petition should be granted.
Reporter’s Note: Review of opinion (B075451) was dismissed February 15, 1996.