Residential Robbery is a Lesser Included Offense of Home Invasion Robbery
July 2nd, 2018

Multiple convictions may not be based on necessarily included offenses based on one criminal act. (See, e.g., People v. Moran (1970) 1 Cal.3d 755, 763 [“If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed”].)

In People v. Hutchinson (2018) 20 Cal.App.5th 539, 550 a jury convicted the defendant of five counts of first degree residential robbery and five counts of home invasion robbery per PC 211. Each home invasion robbery count included an allegation that defendant and three others acted in concert and entered an inhabited dwelling house during the commission of the robbery per PC 213(a)(1)(A).


The reviewing court reversed the five counts of first degree residential robbery because they were not separate offenses from the five counts of home invasion robbery. Home invasion robbery has all of the elements of first degree residential robbery, with the additional element that it was done in concert with one or more other people. It does not create a separate offense. Therefore, all five of the first degree residential robbery convictions were merely lesser included offenses of the home invasion robbery offenses.

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