Theft As a Lesser Included Offense In California
In People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, there was no error in the trial court's failure to instruct on theft as a lesser included offense, where the evidence showed that the defendant gave a cashier a "slight push, 'like a tap,'" to move her away from an open cash register drawer.
In People v. Garcia, supra, 45 Cal.App.4th 1242, 1246, it was enough that the defendant gave a cashier a "slight push, 'like a tap,'" to move her away from a cash register drawer.
"The touching," wrote the court, "was more than incidental and was not merely the force necessary to seize the money. the defendant did not simply brush against the cashier as he grabbed for the money. He intentionally pushed against her to move her out of the way so he could reach into the register. In terms of Morales, supra, pushing the cashier went beyond the 'quantum of force which was necessary' to grab the money out of the cash register. . . . Defendant appears to have been rather polite in . . . giving the cashier a mere 'tap.' Nevertheless, for purposes of the crime of robbery, the degree of force is immaterial." ( People v. Garcia, supra, 45 CAl.App.4th at p. 1246.)