California, United States of America
The following excerpt is from People v. Boulware, 20 Cal.App.4th 1753, 25 Cal.Rptr.2d 381 (Cal. App. 1993):
2 Appellant argues in his pro se supplemental brief that the trial court erred in not instructing the jury on the lesser included offense of grand theft. Although appellant is represented by counsel on this appeal we briefly address his pro se arguments to forestall a later claim of ineffectiveness of appellate counsel. Appellant's argument is without merit. The only offense proffered at trial was robbery. Appellant denied all allegations and put on no defense at trial. He was either guilty of robbery or no crime at all, thus no instruction on grand theft was required. (People v. Geiger (1984) 35 Cal.3d 510, 531-532, 199 Cal.Rptr. 45, 674 P.2d 1303.) He also argues that the trial court impermissibly used his prior convictions to impose the upper term on the robbery conviction and then used the same prior convictions to impose enhancements. This argument also is without merit.