Opinion
Defendant was charged with: (count I) robbery, in violation of section 211 of the Penal Code; and (count II) assault with a deаdly weapon, in violation of subdivision (a) of section 245 of the Penal Code. After a trial by the court, trial by jury having been duly waived, defendant was found guilty of robbery in the second degree and of assault by means likely to produce great bоdily injury, and with a deadly weapon. He was sentenced to state prison on the robbery count and to one yeаr in the county jail on the assault count, the sentence of the assault count being stayed under the
Niles
formula
(People
v.
Niles
(1964)
The evidence for the People showed that defendant and another man had attacked an elderly man as he was returning tо his room, hitting him in the face with a broken wine bottle and taking his property. Defendant was arrested after a chasе.
*639 On this appeal, defendant does not challenge the sufficiency of the evidence to sustain the findings of guilt on bоth counts. His single contention here is that:
“Appellant’s Assault Conviction in Count 2 Must Be Reversed as it Constitutes a Double Conviction for an Offense Which Was Necessarily Included Within His Robbery Conviction”
In support of that contention, defendant relies primarily on our opinion in
People
v.
Westbrook
(1976)
Robbery was defined in former section 211 of the Penal Code as follows: “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of fоrce or fear.”
The definition of robbery in the second degree, of which defendant was convicted, is found in formеr section 211a of that code, which section reads as follows: “All robbery which is perpetrated by torture or by а person being armed with a dangerous or deadly weapon, and the robbery of any person who is performing his duties as operator of any motor vehicle, streetcar, or trackless trolley used for the transportation of persons for hire, is robbery in the first degree. All other kinds of robbery are of the second degree.”
From the language of those two sections, it would appear that robbery in the second degree may be accomрlished by means not involving the use of a weapon at all, but by physical force or by putting the victim in fear by means not involving even an assault or attempt to assault.
*640
We need not, in this case, determine whether, under some circumstances, assault with a deadly weapon is an included offense where there is a conviction of robbery in the first degree, charged as such. In
People
v.
Sutton
(1973)
Again, as in
Westbrook,
that statement was made without an analysis of the problem and we reject it as binding authority. In
People
v.
Logan
(1953)
Contrary to our brief statements in
Guerin
and in
Westbrook,
stands the decision in
Higgins
v.
Superior Court
(1960)
*641 Our conclusion, after considering all of the above cases, is that as applied to this cаse, Higgins was correct and that defendant was properly found guilty on both counts. Because the robbery and the аssault were parts of the same episode, the result reached by the trial court—namely, a stay in accordance with Niles—was proper.
The judgment is affirmed.
Files, P. J., and Alarcon, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied January 17, 1979.
Notes
Wе said: “As set forth above, defendant was convicted of, and sentenced on, all three counts. However, the аggravated assault charged and proved was no more than the kind of violence typical of robbery and of rape. As such, it was a mere part of those crimes. Section 654 of the Penal Code prohibits a double conviction under those circumstances.”