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Unable to answer the door, she asked Villanueva, “Who is it? We previously had said the offense must be a first degree felony, an inherently dangerous lesser degree felony, or a lesser degree felony committed under inherently dangerous circumstances. He argues that the murder might be viewed as separate from the theft of the truck, and thus that Villanueva's death was not caused by an attempt to take the truck, but rather, his death precipitated a course of events resulting in a taking.19. Here, the specific language of the pleadings alleged the automobile theft as a lesser, necessarily included offense within the charged robbery because the offenses involved the same victim on the same date. There was no evidence that the object of taking the keys served any purpose other than furthering and completing the goal of stealing the truck. On these facts, we conclude that Mc Gruder's act in taking the keys and in driving away the truck did not constitute unitary conduct within the meaning of our double jeopardy jurisprudence.
When Villanueva and Brazfield returned to her apartment, he told her that during the test drive he had been afraid Mc Gruder was going to take the truck forcibly because Mc Gruder had displayed a gun.4. More recently, we have also said that the felony may not be a lesser included offense of second degree murder and that, in determining what is a lesser included offense for these purposes, a “strict-elements test” is appropriate. In this case, Mc Gruder does not challenge the adequacy of the three felonies on which the State relied as predicates for the charge of felony murder. Rather, he took the keys in order to be able to operate the truck. at 70, 920 P.2d at 1024 (finding unitary conduct in felony murder and attempted armed robbery where there was “no evidence that the object of the shooting served any purpose other than furthering the predicate felony [of attempted robbery] and assisting in its completion”); Contreras, 120 N. at 490, 903 P.2d at 232 (finding unitary conduct in felony murder and armed robbery based on acts of stabbing victim-cabdriver and then taking the cab and its contents).26. Rptr.2d 259, 263 (1996) (affirming multiple convictions for both carjacking, under a specific statute, and robbery, because taking of car and taking of purse were separated in time and place). Because we think the question of whether the conduct was unitary is close, we turn to the second prong, i.e., whether the Legislature intended multiple punishments for the unitary conduct.
Later that same evening, Brazfield heard a knock on the door of her apartment. His argument also does not depend on the evidence of mens rea. That interpretation of the evidence is supported by Mc Gruder's rejection of Villanueva's car keys and firm insistence on locating the truck keys. However, the keys had value to Brazfield, who would have had to replace them, and they were of value to Mc Gruder, who was able to take the truck with less difficulty than he would have had without them. Pamp.1994) (“Robbery consists of the theft of anything of value․”). The Legislature did not expressly provide for multiple punishments in a case such as this one.
Later that afternoon, Mc Gruder and Witt went to the apartment complex parking lot to see if they could locate the truck's owner.
There they met Kathie Brazfield, Jeff Villanueva, and Brazfield's two-year-old daughter.