When will a court order a reduction in the sentence of an appellant convicted of attempted robbery?

Though in instructing a jury a court is not limited by the strategy of the parties, nevertheless it must consider what evidence has been adduced that might support a finding of guilt on a lesser offense, and it should not prejudice the defendant by giving sua sponte instructions inconsistent with his theory of the case. (See People v. Wickersham (1982) 32 Cal.3d 307, 323-326, 185 Cal.Rptr. 436, 650 P.2d 311; People v. Callan (1985) 174 Cal.App.3d 1101, 1112-1113, 220 Cal.Rptr. 339; People v. Gordon (1985) 165 Cal.App.3d 839, 864, 212 Cal.Rptr. 174.)

Here, appellant unequivocally denied taking part in the robbery. If his story was believed, he was not guilty of any offense. Appellant's defense was solely the prosecution's failure to meet its burden of proof, and he adduced no evidence, either in his own case or on cross-examination of the prosecution witnesses, that what was planned or attempted was a simple theft. (See People v. Leach (1985) 41 Cal.3d 92, 106, 221 Cal.Rptr. 826, 710 P.2d 893.)

Finally, appellant contends, and the Attorney General concedes, that Penal Code section 654 required the trial court to stay execution of the sentence on the attempted robbery count, rather than merely ordering that sentence served concurrently. (See People v. Mulqueen (1970) 9 Cal.App.3d 532, 547, 88 Cal.Rptr. 235.) We will modify the judgment accordingly.