Myers

In this case we hold that a trial court may consider enhancement allegations in determining whether the accusatory pleading alleges an included offense. More importantly, we request that the Supreme Court grant a hearing in this case in order to resolve a troublesome conflict on this issue which has arisen between divisions of the Courts of Appeal.

Charged with attempted murder, the defendants were found guilty by a jury of assault with a deadly weapon. Use and great bodily injury allegations were found to be true.

Sherry Lowe, a white woman, and Ronald Kelley, a black man, went to a party. As they left the party, they were confronted by a group of white men wearing T-shirts which carried the emblem SWP, an acronym for “Supreme White Pride.” One of these individuals, Glen Filkins, called Kelley a “nigger” and berated him for being with a white woman. Lowe went back to the party for help. Filkins and the others then beat Kelley into unconsciousness. Lowe returned with Ken Davis, Kay Law, Lynette Wilson and eventually Dwight Scruggs, the victim. The defendants, Gooch and Myers, were part of the Supreme White Pride group which had accosted Kelley. When the others from the…