Boswell

DISCUSSION

I. Lesser Included Offense

A. Additional Background

Count 1 charged Boswell with murdering Griffin and alleged two special

circumstances, including a special circumstance that Boswell committed the murder

while engaged in the commission or attempted commission of the crime of burglary in

the first or second degree. Count 2 alleged that Boswell committed burglary of the first

degree by unlawfully entering a building occupied by Griffin with the intent to commit

theft.

The jury convicted Boswell of first degree murder and found true the burglary and

robbery special circumstance allegations. The jury also convicted Boswell of the

burglary count. The trial court sentenced Boswell to a term of 25-years to life for the

burglary, but stayed the sentence under Penal Code1 section 654.

B. Analysis

Boswell contends that, under the elements test, burglary is a lesser included

offense of murder committed during a burglary because the offense of murder with a

burglary special circumstance cannot be committed without also committing the crime of

burglary. Thus, he asserts that his burglary conviction must be reversed. The People

Undesignated statutory…