People v. Duenas CA3

DISCUSSION

Defendant contends his conviction on count 4, the uncharged offense of possessing more than 28.5 grams of cannabis, was in error. In response, the People argue defendant implicitly agreed to amend the information to add the uncharged offense when he failed to object to the proposed jury instruction of possessing more than 28.5 grams of cannabis on the ground that the offense was not charged in the information. The People are mistaken. Lesser Included Offenses “Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117.) To ascertain whether one crime is necessarily included in another, courts may look either to the accusatory pleading or the statutory elements of the crimes. (People v. Robinson (2016) 63 Cal.4th 200, 207.) Here, the information charged defendant in count 4 by merely incorporating the statutory definition of Health & Safety Code section 11359,…