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Name: People v. Alarcon
Case #: B233444
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 10/23/2012
Summary

Where defendant was charged with attempted murder and a gun use enhancement, the trial court did not err by failing to instruct on assault with a deadly weapon as a lesser included offense. Following his conviction for attempted murder, appellant contended on appeal that the trial court erred in declining to instruct the jury regarding assault with a deadly weapon as a lesser included offense of attempted murder. He argued that given the gun use enhancements charged, assault with a deadly weapon must be regarded as included within the charged murder. The appellate court rejected the argument and affirmed. People v. Wolcott (1983) 34 Cal.3d 92, held that under the accusatory pleading test, gun use and GBI enhancement allegations accompanying an attempted murder charge do not render assault with a deadly weapon a lesser included offense of attempted murder. Appellant maintained that Wolcott was overruled sub rosa by Apprendi and People v. Seel (2004) 34 Cal.4th 535. The appellate court found that contention mistaken, finding that Wolcott controls the application of the instructional rule.