Burglary is not a lesser included offense of murder with a burglary special circumstance attached to it. Boswell murdered an elderly woman while in the process of burglarizing her home. The jury convicted him of first degree murder and found robbery and burglary special circumstances true. He was sentenced to LWOP. On appeal, he claimed his burglary conviction should be reversed because it is a lesser-included offense of the murder with the burglary special circumstance. Held: Affirmed. Generally, a defendant may be convicted of multiple crimes arising out of the same act, but may not be convicted of both the greater offense and a lesser included offense. Whether an offense is lesser included within another is determined by the elements test; i.e., whether the statutory elements of the lesser offense are necessarily included in the greater offense. “Sentencing enhancements are not elements of the offense and cannot be considered in determining whether an offense is a lesser included offense” of another because they merely provide an added penalty to be imposed when the substantive crime is committed under certain circumstances. A penalty allegation is separate from the underlying offense to which it attaches and does not set forth elements of the offense or create a greater degree of the offense. Murder and burglary are two different crimes with different elements. The burglary special circumstance is not an element of the murder charge. Like a sentencing enhancement, it functions to increase the penalty when a murder occurs under certain circumstances. Therefore, it is irrelevant to the determination under the statutory elements test of whether burglary is a lesser offense of the murder charge.

The full opinion is on the court’s website here: http://www.courts.ca.gov/opinions/documents/D067946.PDF