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Name: People v. Burnell
Case #: G032634
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 08/19/2005

Appellant was convicted of multiple offenses including attempted murder, robbery, vehicle theft, receiving stolen property, mayhem, and street terrorism. On appeal, he argued that the attempted murder, robbery, vehicle theft, and mayhem convictions had to be stricken because they are necessarily included offenses of street terrorism. The appellate court rejected his argument, finding that the statutory elements of street terrorism do not include all the elements of the five other offenses. The fact that the court’s instructions and the prosecutor’s argument stated that the five offenses satisfied the felonious conduct under the street terrorism charge was irrelevant to whether they were necessarily included in the charge. When determining whether one offense is included in another, consideration must be limited to the elements of the offense and the accusatory pleading, not the evidence. Further, counsel’s failure to request bifurcation of the street terrorism count and the gang enhancements caused no prejudice to appellant.