Defendant was properly convicted of both felony murder and attempted carjacking because carjacking is not a lesser included offense of felony murder. Diaz was convicted of murder committed during an attempted carjacking (thus first degree murder) (Pen. Code, § 187, subd. (a)) and attempted carjacking (Pen. Code, §§ 215, subd.(a), 664). One issue on appeal was whether the attempted carjacking conviction should be reversed because it is necessarily included in the felony murder count. Held: Both convictions affirmed. Penal Code section 954 permits multiple convictions, but section 654 prohibits multiple punishment where the offenses were committed with the same intent and objective. Multiple convictions are prohibited where one offense is necessarily included in the other. The two tests for determining whether an offense is lesser included are the “elements” test and the “accusatory pleading” test. Here, the elements test applies because both offenses were charged. This test looks solely to the statutory elements, not the specific facts of the case, i.e. whether the greater crime cannot be committed without also committing the lesser offense. Felony murder can be accomplished without the commission of an attempted carjacking. Thus, attempted carjacking is not a lesser offense of the murder, even though the murder was first degree based on its commission during the perpetration of an attempted carjacking. The elements test need not be applied to the offense of which the defendant was actually convicted, but may be applied to alternative theories of liability that were not presented to or found by the jury.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F071348.PDF