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Name: People v. Murphy
Case #: C046923
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/29/2007

Appellant was properly convicted of both selling cocaine and possessing it for sale. Appellant contended that she was improperly convicted for both selling cocaine rock in count one, and possessing that same rock for sale in count two, a necessarily included offense. The appellate court disagreed, finding that the test of a necessarily included offense was not met here. The current test of a necessarily included offense looks only to statutory elements of charging allegations. Here, neither the statutory elements test nor the charging allegations test was met. A conviction for the greater offense of selling the cocaine does not require as a statutory element the lesser included offense of possessing the cocaine for sale. One can broker a sale of a controlled substance which is in the control of another. Further, the information here simply charged appellant with selling cocaine base and with possessing cocaine base for sale; nothing more was alleged. Therefore appellant was properly convicted of both offenses, and the punishment was properly stayed pursuant to section 654.