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Name: People v. Sosa
Case #: B237628
Court: CA Supreme Court
District 2 DCA
Division: 1
Opinion Date: 10/30/2012

Possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) is not a lesser included offense of possession of a controlled substance while armed (Health & Saf. Code, § 11370.1, subd. (a)). Appellant was convicted by an open plea of section 11350, subdivision (a) and section 11370.1. According to the evidence, when stopped by a sheriff’s deputy, he was found to be in possession of cocaine and a handgun. The court rejected his claim that his conviction for section 11350, subdivision (a) must be vacated because it is a lesser included offense of section 11370.1. Under the statutory elements test, it is possible to violate subdivision (a) of section 11370.1, without violating subdivision (a) of section 11350 because the lists of controlled substances of the two statutes differ. A person can possess methamphetamine while armed with a firearm and violate section 11370.1, subdivision (a), but he does not violate section 11350, subdivision (a) as that statute does not prohibit possession of methamphetamine.