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Name: People v. McDavid (2024) 15 Cal.5th 1015
Case #: S275940
Court: CA Supreme Court
District CalSup
Opinion Date: 04/29/2024

After striking a PC 12022.53 enhancement in the interest of justice, a trial court has discretion to impose an uncharged, lesser included enhancement located elsewhere in the Penal Code. While PC 12022.53 applies to specified felonies involving the use of firearms, PC 12022 applies more broadly to personal use of a firearm during any felony, and PC 12022 casts an even wider net. In People v. Tirado (2022) 12 Cal.5th 688, the court held that PC 12022.53(h) gives the trial court discretion to, after striking a PC 12022.53 enhancement under PC 1385, impose a lesser included, uncharged PC 12022.53 enhancement when…

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Name: People v. Morrison
Case #: A154092
District 1 DCA
Division: 5
Opinion Date: 04/11/2019

Under Penal Code section 1385, trial court had discretion to impose a lesser included firearm enhancement instead of the greater enhancement (Pen. Code, § 12022.53, subd. (d)), even though the lesser enhancement was not alleged. Morrison was convicted of first degree murder, and a firearm enhancement (Pen. Code, § 12022.53, subd. (d)) was found true. The jury was not instructed on lesser included firearm enhancements (Pen. Code, § 12022.53, subds. (b), (c)). Morrison's sentence included 25 years to life for the firearm enhancement. After Senate Bill No. 620 went into effect, the trial court denied a request to strike the…

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Name: In re Jonathan R.
Case #: A145238
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 09/30/2016

Minor could not be convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) for the same act. Jonathan R. stabbed a young man during a brawl. A juvenile delinquency petition was filed alleging violations of both Penal Code section 245, subdivision (a)(1) (assault with a deadly weapon) and section 245, subdivision (a)(4) (assault with force likely to produce great bodily injury). The juvenile court found the allegations true. He appealed on a number of grounds, including that he could not…

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Name: People v. Hall
Case #: C060359
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/30/2010

There is no bar to conviction for both carrying a concealed firearm in violation of Penal Code section 12025, subdivision (b)(6) and carrying a loaded firearm in a public place in violation of Penal Code section 12031, subdivision (a)(2)(F). The same act can lead to both convictions because there is no "lesser offense." The offense of carrying in a firearm in a public place includes a definition of a public place. An offense of carrying a concealed, loaded firearm that is not registered to the defendant may be violated in a private…

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Name: People v. Babaali
Case #: B206165
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 03/03/2009

Sexual battery is not a lesser included offense of sexual battery by fraudulent representation. A jury convicted appellant of sexual battery by fraudulent representation (Pen. Code, sec. 243.4, subd. (c)) and attempted sexual battery by fraudulent representation, both of the same victim. The trial court concluded that the verdicts were contrary to law, and found appellant not guilty of the two offenses, but, over defense objection, guilty of what it believed to be the lesser included offense of sexual battery and attempted sexual battery. The appellate court reversed the convictions, finding that the trial court lacked jurisdiction…

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Name: People v. Ramirez
Case #: S156775
Court: CA Supreme Court
District CalSup
Opinion Date: 02/26/2009

Gross negligent discharge of a firearm is a lesser included offense of willful discharge of a firearm at a building or vehicle. Resolving a split among Courts of Appeal, the Supreme Court held that a violation of Penal Code section 246.3, subdivision (a) (willful discharge of a firearm in a grossly negligent manner which could result in injury or death) is a lesser-included offense of Penal Code section 246 (maliciously and willfully discharging a firearm at an occupied building or vehicle). The only difference between the two is that section 246 proscribes discharging a firearm at specific targets that…

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Name: People v. Murray
Case #: C054891
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/24/2008

Aggravated assault is not a lesser included offense of involuntary manslaughter. Appellant contended he could not be convicted of both involuntary manslaughter and aggravated assault because the latter is a lesser included offense in the former. Citing People v. Reed (2006) 38 Cal.4th 1224, the Court of Appeal noted that now only the elements test applies in determining included offenses. Comparing the elements of both offenses, it is obvious that the elements of involuntary manslaughter does not include all of the elements of aggravated assault. Aggravated assault requires an act which by its nature will directly…

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Name: People v. Ybarra et al.
Case #: F047855
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 09/12/2008

Penal Code section 868.5, entitling a prosecution witness to a support person during his or her testimony at trial, does not violate due process. In this murder and attempted murder case, the victims of the attempted murder charges, and the spouse of the murder victim, each had a support person close by and within the jury's sight during their testimony. Appellants argued this was a violation of due process. They likened the support person’s role to allowing spectators to wear buttons of victim, shackling a defendant, or making him wear prison garbs. The court found the analogy to these practices unpersuasive. Nothing about a support…

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Name: People v.Villa
Case #: B195363
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 12/17/2007

Because multiple convictions may not be based on necessarily included offenses, a defendant cannot be convicted of both robbery and petty theft with a prior conviction when the crimes arose from the same incident. Appellant took a car navigation system from a store display and left the store without paying for it. When followed by a store employee, appellant turned and pointed a silver object at the employee. Thinking that the object was a gun, the employee gave up the chase. Appellant was convicted of robbery and petty theft with a prior conviction (Pen. Code, sec.…

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Name: People v. Navarro
Case #: S132666
Court: CA Supreme Court
District CalSup
Opinion Date: 02/26/2007

Penal Code secs 1181, subdivision 6, and 1260, do not authorize an appellate court to modify a judgment to reflect convictions for two lesser included offenses upon finding insufficient evidence of a single greater offense. While fleeing from police, appellant got into the passenger seat of a man's car and told him, "drive or I'll kill you." Instead of driving, the man removed the keys from the ignition and exited the car. Appellant then moved over to the driver seat and tried to get the car going, but he was apprehended before the car ever moved. …

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