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19 California opinions name it 3 courts 1969–2018 0 in the last five years
The cases below were cited by California courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.
| Case | Followed | Cited |
|---|---|---|
People v. Ortegagreen2 sentences2007(Ortega, supra, 19 Cal.4th at p. 693 [“The necessarily included offense rule is used to determine whether a defendant improperly has been convicted of both a greater offense and an included offense, or properly has been convicted of separate offenses.” (Italics added.)].) The court’s order dismissing nine counts of the indictment must be reversed. 2004The necessarily included offense rule is used to determine whether a defendant improperly has been convicted of both a greater offense and an included offense, or properly has been convicted of separate offenses.” (People v. Ortega, supra, 19 Cal.4th at p. 693 .) Appellant relies on People v. DeAngelis (1979) 97 Cal.App.3d 837 [159 Cal.Rptr. | 2 | 4 |
People v. Brevermangreen2 sentences2018(See People v. Breverman (1998) 19 Cal.4th 142 , 165, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 [no federal constitutional right to a necessarily included offense instruction in a noncapital case].) F. Harmless Error Finally, if there was any error in not instructing on conspiracy to commit assault with a firearm or conspiracy to shoot at an inhabited dwelling, it was harmless because it was not reasonably probable a more favorable verdict would have occurred but for the error. ( People v. Breverman , supra, 19 Cal.4th at p. 162, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 , citing People v. Watson (1956) 46 2018(See People v. Breverman (1998) 19 Cal.4th 142 , 165, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 [no federal constitutional right to a necessarily included offense instruction in a noncapital case].) F. Harmless Error Finally, if there was any error in not instructing on conspiracy to commit assault with a firearm or conspiracy to shoot at an inhabited dwelling, it was harmless because it was not reasonably probable a more favorable verdict would have occurred but for the error. ( People v. Breverman , supra, 19 Cal.4th at p. 162, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 , citing People v. Watson (1956) 46 | 2 | 2 |
People v. Garciagreen2 sentences2014We have stated, however, that “special circumstances are sui generis—neither a crime, an enhancement, nor a sentencing factor.” (People v. Garcia (1984) 36 Cal.3d 539, 552 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ].) The penalty consequence of a true finding on a special circumstance allegation is that a defendant becomes eligible for the death penalty. 2014We have stated, however, that “special circumstances are sui generis—neither a crime, an enhancement, nor a sentencing factor.” (People v. Garcia (1984) 36 Cal.3d 539, 552 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ].) The penalty consequence of a true finding on a special circumstance allegation is that a defendant becomes eligible for the death penalty. | 1 | 2 |
People v. Brightgreen1 sentence2003The inclusion of this typical enhancement language would have been unnecessary had the Legislature intended to create a new crime . . . , because a crime must be charged in an accusatory pleading and there would have been no need to specify that the punishment for the crime could be imposed only if the charge was admitted or found true by the trier of fact.” (People v. Bright, supra, 12 Cal.4th at p. 669, fn. 12 .) Construing section 422.7 as a substantive crime would also be contrary to the legislative scheme. “ ‘By interpreting the statute as a penalty provision [as opposed to a substantive | 1 | 1 |
Robert L. v. Superior Courtgreen2 sentences2003The inclusion of this typical enhancement language would have been unnecessary had the Legislature intended to create a new crime . . . , because a crime must be charged in an accusatory pleading and there would have been no need to specify that the punishment for the crime could be imposed only if the charge was admitted or found true by the trier of fact.” (People v. Bright, supra, 12 Cal.4th at p. 669, fn. 12 .) Construing section 422.7 as a substantive crime would also be contrary to the legislative scheme. “ ‘By interpreting the statute as a penalty provision [as opposed to a substantive 2003The inclusion of this typical enhancement language would have been unnecessary had the Legislature intended to create a new crime . . . , because a crime must be charged in an accusatory pleading and there would have been no need to specify that the punishment for the crime could be imposed only if the charge was admitted or found true by the trier of fact.” (People v. Bright, supra, 12 Cal.4th at p. 669, fn. 12 .) Construing section 422.7 as a substantive crime would also be contrary to the legislative scheme. “ ‘By interpreting the statute as a penalty provision [as opposed to a substantive | 1 | 1 |
People v. Jeffersongreen2 sentences2003This distinction is of practical import because, as pointed out by the Court of Appeal, "By interpreting the statute as a penalty provision [as opposed to a substantive offense], prosecutors would be free to charge ... section 186.22(d) along with the predicate offense needed to satisfy that section without running afoul of the necessarily included offense rule." By definition, a sentence enhancement is "an additional term of imprisonment added to the base term." (Cal. Rules of Court, rule 4.405(c); People v. Jefferson (1999) 21 Cal.4th 86, 101 , 86 Cal.Rptr.2d 893 , 980 P.2d 441 ( Jefferson ) 2003This distinction is of practical import because, as pointed out by the Court of Appeal, "By interpreting the statute as a penalty provision [as opposed to a substantive offense], prosecutors would be free to charge ... section 186.22(d) along with the predicate offense needed to satisfy that section without running afoul of the necessarily included offense rule." By definition, a sentence enhancement is "an additional term of imprisonment added to the base term." (Cal. Rules of Court, rule 4.405(c); People v. Jefferson (1999) 21 Cal.4th 86, 101 , 86 Cal.Rptr.2d 893 , 980 P.2d 441 ( Jefferson ) | 1 | 1 |
In Re Hayesgreen2 sentences1971The tests used in resolving the problem are summarized in In re Hayes, 70 Cal.2d 604, 607 [ 75 Cal.Rptr. 790 , 451 P.2d 430 ], as: 1) the necessarily included offense test, which we have already shown is not applicable here; 2) the intent and objective test; and 3) the criminal acts test enunciated in Hayes itself (driving knowing license was suspended, and driving while intoxicated). 1971The tests used in resolving the problem are summarized in In re Hayes, 70 Cal.2d 604, 607 [ 75 Cal.Rptr. 790 , 451 P.2d 430 ], as: 1) the necessarily included offense test, which we have already shown is not applicable here; 2) the intent and objective test; and 3) the criminal acts test enunciated in Hayes itself (driving knowing license was suspended, and driving while intoxicated). | 1 | 1 |
| Case | Negative | Cited |
|---|---|---|
| No negative-treatment citations attached to this issue in California. Read the followed side critically anyway. | ||
| Case | Cited | Years |
|---|---|---|
People v. Woods
green
2 sentences2014Therefore, we need not consider whether People v. Woods (1992) 8 Cal.App.4th 1570, 1586-1587 , remains an accurate statement of California law. 2014Therefore, we need not consider whether People v. Woods (1992) 8 Cal.App.4th 1570, 1586-1587 , remains good law. 2. | 3 | 2013–2014 |
People v. Lasko
green
2 sentences2018(See People v. Breverman (1998) 19 Cal.4th 142 , 165, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 [no federal constitutional right to a necessarily included offense instruction in a noncapital case].) F. Harmless Error Finally, if there was any error in not instructing on conspiracy to commit assault with a firearm or conspiracy to shoot at an inhabited dwelling, it was harmless because it was not reasonably probable a more favorable verdict would have occurred but for the error. ( People v. Breverman , supra, 19 Cal.4th at p. 162, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 , citing People v. Watson (1956) 46 2018(See People v. Breverman (1998) 19 Cal.4th 142 , 165, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 [no federal constitutional right to a necessarily included offense instruction in a noncapital case].) F. Harmless Error Finally, if there was any error in not instructing on conspiracy to commit assault with a firearm or conspiracy to shoot at an inhabited dwelling, it was harmless because it was not reasonably probable a more favorable verdict would have occurred but for the error. ( People v. Breverman , supra, 19 Cal.4th at p. 162, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 , citing People v. Watson (1956) 46 | 2 | 2018–2018 |
People v. Watson
green
2 sentences2018(See People v. Breverman (1998) 19 Cal.4th 142 , 165, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 [no federal constitutional right to a necessarily included offense instruction in a noncapital case].) F. Harmless Error Finally, if there was any error in not instructing on conspiracy to commit assault with a firearm or conspiracy to shoot at an inhabited dwelling, it was harmless because it was not reasonably probable a more favorable verdict would have occurred but for the error. ( People v. Breverman , supra, 19 Cal.4th at p. 162, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 , citing People v. Watson (1956) 46 2018(See People v. Breverman (1998) 19 Cal.4th 142 , 165, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 [no federal constitutional right to a necessarily included offense instruction in a noncapital case].) F. Harmless Error Finally, if there was any error in not instructing on conspiracy to commit assault with a firearm or conspiracy to shoot at an inhabited dwelling, it was harmless because it was not reasonably probable a more favorable verdict would have occurred but for the error. ( People v. Breverman , supra, 19 Cal.4th at p. 162, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 , citing People v. Watson (1956) 46 | 2 | 2018–2018 |
People v. Bean
green
2 sentences2014We have addressed similar arguments in the context of multiple felony-murder special circumstances that “might artificially inflate the weight to be given the underlying offenses as aggravating factors if considered more than once for exactly the same purpose . . . .” (People v. Bean (1988) 46 Cal.Sd 919, 955 [ 251 Cal.Rptr. 467 , 760 P.2d 996 ].) We reject defendant’s claim here for the same reason expressed in People v. Bean: “[Njothing in the record suggests that the jury in this case might have been led by the court’s instructions to simply count the special circumstances and weigh them me 2014We have addressed similar arguments in the context of multiple felony-murder special circumstances that “might artificially inflate the weight to be given the underlying offenses as aggravating factors if considered more than once for exactly the same purpose . . . .” (People v. Bean (1988) 46 Cal.Sd 919, 955 [ 251 Cal.Rptr. 467 , 760 P.2d 996 ].) We reject defendant’s claim here for the same reason expressed in People v. Bean: “[Njothing in the record suggests that the jury in this case might have been led by the court’s instructions to simply count the special circumstances and weigh them me | 2 | 2014–2014 |
People v. De Angelis
green
2 sentences2004The necessarily included offense rule is used to determine whether a defendant improperly has been convicted of both a greater offense and an included offense, or properly has been convicted of separate offenses." ( People v. Ortega, supra, 19 Cal.4th at p. 693 , 80 Cal.Rptr.2d 489 , 968 P.2d 48 .) Appellant relies on People v. DeAngelis (1979) 97 Cal.App.3d 837 , 159 Cal.Rptr. 111 as being directly on point. 2004The necessarily included offense rule is used to determine whether a defendant improperly has been convicted of both a greater offense and an included offense, or properly has been convicted of separate offenses.” (People v. Ortega, supra, 19 Cal.4th at p. 693 .) Appellant relies on People v. DeAngelis (1979) 97 Cal.App.3d 837 [159 Cal.Rptr. | 2 | 2004–2004 |
Horwich v. Superior Court
green
2 sentences2001Consistent with our duty to retain the effectiveness of voter initiatives ( Horwich v. Superior Court, supra, 21 Cal.4th at p. 276, 87 Cal.Rptr.2d 222 , 980 P.2d 927 ), we therefore hold that section 186.22(d) constitutes a penalty provision, and not a substantive offense. 2001Consistent with our duty to retain the effectiveness of voter initiatives ( Horwich v. Superior Court, supra, 21 Cal.4th at p. 276, 87 Cal.Rptr.2d 222 , 980 P.2d 927 ), we therefore hold that section 186.22(d) constitutes a penalty provision, and not a substantive offense. | 2 | 2001–2001 |
People v. Wolcott
green
1 sentence2015(People v. Izaguirre (2007) 42 Cal.4th 126, 128 ; People v. Wolcott (1983) 34 Cal.3d 92 , 100- 101.) More fundamentally, our Supreme Court has made it clear that when determining whether multiple convictions for charged offenses is proper, we must consider only the statutory elements of the subject offenses and not the facts alleged in the accusatory pleading. | 1 | 2015–2015 |
People v. Sloan
green
1 sentence2015(See Sloan, supra, 42 Cal.4th at p. 114 .) We also conclude Sphabmixay's arson offense is not a lesser included offense of his murder offenses, and thus the necessarily included offense rule prohibiting a conviction of both a greater offense and a necessarily included lesser offense does not apply. | 1 | 2015–2015 |
People v. Izaguirre
green
1 sentence2015(People v. Izaguirre (2007) 42 Cal.4th 126, 128 ; People v. Wolcott (1983) 34 Cal.3d 92 , 100- 101.) More fundamentally, our Supreme Court has made it clear that when determining whether multiple convictions for charged offenses is proper, we must consider only the statutory elements of the subject offenses and not the facts alleged in the accusatory pleading. | 1 | 2015–2015 |
United States v. Larry Burdette Johnson
green
2 sentences1984Adopting the Whitaker rationale, the Ninth Circuit in United States v. Johnson (9th Cir. 1980) 637 F.2d 1224 , rejected the necessarily included offense rule and concluded that the evidence adduced at trial must be considered in identifying the lesser included offenses on which instructions should be given. 1984Adopting the Whitaker rationale, the Ninth Circuit in United States v. Johnson (9th Cir.1980) 637 F.2d 1224 , rejected the necessarily included offense rule and concluded that the evidence adduced at trial must be considered in identifying the lesser included offenses on which instructions should be given. | 1 | 1984–1984 |
People v. Garcia
green
2 sentences1969Appellant *475 cites People v. Garcia (1967) 250 Cal.App.2d 15 [ 58 Cal.Rptr. 186 ], which holds that failure to instruct on a necessarily included offense is error. 1969Appellant *475 cites People v. Garcia (1967) 250 Cal.App.2d 15 [ 58 Cal.Rptr. 186 ], which holds that failure to instruct on a necessarily included offense is error. | 1 | 1969–1969 |
Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.
Opinions by the citing court's state. A doctrine retained in one state and abandoned in another shows up here as a year span that stalls.