adjudicated elements test in California

2016(People v. Rodriguez (1998) 17 Cal.4th 253, 262 , superseded by statute on other grounds as stated by People v. Luna (2003) 113 Cal.App.4th 395, 397 ; Denard, at p. 1024.) At the time Glover committed the present crime, June 4, 2013, California's rape statute did not punish sexual penetration committed by fraud, other than by a person pretending to be the victim's spouse or pretending that the sexual penetration served a professional purpose. (§ 261, subd. (a)(4)(D), (5).) Pursuant to the least adjudicated elements test, Glover's Tennessee rape conviction does not qualify as a 7 serious felony

2008The minor argues that "under the least adjudicated elements test set forth in People v. Rodriguez (1988) 17 Cal.4th 253, 261 [ 70 Cal.Rptr.2d 334 , 949 P.2d 31 ], [the offense] could have been committed by using an inherently dangerous weapon." He maintains that "`assault with a deadly weapon other than a firearm is not an offense enumerated in section 707(b)'"; "the finding that he committed an assault with a deadly weapon does not automatically mean that he used force likely to produce great bodily injury," which is a section 707, subdivision (b), offense; the court may not look "beyond the

1996If that is what is required by the least adjudicated elements test, no crime would ever involve moral turpitude.” (People v. Thomas (1988) 206 Cal.App.3d 689, 698 [ 254 Cal.Rptr. 15 ].) In rejecting defendant’s argument in the context of whether section 2800.2 constitutes an inherently dangerous felony, the court in Johnson held that “giving the statutory language involving ‘wanton disregard’ for the safety of ‘persons or property’ a commonsense construction, it appears [that] the ‘wanton disregard’ in question is total, rather than selective.

1996If that is what is required by the least adjudicated elements test, no crime would ever involve moral turpitude.” (People v. Thomas (1988) 206 Cal.App.3d 689, 698 [ 254 Cal.Rptr. 15 ].) In rejecting defendant’s argument in the context of whether section 2800.2 constitutes an inherently dangerous felony, the court in Johnson held that “giving the statutory language involving ‘wanton disregard’ for the safety of ‘persons or property’ a commonsense construction, it appears [that] the ‘wanton disregard’ in question is total, rather than selective.

1988The least adjudicated elements standard was explicitly adopted in Castro from “the Finley-Crowson line of cases.” (People v. Castro, supra, 38 Cal.3d 301, 316-317 ; People v. Crowson (1983) 33 Cal.3d 623, 633-635 [ 190 Cal.Rptr. 165 , 660 P.2d 389 ]; In re Finley (1968) 68 Cal.2d 389, 392-393 [ 66 Cal.Rptr. 733 , 438 P.2d 381 ].) In those cases the Supreme Court was addressing itself to the manner in which to evaluate convictions in foreign jurisdictions for the purpose of applying California’s former habitual offender statute (in Finley), and California’s sentence-enhancing Penal Code section

1988The least adjudicated elements standard was explicitly adopted in Castro from “the Finley-Crowson line of cases.” (People v. Castro, supra, 38 Cal.3d 301, 316-317 ; People v. Crowson (1983) 33 Cal.3d 623, 633-635 [ 190 Cal.Rptr. 165 , 660 P.2d 389 ]; In re Finley (1968) 68 Cal.2d 389, 392-393 [ 66 Cal.Rptr. 733 , 438 P.2d 381 ].) In those cases the Supreme Court was addressing itself to the manner in which to evaluate convictions in foreign jurisdictions for the purpose of applying California’s former habitual offender statute (in Finley), and California’s sentence-enhancing Penal Code section

2016(See State v. McNallie (1993) 120 Wn.2d 925, 933 [ 846 P.2d 1358 ] [RCW 9.68A.090 “prohibits communication with children for the predatory purpose of promoting their exposure to and involvement in sexual misconduct”]; State v. Jackman (2006) 156 Wn.2d 736, 748 [ 132 P.3d 136 ] [RCW 9.68A.090 “incorporates within its scope a relatively broad range of sexual conduct involving a minor”].) 3 *47 San Nicolas further contends the least adjudicated elements test is not met as to section 288.3(a) because section 288.3(a) requires the defendant to have actual or constructive knowledge the victim was un

2016(See State v. McNallie (1993) 120 Wn.2d 925, 933 [ 846 P.2d 1358 ] [RCW 9.68A.090 “prohibits communication with children for the predatory purpose of promoting their exposure to and involvement in sexual misconduct”]; State v. Jackman (2006) 156 Wn.2d 736, 748 [ 132 P.3d 136 ] [RCW 9.68A.090 “incorporates within its scope a relatively broad range of sexual conduct involving a minor”].) 3 *47 San Nicolas further contends the least adjudicated elements test is not met as to section 288.3(a) because section 288.3(a) requires the defendant to have actual or constructive knowledge the victim was un

2016(People v. Valenti (2016) 243 Cal.App.4th 1140, 1158 [ 197 Cal.Rptr.3d 317 ]; People v. Phillips (2010) 188 Cal.App.4th 1383, 1396 [ 116 Cal.Rptr.3d 401 ]; CALCRIM No. 1122.) San Nicolas contends the least adjudicated elements test is not met as to this offense because section 647.6(a)(1) requires the offending conduct to *48 be motivated by an unnatural or abnormal sexual interest in the child and RCW 9.68A.090 requires no such motivation.

2016(People v. Valenti (2016) 243 Cal.App.4th 1140, 1158 [ 197 Cal.Rptr.3d 317 ]; People v. Phillips (2010) 188 Cal.App.4th 1383, 1396 [ 116 Cal.Rptr.3d 401 ]; CALCRIM No. 1122.) San Nicolas contends the least adjudicated elements test is not met as to this offense because section 647.6(a)(1) requires the offending conduct to *48 be motivated by an unnatural or abnormal sexual interest in the child and RCW 9.68A.090 requires no such motivation.

2016(See State v. McNallie (1993) 120 Wn.2d 925, 933 [ 846 P.2d 1358 ] [RCW 9.68A.090 “prohibits communication with children for the predatory purpose of promoting their exposure to and involvement in sexual misconduct”]; State v. Jackman (2006) 156 Wn.2d 736, 748 [ 132 P.3d 136 ] [RCW 9.68A.090 “incorporates within its scope a relatively broad range of sexual conduct involving a minor”].) 3 *47 San Nicolas further contends the least adjudicated elements test is not met as to section 288.3(a) because section 288.3(a) requires the defendant to have actual or constructive knowledge the victim was un

2016(People v. Valenti (2016) 243 Cal.App.4th 1140, 1158 [ 197 Cal.Rptr.3d 317 ]; People v. Phillips (2010) 188 Cal.App.4th 1383, 1396 [ 116 Cal.Rptr.3d 401 ]; CALCRIM No. 1122.) San Nicolas contends the least adjudicated elements test is not met as to this offense because section 647.6(a)(1) requires the offending conduct to *48 be motivated by an unnatural or abnormal sexual interest in the child and RCW 9.68A.090 requires no such motivation.

2016(People v. Valenti (2016) 243 Cal.App.4th 1140, 1158 [ 197 Cal.Rptr.3d 317 ]; People v. Phillips (2010) 188 Cal.App.4th 1383, 1396 [ 116 Cal.Rptr.3d 401 ]; CALCRIM No. 1122.) San Nicolas contends the least adjudicated elements test is not met as to this offense because section 647.6(a)(1) requires the offending conduct to *48 be motivated by an unnatural or abnormal sexual interest in the child and RCW 9.68A.090 requires no such motivation.

2016(See In re Rodden (2010) 186 Cal.App.4th 24, 39 [ 111 Cal.Rptr.3d 517 ], superseded on another point in Stats. 2011, ch. 362, §§ 1-2.) Under this test, the Washington conviction is registrable if the underlying offense meets all of the statutory elements of a registrable California offense.

2016(See In re Rodden (2010) 186 Cal.App.4th 24, 39 [ 111 Cal.Rptr.3d 517 ], superseded on another point in Stats. 2011, ch. 362, §§ 1-2.) Under this test, the Washington conviction is registrable if the underlying offense meets all of the statutory elements of a registrable California offense.

2015Further, a burglary can be committed under Florida law by entering or remaining in “a dwelling, a structure, or a conveyance” regardless of occupancy, whereas in California first degree burglary can be committed only if the property is inhabited. (§ 460.) “As used in section 460, ‘ “inhabited” means currently being used for dwelling purposes, whether occupied or not.’” (People v. Tessman (2014) 223 Cal.App.4th 1293, 1297 [ 168 Cal.Rptr.3d 29 ].) By contrast, under Florida law “a structure’s design or suitability for habitation, rather than actual occupancy or intent to occupy, controls in dete

2015Further, a burglary can be committed under Florida law by entering or remaining in “a dwelling, a structure, or a conveyance” regardless of occupancy, whereas in California first degree burglary can be committed only if the property is inhabited. (§ 460.) “As used in section 460, ‘ “inhabited” means currently being used for dwelling purposes, whether occupied or not.’” (People v. Tessman (2014) 223 Cal.App.4th 1293, 1297 [ 168 Cal.Rptr.3d 29 ].) By contrast, under Florida law “a structure’s design or suitability for habitation, rather than actual occupancy or intent to occupy, controls in dete

2015Further, a burglary can be committed under Florida law by entering or remaining in “a dwelling, a structure, or a conveyance” regardless of occupancy, whereas in California first degree burglary can be committed only if the property is inhabited. (§ 460.) “As used in section 460, ‘ “inhabited” means currently being used for dwelling purposes, whether occupied or not.’” (People v. Tessman (2014) 223 Cal.App.4th 1293, 1297 [ 168 Cal.Rptr.3d 29 ].) By contrast, under Florida law “a structure’s design or suitability for habitation, rather than actual occupancy or intent to occupy, controls in dete

2014Defendant quotes People v. Watts (2005) 131 Cal.App.4th 589, 596 [ 32 Cal.Rptr.3d 260 ], which stated: “On an appellate challenge to a finding that a prior conviction was a strike, where the prior conviction is for an offense that can be committed in multiple ways, one or more of which would not qualify it as a strike, and if it cannot be determined from the record that the offense was committed in a way that would make it a strike, a reviewing court must presume the offense was not a strike.” Defendant then argues that “there are several ways that an individual can violate [Penal Code section

2014Defendant quotes People v. Watts (2005) 131 Cal.App.4th 589, 596 [ 32 Cal.Rptr.3d 260 ], which stated: “On an appellate challenge to a finding that a prior conviction was a strike, where the prior conviction is for an offense that can be committed in multiple ways, one or more of which would not qualify it as a strike, and if it cannot be determined from the record that the offense was committed in a way that would make it a strike, a reviewing court must presume the offense was not a strike.” Defendant then argues that “there are several ways that an individual can violate [Penal Code section

2014In the words of Justice Rubin, “This argument mixes apples and giraffes.” (California Retail Portfolio Fund GMBH & Co. KG v. Hopkins Real Estate Group (2011) 193 Cal.App.4th 849, 859 [ 122 Cal.Rptr.3d 614 ].) The least adjudicated elements test does not apply because being a felony or a misdemeanor is not an element of active gang participation under Penal Code section 186.22, subdivision (a).

2014In the words of Justice Rubin, “This argument mixes apples and giraffes.” (California Retail Portfolio Fund GMBH & Co. KG v. Hopkins Real Estate Group (2011) 193 Cal.App.4th 849, 859 [ 122 Cal.Rptr.3d 614 ].) The least adjudicated elements test does not apply because being a felony or a misdemeanor is not an element of active gang participation under Penal Code section 186.22, subdivision (a).

2010As the Supreme Court declared, “Certainly the prosecution [is] entitled to go beyond the least adjudicated elements of the . . . conviction and use the entire record to prove that defendant had in fact personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)) or personally used a dangerous or deadly weapon (§ 1192.7, subd. (c)(23)).” (People v. Rodriguez (1998) 17 Cal.4th 253, 261-262 [70 *38 Cal.Rptr.2d 334, 949 P.2d 31 ].) Thus, “the trier of fact must be permitted to go beyond the least adjudicated elements of the offense, to implement the purpose of the electorate in incorporating

2010As the Supreme Court declared, “Certainly the prosecution [is] entitled to go beyond the least adjudicated elements of the . . . conviction and use the entire record to prove that defendant had in fact personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)) or personally used a dangerous or deadly weapon (§ 1192.7, subd. (c)(23)).” (People v. Rodriguez (1998) 17 Cal.4th 253, 261-262 [70 *38 Cal.Rptr.2d 334, 949 P.2d 31 ].) Thus, “the trier of fact must be permitted to go beyond the least adjudicated elements of the offense, to implement the purpose of the electorate in incorporating

2010Instead, the court must look to the statutory definition of the particular crime and only if the least adjudicated elements of the crime necessarily involve moral turpitude is the prior conviction admissible for impeachment purposes. [Citation.]’ (People v. Mansfield (1988) 200 Cal.App.3d 82, 87 [ 245 Cal.Rptr. 800 ].)” (People v. Rivera, supra, 107 Cal.App.4th at pp. 1379-1380.) Here, as in Castro , the least adjudicated elements test applies because the pertinent legislation refers to felony convictions rather than conduct underlying those felonies.

2010As the Supreme Court declared, “Certainly the prosecution [is] entitled to go beyond the least adjudicated elements of the . . . conviction and use the entire record to prove that defendant had in fact personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)) or personally used a dangerous or deadly weapon (§ 1192.7, subd. (c)(23)).” (People v. Rodriguez (1998) 17 Cal.4th 253, 261-262 [70 *38 Cal.Rptr.2d 334, 949 P.2d 31 ].) Thus, “the trier of fact must be permitted to go beyond the least adjudicated elements of the offense, to implement the purpose of the electorate in incorporating

2010As the Supreme Court declared, “Certainly the prosecution [is] entitled to go beyond the least adjudicated elements of the . . . conviction and use the entire record to prove that defendant had in fact personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)) or personally used a dangerous or deadly weapon (§ 1192.7, subd. (c)(23)).” (People v. Rodriguez (1998) 17 Cal.4th 253, 261-262 [70 *38 Cal.Rptr.2d 334, 949 P.2d 31 ].) Thus, “the trier of fact must be permitted to go beyond the least adjudicated elements of the offense, to implement the purpose of the electorate in incorporating

2010As the Supreme Court declared, “Certainly the prosecution [is] entitled to go beyond the least adjudicated elements of the . . . conviction and use the entire record to prove that defendant had in fact personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)) or personally used a dangerous or deadly weapon (§ 1192.7, subd. (c)(23)).” (People v. Rodriguez (1998) 17 Cal.4th 253, 261-262 [70 *38 Cal.Rptr.2d 334, 949 P.2d 31 ].) Thus, “the trier of fact must be permitted to go beyond the least adjudicated elements of the offense, to implement the purpose of the electorate in incorporating

2010As the Supreme Court declared, “Certainly the prosecution [is] entitled to go beyond the least adjudicated elements of the . . . conviction and use the entire record to prove that defendant had in fact personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)) or personally used a dangerous or deadly weapon (§ 1192.7, subd. (c)(23)).” (People v. Rodriguez (1998) 17 Cal.4th 253, 261-262 [70 *38 Cal.Rptr.2d 334, 949 P.2d 31 ].) Thus, “the trier of fact must be permitted to go beyond the least adjudicated elements of the offense, to implement the purpose of the electorate in incorporating

1990If that is what is required by the least adjudicated elements test, no crime would ever involve moral turpitude.” We concluded that “All that Castro should be taken to require is that from the elements of the offense alone—without regard to the facts of the particular violation—one can reasonably infer the presence of moral turpitude.” (People v. Thomas (1988) 206 Cal.App.3d 689, 698 [ 254 Cal.Rptr. 15 ].) In Castro , Justice Kaus suggested we ask the question, “ ‘Can it be said with substantial assurance that the credibility of a witness is adversely affected by his having suffered this convi

1990If that is what is required by the least adjudicated elements test, no crime would ever involve moral turpitude.” We concluded that “All that Castro should be taken to require is that from the elements of the offense alone—without regard to the facts of the particular violation—one can reasonably infer the presence of moral turpitude.” (People v. Thomas (1988) 206 Cal.App.3d 689, 698 [ 254 Cal.Rptr. 15 ].) In Castro , Justice Kaus suggested we ask the question, “ ‘Can it be said with substantial assurance that the credibility of a witness is adversely affected by his having suffered this convi

1990“One of the duties that accompanies the right and privilege of driving a vehicle upon a public thoroughfare is to give such information.” (Ibid.) Appellant relies on language from People v. Rocovich (1969) 269 Cal.App.2d 489, 494 [ 74 Cal.Rptr. 755 ], to argue that “specific intent was not a necessary element of [section 20001]” and, therefore, violation of this section does not give rise to an inference of moral turpitude.

1990“One of the duties that accompanies the right and privilege of driving a vehicle upon a public thoroughfare is to give such information.” (Ibid.) Appellant relies on language from People v. Rocovich (1969) 269 Cal.App.2d 489, 494 [ 74 Cal.Rptr. 755 ], to argue that “specific intent was not a necessary element of [section 20001]” and, therefore, violation of this section does not give rise to an inference of moral turpitude.

1988The least adjudicated elements standard was explicitly adopted in Castro from “the Finley-Crowson line of cases.” (People v. Castro, supra, 38 Cal.3d 301, 316-317 ; People v. Crowson (1983) 33 Cal.3d 623, 633-635 [ 190 Cal.Rptr. 165 , 660 P.2d 389 ]; In re Finley (1968) 68 Cal.2d 389, 392-393 [ 66 Cal.Rptr. 733 , 438 P.2d 381 ].) In those cases the Supreme Court was addressing itself to the manner in which to evaluate convictions in foreign jurisdictions for the purpose of applying California’s former habitual offender statute (in Finley), and California’s sentence-enhancing Penal Code section

1988The least adjudicated elements standard was explicitly adopted in Castro from “the Finley-Crowson line of cases.” (People v. Castro, supra, 38 Cal.3d 301, 316-317 ; People v. Crowson (1983) 33 Cal.3d 623, 633-635 [ 190 Cal.Rptr. 165 , 660 P.2d 389 ]; In re Finley (1968) 68 Cal.2d 389, 392-393 [ 66 Cal.Rptr. 733 , 438 P.2d 381 ].) In those cases the Supreme Court was addressing itself to the manner in which to evaluate convictions in foreign jurisdictions for the purpose of applying California’s former habitual offender statute (in Finley), and California’s sentence-enhancing Penal Code section