Home -> Law Blog Directory -> Criminal Law Blogs -> Criminal Appeal

Criminal Law

: Criminal Appeal

Possession Of Cocaine Base For Sale Not Necessarily Lesser Included Offense Of Selling Cocaine Base

By Jeremy Price

The defendant in this case was convicted for both selling cocaine base in one count and possessing that same rock for sale in a second count. A panel of the Third District Court of Appeal held that the possession for sale count was not a lesser included offense of the selling count and therefore concluded that the defendant could be convicted of both offenses. (The sentence on the possession for sale count, though, was properly stayed under Penal Code section 654 ,which bars multiple punishment for one indivisible course of conduct.) As a threshold matter, the Court of Appeal stated that courts should not consider the evidence actually adduced at trial in determining whether one offense is necessarily included within another. According to the Court of Appeal, neither the statutory elements test nor the accusatory pleading test aided the defendant's claim that the possession for sale count was necessarily included in the selling count...continue to full post

Full post as published by Criminal Appeal on December 18, 2007 (boomark / email).