Opinion

People v. Sloan

  • 64 Cal. Rptr. 3d 137
  • 42 Cal. 4th 110
  • 164 P.3d 568
  • 2007 Cal. LEXIS 8704
Court
California Supreme Court
Filed
Aug 16, 2007
Status
Published
Author
Moreno
On the bench
Baxter
Cited by
124 cases
Authority
More cited than 11.3%

The opinion

*124 MORENO, J., Concurring.

The majority in People v. Reed (2006) 38 Cal.4th 1224 [ 45 Cal.Rptr.3d 353 , 137 P.3d 184 ] held that a court never may consider the language of the accusatory pleading in determining whether multiple convictions are proper. The majority concluded that the defendant in that case properly was convicted of being a felon in possession of a firearm, carrying a concealed firearm, and carrying a loaded firearm in public, despite the circumstance that the counts charging him with carrying a concealed weapon and carrying a loaded weapon in public alleged that the defendant was a felon. Applying its broad new rule that the language of the accusatory pleading never may be considered in determining whether multiple convictions are precluded because the offenses are necessarily included within each other, the majority held that multiple convictions were proper in Reed because a person who carries a concealed weapon, or carries a loaded weapon in public, does not necessarily also commit the crime of being a felon in possession of a firearm.

I wrote a concurring and dissenting opinion in Reed that reached the same result as the majority but used different reasoning. I disagreed that the language of the accusatory pleading never should be considered in determining whether a defendant improperly had been convicted of necessarily included offenses. I agreed, however, that the allegations that the defendant in Reed was a felon should not be considered in determining whether multiple convictions were proper because being a felon was not an element of the crimes of carrying a concealed weapon or carrying a loaded weapon in public. (People v. Reed, supra, 38 Cal.4th 1224, 1235 (conc. & dis. opn. of Moreno, J.).) The circumstance that the defendant in Reed was a felon was alleged in the counts charging him with carrying a concealed weapon and carrying a loaded weapon in public in order to permit these crimes to be punished as felonies rather than misdemeanors. (Id. at p. 1234 (conc. & dis. opn. of Moreno, J.).) I thus reached the same result as the majority based in large part upon the rule we announced in People v. Wolcott (1983) 34 Cal.3d 92 [ 192 Cal.Rptr. 748 , 665 P.2d 520 ] “that allegations of sentencing enhancements should not be considered in applying the accusatory pleading test to determine a trial court’s sua sponte duty to instruct the jury regarding lesser included offenses.” (People v. Reed, supra, 38 Cal.4th 1224, 1235 (conc. & dis. opn. of Moreno, J.).)

*125 In the present case, the majority relies upon this court’s decision in People v. Reed, supra, 38 Cal.4th 1224 , as well as our decision in People v. Wolcott, supra, 34 Cal.3d 92 , to hold that enhancement allegations may not be considered for purposes of the rule prohibiting multiple convictions based on necessarily included offenses. In my view, our decision in Wolcott controls here and, for that reason, I reach the same result as does the majority without the need to apply the broad rule created in Reed that the language of the accusatory pleading never may be considered in determining whether multiple convictions are permitted.

Appellant’s petition for a rehearing was denied October 31, 2007.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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