What Makes a Necessarily Included Offense?

In People v. Murphy, case no. C046923 (3d Dist. August 29, 2007, modified Sept. 25, 2007), the defendant contended that she was “improperly convicted for both selling the cocaine rock in count one and possessing that same rock for sale in count two, a necessarily included offense.” The record showed that the defendant was actually accused of possessing two cocaine rocks and did not show upon which rock the jury founded the conviction on the count for possession for sale.

The court concludes the conviction on multiple counts was proper because the applicable test — whether the statutory elements of the greater offense include all of the statutory elements of the lesser offense — looks only to the statutory elements of the offenses and not to the facts of the particular case:

[T]he applicable test here of a necessarily included offense, the statutory elements test–a much narrower test than the outdated test set forth in cases upon which defendant relies–was not met, and defendant’s convictions for selling and possessing for sale are proper. [Citation.]

The outdated test of a necessarily included offense upon which defendant relies encompasses an offense in which the facts established by the evidence at trial make it impossible to commit one offense without also committing another. [Citation.]

Looking solely to the statutory elements, the court concludes that the element of possession in count two (possession for sale) is not necessary for a conviction on count one (sale) since a defendant is guilty of sale even for brokering the sale of cocaine in the possession of someone else. It doesn’t matter that in this case, the defendant was indeed in possession.