Does the addition of a specific intent to sell as an element of transportation under section 11379 render possession for sale a lesser included offence?

California, United States of America


The following excerpt is from People v. Applegate, C071070 (Cal. App. 2017):

Defendant also contends that the addition of a specific intent to sell as an element of transportation under section 11379 renders possession for sale under section 11378 a lesser included offense. He urges us to reverse the section 11378 conviction because a person cannot be convicted of both a greater and lesser offense based on the same evidence. (People v. Sanders (2012) 55 Cal.4th 731, 736.) Defendant argues he could not transport the methamphetamine with the specific intent to sell it without also possessing it with the specific intent to sell. His argument has a logical, commonsense appeal, but it is based on an outmoded analysis of what constitutes a lesser included offense. The proper analysis required by more recent authority is based on the statutory elements of the offense and not the facts established by the evidence at trial.

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