In a sexual assault case, what is the test for admitting to count 3 of the sexual assault charge?

California, United States of America


The following excerpt is from The People v. Giovani, 81 Cal.App.4th 1061, 97 Cal.Rptr.2d 319 (Cal. App. 2000):

Additionally, we reject the contention that the admission to count 3 was improper because count 3 was a necessarily included offense of count 2. In People v. Ortega (1998) 19 Cal.4th 686, 692, the court noted an offense is necessarily included within a charged offense if under the statutory definition of the charged offense it cannot be committed without committing the lesser offense, or if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed. We find that count 3 is not a necessarily included offense of count 2 because it is possible to commit count 2 without committing count 3, and because count 2 is alleged in the language of the statute and does not specify that a violation of count 2 would constitute the commission of count 3.

Other Questions


For the purposes of section 1108.2(1) of the California Criminal Code, is there any constitutional error in a trial court's decision to instruct the jury in a sexual assault case to consider the use of sexual assault evidence admitted under Section 1108? (California, United States of America)
What is the test for admitting evidence of sexual assault in a sexual assault case? (California, United States of America)
If a defendant is convicted of a lesser charge of a greater charge of sexual assault, is the lesser charge necessarily included in the greater charge? (California, United States of America)
What is the relevant case law regarding allegations of sexual assault made against appellant in a sexual assault case? (California, United States of America)
In what circumstances will a prosecutor increase the sexual assault charge against a defendant to include additional sexual assault charges? (California, United States of America)
What is the effect of the Court of Appeal's recent finding that a defendant who has pleaded guilty to a charge of perverting the course of justice in a sexual assault case has been found guilty of a similar charge in a similar case? (California, United States of America)
What is the test for admitting prior sexual assault evidence in a sexual assault case? (California, United States of America)
What is the test for admitting or not admitting evidence in a sexual assault case? (California, United States of America)
Is there any reason to exclude evidence of sexual assault prior to the trial of defendant in his sexual assault case? (California, United States of America)
Can evidence of sexual intent be admitted in a sexual assault case? (California, United States of America)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.