Is possession of a controlled substance necessarily included in a charge of possessing the same controlled substance for the purpose of sale?
California, United States of America
The following excerpt is from People v. Maeshack, B245582 (Cal. App. 2013):
An offense is necessarily included in another if either the statutory elements of the greater offense or the facts alleged in the accusatory pleading include all of the elements of the lesser offense, so that the greater offense cannot be committed without also committing the lesser. (People v. Birks (1998) 19 Cal.4th 108, 117.) The nature of the defense is irrelevant to the determination of whether an offense is necessarily included in a charged offense.
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Possession of a controlled substance is necessarily included in a charge of possessing the same controlled substance for the purpose of sale. (People v. Saldana (1984) 157 Cal.App.3d 443, 456-457.)
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