To anyone unfamiliar with the elements of unlawfully manufacturing an assault weapon (Penal Code § 30600(a)) and possession of an assault weapon (Penal Code § 30605(a)), the issue of possession being a lesser-included offense of manufacturing certainly arises and if one is convicted of both crimes, are such convictions redundant or “double punishment” for the same conduct.
This issue arose, surprisingly, from a stalking case. Gregory Lee Wise met R.F. on a dating website in 2011. The two had two dates with each other before R.F. told Mr. Wise that she was not interested in pursuing a relationship.
Mr. Wise then did quite a few unwise things. He texted her and called her over 900 times over the following three years, even though R.F. only responded to him by telling him to stop.
In 2015, he threatened to kill himself if R.F. did not reciprocate his feelings toward her and changed his profile on the dating website to “[R.F.] you are the only one for me.” He also called her his “soulmate” and wrote that he had been “’stalkering’ her latterly. Whatever that word means that concept means. She so fraidy [sic] of me she won’t even dare respond so I guesses [sic] I will have to confront her.”
The police, however, did not go to Mr. Wise’s house because of complaints from R.F. In fact, it does not appear she contacted the police. Instead on June 22, 2015, Mr. Wise was arrested on a train when another rider called 911 to report Mr. Wise had a gun.
When officers arrested Wise, they found a map to R.F.’s house and a document titled “Plan Trackering [sic]” that discussed putting a tracking device on a vehicle. Mr. Wise also had a document with R.F.’s license plate number and a description of her vehicle.
Police later searched Mr. Wise’s house and found several weapons. Among the guns recovered was a FN Herstal Belgium SCAR 176. The store Mr. Wise bought it from had to convert the gun to make it compliant with California gun laws by adding a bullet button and reducing the magazine capacity. When police found the Herstal in Mr. Wise’s house, it did not have the bullet button and the magazine capacity had been increased.
The Placer County District Attorney’s Office charged Mr. Wise with stalking, unlawfully manufacturing an assault weapon as to the Herstal (Penal Code § 30600(a)), nine counts of possession of an assault weapon, including one for the Herstal (Penal Code § 30605(a), as well as felony commercial burglary, felony grand theft of property and petty theft arising out of ammunition Mr. Wise allegedly stole from a gun store.
The jury found Mr. Wise guilty of all charges except two of the automatic weapon possession counts. The judge sentenced him to thirteen years and four months as follows: eight months (midterm) for stalking, eight years (upper term) for unlawful manufacturing on the Herstal, eight months (one-third midterm) each for six of the assault weapon possession, and eight months for commercial burglary, all to run concurrently. The judge imposed and stayed pursuant to section 654 three years (upper term) for both grand theft and remaining possession conviction for the Herstal.
Mr. Wise appealed the convictions on multiple grounds, but this article will only cover his argument that the judge failed to instruct the jury on assault weapon possession (§ 30605) for the Herstal, a lesser included offense of unlawfully manufacturing an assault weapon (§ 30600) because there was substantial evidence he possessed the Herstal.
This argument, if successful, would only lower his sentence by eight months.
The Third Appellate District court approached this argument by pointing out that the issue actually was not whether the judge should have instructed on a lesser included offense, because the judge did instruct the jury on possession of the Herstal (count 3) in addition to instructing the jury on manufacturing the Herstal (count 2).
The issue then, instead, is whether Mr. Wise was subject to multiple convictions because the possession offense is a lesser included offense of the manufacturing offense.
The appellate court found it was not by applying the “elements test.” People v. Reed (2006) 38 Cal. 4th 1229, 1229 [“In deciding whether multiple convictions are proper, a court should consider the statutory elements” of each offense]; People v. Scheidt (1991) 231 Cal. App. 162, 165-171 [“only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding”].
“Under the elements test, if the statutory elements of the greater offense [by a longer sentence] include all the statutory elements of the lesser offense, the latter is necessarily included in the former.” Reed, supra, at 1227. In other words, “[i]f the crimes are defined in such a way as to make it impossible to commit the greater offense without also committing the lesser,” then the lesser is necessarily included in the greater and defendant’s conviction of the lesser must be vacated.” People v. Miranda (1994) 21 Cal. App. 4th 1464, 1467.
In comparing possession of an assault weapon and manufacturing an assault weapon, the court found that not all the elements of possession were included in manufacturing, so the two convictions were affirmed.
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