MORENO, J., Concurring and Dissenting. I disagree with the majority’s view that a court never should consider the language of the accusatory pleading in deciding whether multiple convictions are proper. But I reach the same result as the majority in the present case, because the parties agree that defendant’s status as a convicted felon is not an element of the crimes of carrying a concealed firearm and possessing a loaded firearm in public and, thus, the allegations in those counts that defendant was a felon should not be considered in determining whether multiple convictions are proper.
“[T]his court has long held that multiple convictions may not be based on necessarily included offenses.” (People v. Pearson (1986) 42 Cal.3d 351, 355 [228 Cal.Rptr. 509, 721 P.2d 595].) In determining whether a defendant properly may be convicted of two crimes based upon a single act or course of conduct, we examine both “the elements of the offenses and the language of the accusatory pleading.” (People v. Ortega (1998) 19 Cal.4th 686, 698 [80 Cal.Rptr.2d 489, 968 P.2d 48].) We emphasized this point: “The determination of whether an offense cannot be committed without necessarily committing the included offense must be based . . . upon the statutory definitions of both offenses and the language of the accusatory pleading. [Citations.]” (Ibid.) Similar language appears in our decision in People v. Sanchez (2001) 24 Cal.4th 983, 988 [103 Cal.Rptr.2d 698, 16 P.3d 118]: “For purposes of the rule proscribing multiple conviction, ‘ “[u]nder California law, a lesser offense is necessarily included in a greater offense if either the statutory [1232]elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” ’ [Citation.]”
The importance of the distinction between the elements test and the accusatory pleading test is demonstrated by our decision in People v. Rogers (1971) 5 Cal.3d 129 [95 Cal.Rptr. 601, 486 P.2d 129], which held that the defendant properly could be convicted of transporting marijuana (Health & Saf. Code, § 11531) even though he had been acquitted of possessing marijuana (Health & Saf. Code, § 11530) because “possession of marijuana is not a necessary element of the offense of transportation of marijuana.” (People v. Rogers, supra, 5 Cal.3d at p. 131.) We explained that although usually a person must possess marijuana in order to transport it, this is not invariably so: “one may ‘transport’ marijuana or other drugs even though they are in the exclusive possession of another. [Citations.] For example, were defendant shown to have aided and abetted his passengers in carrying, conveying or concealing drugs in their possession, his conduct would have sustained a conviction of transportation.” (Id. at p. 134.) We were quick to point out in a footnote, however: “In cases where defendant’s possession is incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent possession is shown, the offense of possession is deemed to be necessarily included in the offense of transportation, and defendant may not be convicted of both charges. [Citations.]” (Id. at p. 134, fn. 3.)
Our decision in Rogers cited two decisions of the Court of Appeal that had held that a defendant could not be convicted of both possessing and transporting drugs where the act of transporting the drugs included possessing them. People v. Richardson (1970) 6 Cal.App.3d 70, 78 [85 Cal.Rptr. 607], held that the defendant could not be convicted of both possessing heroin (Health & Saf. Code, § 11500) and transporting a narcotic (Health & Saf. Code, § 11501): “The possession and transportation in the instant case clearly were the same act. Under the circumstances, the possession of the heroin was a lesser, but necessarily included, offense of the transportation of a narcotic.” (People v. Richardson, supra, at p. 78.) People v. Johnson (1970) 5 Cal.App.3d 844 [85 Cal.Rptr. 238], disapproved on other grounds in People v. Rubacalba (1993) 6 Cal.4th 62, 66 [23 Cal.Rptr.2d 628, 859 P.2d 708], held that the defendant could not be convicted of both possessing restricted dangerous drugs (Health & Saf. Code, § 11910) and transporting them (Health & Saf. Code, § 11912): “[T]he possession proved in the instant case was incidental to, and a necessary part of, the transportation charged. No prior, different or [1233]subsequent possession of the pill was shown. Under that circumstance the offense of possession was necessarily included in the offense of transporting the pill and appellant may not be convicted of both charges. [Citations.]” (Johnson, supra, at p. 847.)1
Under the elements test, therefore, a defendant may be convicted of both possessing and transporting the same drugs, because it is possible to transport drugs without possessing them. But under the accusatory pleading test, if the accusatory pleading alleged facts that, if proven, would establish that the defendant’s transportation of the drugs necessarily included possessing those drugs, the defendant could not be convicted of both offenses.
The majority unnecessarily departs from our past decisions based upon scanty reasoning that I do not find convincing. The majority correctly observes that a defendant may be convicted of an uncharged offense that is necessarily included within a charged offense if the language of the accusatory pleading “adequately warns the defendant that the People will seek to prove the elements of the lesser offense.” (People v. Lohbauer (1981) 29 Cal.3d 364, 369 [173 Cal.Rptr. 453, 627 P.2d 183].) From this, the majority leaps to the conclusion that the language of the accusatory pleading should not be considered in the present case because “this purpose has no relevance to deciding whether a defendant may be convicted of multiple charged offenses.” (Maj. opn., ante, at p. 1229.)
It is true that whether a defendant was given notice that the People would seek to prove the elements of a lesser offense does not affect whether multiple convictions are proper. But the majority fails to consider that the language of the accusatory pleading not only gives the defendant notice of the charges, it also is instructive in determining the nature of the offense of which the defendant was convicted. In People v. Guerrero (1988) 44 Cal.3d 343 [243 Cal.Rptr. 688, 748 P.2d 1150], for example, we held that the trial court properly considered the language of the accusatory pleadings of two prior convictions in determining that the defendant had been convicted of residential burglary. The trial court based its determination of the nature of the prior convictions on a review of “the record of each conviction, which included an accusatory pleading charging a residential burglary and defendant’s plea of guilty or nolo contendere.” (Id. at p. 345.)
In the same manner that the language of the accusatory pleading sheds light on the nature of a prior conviction, so too it sheds light on the nature of the crime of which a defendant was convicted for purposes of determining [1234]whether multiple convictions are proper. But this does not mean that every allegation in an accusatory pleading affects whether multiple convictions are proper. Consistent with our application of the accusatory pleading test in other contexts, I believe that allegations in the accusatory pleading that do not allege elements of the offense should not be considered in determining whether multiple convictions are proper.
Accordingly, we need not, and should not, depart from our established, and correct, statements in People v. Sanchez, supra, 24 Cal.4th 983, 988, and People v. Ortega, supra, 19 Cal.4th 686, 698.
In the present case, defendant was convicted of three offenses, among others: being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)),2 carrying a concealed firearm (§ 12025, subd. (a)(2)), and carrying a loaded firearm in public (§ 12031, subd. (a)(1)). We must determine whether the offense of being a felon in possession of a firearm is necessarily included within the other two offenses. If we do not consider the language of the accusatory pleading, the answer is no. A person who carries a concealed weapon does not necessarily commit the crime of being a felon in possession of a firearm. The same is true of a person who carries a loaded firearm in public.
But the accusatory pleading in the present case alleged that defendant was a felon in the counts charging him with carrying a concealed weapon and carrying a loaded weapon in public. The apparent reason the prosecutor included those allegations is that those offenses are “wobblers” that can be punished as either felonies or misdemeanors depending upon several enumerated factors. As relevant here, section 12025, subdivision (b)(1) provides that carrying a concealed firearm is a felony if the defendant previously has been convicted of a felony. Similarly, section 12031, subdivision (a)(2)(A) provides that carrying a loaded weapon in public is a felony if the defendant previously has been convicted of a felony.
If we were to consider the allegations in the accusatory pleading in all three of the counts under examination that defendant was a felon, the analysis of whether the offense of being a felon in possession of a firearm is necessarily included within the other two offenses changes; the answer would be yes. A felon who carries a concealed weapon necessarily also is a felon in possession of a firearm. The same is true of a felon who carries a loaded firearm in public.
[1235]The parties agree, however, that defendant’s status as a felon is not an element of the crimes of carrying a concealed weapon and carrying a loaded weapon in public. Rather, defendant’s status as a felon is a factor that elevates the sentence for the offense from a misdemeanor to a felony. (People v. Padilla (2002) 98 Cal.App.4th 127, 138 [119 Cal.Rptr.2d 457]; People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690] [“The prior conviction referred to in subdivision (b)(1) [of section 12025] is simply a sentencing factor which serves to elevate the offense from misdemeanor to felony; the prior conviction is not an element of the offense of carrying a concealed firearm within a vehicle proscribed in section 12025. [Citations.]”]; see also People v. Bouzas (1991) 53 Cal.3d 467, 473 [279 Cal.Rptr. 847, 807 P.2d 1076]; People v. Robinson (2004) 122 Cal.App.4th 275, 281 [18 Cal.Rptr.3d 744].)
In People v. Wolcott (1983) 34 Cal.3d 92, 101 [192 Cal.Rptr. 748, 665 P.2d 520], we held that allegations of sentencing enhancements should not be considered in applying the accusatory pleading test to determine a trial court’s sua sponte duty to instruct the jury regarding lesser included offenses. The defendant in Wolcott was charged with, and convicted of, robbery. The defendant claimed on appeal that the trial court had a sua sponte duty to instruct the jury that assault with a deadly weapon was a lesser included offense of robbery because the information alleged in addition to the robbery charge that the defendant used a firearm in committing the robbery within the meaning of section 12022.5. Noting that “ ‘section 12022.5 does not prescribe a new offense but merely additional punishment for an offense in which a firearm is used’ [citations],” we held “that an allegation of firearm use under section 12022.5 should not be considered in determining lesser included offense.” (People v. Wolcott, supra, at pp. 100-101.)
In my view, the accusatory pleading test should be applied in a similar way to determine whether multiple convictions are proper. In the present case, defendant’s status as a felon, although alleged in the information, is not an element of the crimes of carrying a concealed firearm and carrying a loaded firearm in public but was a sentencing factor and, thus, should not be considered in determining whether defendant can be convicted of being a felon in possession of a firearm in addition to those crimes.
Applying the accusatory pleading test in this manner to determine whether multiple convictions are permitted alleviates the concern expressed by the majority that using the accusatory pleading test could “lead to absurd results.” (Maj. opn., ante, at p. 1230.) The majority worries that if a hapless prosecutor were to allege in a charge of robbery “that the force used in the crime
[1236]consisted of killing the victim with malice” (ibid.), murder would become, under the accusatory pleading test, a necessarily lesser included offense of the robbery as pleaded. That would not happen if the accusatory pleading test were applied in the manner I propose. Malice is not an element of the crime of robbery. Thus, an unnecessary allegation in the accusatory pleading that a robbery was committed with malice should not be considered in applying the accusatory pleading test to determine if multiple convictions are permitted.
Accordingly, I agree with the result reached by the majority, but not with its reasoning.
We also cited in Rogers the decision in People v. Solo (1970) 8 Cal.App.3d 201, 208 [86 Cal.Rptr. 829], which recognized that a defendant could properly be convicted of both possession of marijuana for sale and transportation of marijuana.
Further statutory references are to the Penal Code.