Is a charge under section 12022.5 of the California Penal Code for possession of a firearm an allegation of firearm use included in a charge of a lesser included crime?

California, United States of America


The following excerpt is from People v. Benjamin, 124 Cal.Rptr. 799, 52 Cal.App.3d 63 (Cal. App. 1975):

'An allegation of applicability of Penal Code section 12022.5 is not part of a charge of an offense itself. It merely provides for added penalty in crimes in which a firearm is used and is a legislatively mandated method of requiring and providing for such penalty. It was so held in People v. Henry (1970) 14 Cal.App.3d 89 (91 Cal.Rptr. 841). We now further hold, as a logical [52 Cal.App.3d 72] consequence of this rule, that an allegation of firearm use for purposes of Penal Code section 12022.5 is not to be considered in determining whether the accusation encompasses a lesser included offense.' (43 Cal.App.3d 666, 673--674, 117 Cal.Rptr. 738, 743.)

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