Content of Lesser-Included Offenses

1-Murrieta-Immigration-Border-PatrolThe content of lesser-included offenses omits the statues language without a destinational parenthetical specific to elements, “shrinks to the vanishing point” which natural reading of the statute cannot discern.., thus the text under 11359 no-longer bears its meaning of “related definition of the offense of conviction. It “is ancient doctrine …that a defendant cannot be held to answer a charge not contained in the indictment, “ our criminal justice system has long permitted a defendant to be found “guilty of any lesser offense necessarily included in the offense charged”. See: also Schmuck v. United States, 489 U.S. 705, 718, 109 S. Ct. 1443, 1452, 103 L. Ed. 2d 734, 748 (1989) (where the indictment contains the elements of both offenses, both named and lesser included offenses, the indictment thereby gives notice to the defendant that he may be convicted on either charge).

    As here, “lesser included offense” is a term of art and which carries its own inherent requirement of particularity and does not provide any inclusion of factual basis for the plea of degree thereof, if any, of which defendant has been convicted, it can be …for less culpable mentally disabled offender or mitigate, commute, defer, or suspend the sentence imposed or an inchoate offense, such as attempt or conspiracy to any portion thereof.    The “bare” record of conviction in such a case is devoid of any indication as to what conduct responded pled guilty too. Consequently Defendant had “no way of knowing what conduct his/she is admitting when he pled guilty to conduct that was not identical to that charged in the Complaint. ‘See ;People v. French, 43 Cal. 4th 36 (2008) (proffer of facts by prosecuting attorney not admitted by the defendant is not an admission).

Because the plea agreement explicitly “amend[s] the complaint or information, to charge the offense to which the Defendant pleads,” we cannot look to the state indictment to identify the factual underpinnings of Anderson’s plea. See, e.g., United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (holding that for written plea and waiver of rights form to establish that defendant pleaded guilty to the facts listed in a charging document, the form must specify that defendant pleaded guilty “as charged” in the charging document).

In Sum “L.I.O. under 11359 extends far beyond any ordinary meaning of the term and can encompass transfer of control substance without consideration, exchange, give or dispose of to another (or to offer or agree to do the same). “To instruct on lesser included offense, it must be charged in the complain and there must be evidentiary dispute”. State v. Shane, 195 W. Va. 369, 465 S.E.2d 640 (1995), Moreover,the content of lesser-included offenses omits the statues language without a destinational parenthetical specific to elements, “shrinks to the vanishing point” which natural reading of the statute cannot discern.., thus the text under 11359 ”    L.I.O no-longer bears its meaning of “related definition of the offense of conviction.

The record in such case reveals ambiguity and confusion regarding the meaning of plea to a lesser included offense and WE MUST TERMINATE THE CASE!!

 

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