P. v. Fields
In addition to other crimes not relevant here, a jury convicted defendant of transportation of over 28.5 grams of marijuana (Health & Safe. Code, 11360, subd. (a) (count 1)) and possession of marijuana ( 11357, subd. (c)), the lesser included offense of count 2 ( 11359 (possession of marijuana for sale)). On appeal, defendant contends, as to count 1, that the trial court erred in not sua sponte instructing the jury on possession of marijuana as a lesser included offense. He further asserts the trial court erred in permitting his conviction of both transportation of marijuana on count 1 and, separately, its lesser included offense of possession of marijuana on count 2. Court conclude that defendants possession of marijuana was not a lesser included offense of his transportation of marijuana under either the elements or accusatory pleading tests; therefore, neither of defendants contentions have merit, and the judgment below is affirmed.
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