People v. Wolcott

In People v. Wolcott (1983) 34 Cal.3d 92, two defendants were charged with robbery and other crimes. ( Id. at p. 95.) The court rejected the defendants' contention that assault with a deadly weapon was a lesser included offense in a charge of robbery enhanced by use of a firearm. ( Id. at p. 96.) Wolcott explained that "a 'use' enhancement is not part of the accusatory pleading for the purpose of defining lesser included offenses." (Ibid.) "California courts have consistently stated that 'section 12022.5 a firearm use enhancement does not prescribe a new offense but merely additional punishment for an offense in which a firearm is used.'" ( Id. at p. 100.) The court concluded, "an allegation of firearm use under section 12022.5 should not be considered in determining whether an offense is a lesser included offense." ( Id. at p. 101.)