Multiple Convictions Based on Necessarily Included Offenses

In People v. Wolcott (1983) 34 Cal. 3d 92 [192 Cal. Rptr. 748, 665 P.2d 520], the Supreme Court rejected the defendant's contention that the trial court should have instructed sua sponte that assault with a deadly weapon is a lesser included offense of a charge of robbery enhanced by a firearm use allegation. In reaching its conclusion, the court held that a firearm use enhancement is not part of the accusatory pleading for purposes of defining lesser included offenses. The considerations of the Wolcott court in so holding, such as notice to an accused of what he might have to defend against and the burden placed on the trial court determining which instructions to give, are absent from an analysis concerned with the rule against multiple convictions. In People v. Ortega, supra, 19 Cal. 4th 686, the Supreme Court observed "despite the seemingly absolute language of section 954 ('the defendant may be convicted of any number of the offenses charged'), there is an exception to the general rule permitting multiple convictions. 'Although the reason for the rule is unclear, this 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]." (Id. at p. 692, italics omitted.)