People v. Woods

Here the Fourth District reverses the defendant's convictions on eight counts of forcible oral copulation with a minor over 14 and one count of forcible oral copulation in concert with a minor over 14 for the failure of the trial court to give instructions on the lesser included offenses of non-forcible oral copulation.  The defendant's analogous argument as to his forcible rape convictions are rejected.  

The issue is when one crime is a necessary lesser included of another crime.  The analysis involves two tests, the "legal elements test" (whether the statutory elements of the greater include all statutory elements of the lesser) and the "accusatory pleading test" (whether the facts alleged in the accusatory pleading include all the elements of the lesser offense).  However enhancements are not to be considered under the "accusatory pleading test".  Because the trial judge erroneously characterized the age element in the forcible oral copulation counts as an enhancement instead of an element, those counts are reversed.  As to the forcible rape counts, the accusatory allegation that Woods was subject to the "one strike" rule due to the victim's age is found to be more akin to an enhancement and he loses on those counts.   

The opinion contains a statement of tortile facts.  These facts support a notion that it is probably not a good idea to base a relationship on a mutual love of playing World of Warcraft to the point your family abandons you.  It is also probably not a good idea to move in with someone who gropes your 12 year old daughter while you are in the room.  Or maybe I'm just old fashioned.