Does the trial court have a duty to instruct the jury that "aiding and abetting prostitution" is a lesser-included charge to section 266h, subdivision (a) of the California Penal Code?

California, United States of America


The following excerpt is from The People v. Gibson, 108 Cal.Rptr.2d 809, 90 Cal.App.4th 371 (Cal. App. 1998):

Appellant alleges the trial court had a duty, as requested by appellant, to instruct the jury that "aiding and abetting prostitution" was a lesser-included charge to section 266h, subdivision (a), insofar as that section prohibits solicitation. Appellant offers no support for this proposition, other than to recite the general rule that "a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 117-118.) The trial court must instruct on lesser-included offenses, even absent a request or over a party's objection, "if there is substantial evidence [that] the defendant is guilty only of the lesser [offense]." (Id. at p. 118, emphasis added.)

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