Is a lesser included crime to another crime where both crimes are charged?
California, United States of America
The following excerpt is from People v. McComb, B264663 (Cal. App. 2016):
In assessing whether one crime is a necessarily included, lesser offense to another crime where both crimes are charged, we look solely to the statutory elements of the two offenses and ask whether "the greater offense include[s] all of the statutory elements of the lesser offense." (Reed, supra, 38 Cal.4th at p. 1227; People v. Sanders (2012) 55 Cal.4th 731, 737; People v. Bailey (2012) 54 Cal.4th 740, 751.) In other words, "[i]f
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the crimes are defined in such a way as to make it impossible to commit the greater offense without also committing the lesser," then the lesser is necessarily included in the greater and a defendant's conviction of the lesser must be vacated. (People v. Miranda (1994) 21 Cal.App.4th 1464, 1467; Reed, at p. 1227 ["[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former"].)
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