Is assault a lesser-included crime than robbery?

The defendants concede assault is not a lesser-included offense of robbery under the statutory-elements test. By statute, a robbery may be committed by a taking from the person of another by means of force or fear. ( 211.) Because a robbery can thus be committed strictly by frightening a victim into surrendering property, this would not necessarily include assault, which requires an unlawful attempt to apply physical force and a present ability to apply such physical force. (Wolcott, supra, 34 Cal.3d at pp. 99-100, 192 Cal.Rptr. 748, 665 P.2d 520; People v. Hays (1983) 147 Cal.App.3d 534, 541, 195 Cal.Rptr. 252.) There is consequently no duty to instruct sua sponte on assault as a lesser-included offense of robbery as the two are defined. ¹⁶

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