California, United States of America
The following excerpt is from People v. Trace, D050099 (Cal. App. 10/31/2007), D050099 (Cal. App. 2007):
A trial court has a duty to instruct sua sponte on all lesser included offenses, where there is substantial evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed. (People v. Breverman, supra, 19 Cal.4th at pp. 154, 162.) Simple assault on a peace officer is a lesser included offense of assault on a peace officer with a deadly weapon; the difference between the two crimes is the use or nonuse of a deadly weapon. (Pen. Code, 241, subd. (a), 245, subd. (c).)
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