California, United States of America
The following excerpt is from People v. Russell, 45 Cal.App.4th 1083, 53 Cal.Rptr.2d 241 (Cal. App. 1996):
An offense is a necessarily included lesser where the greater offense cannot be committed without necessarily committing the lesser. (People v. Lohbauer (1981) 29 Cal.3d 364, 369, 173 Cal.Rptr. 453, 627 P.2d 183.) "As a general rule, joyriding ( [Pen.Code] 499b) is not a necessarily included lesser offense of unlawful taking or driving a vehicle ( [Veh.Code] 10851(a)) for the reason that the latter offense can be committed without satisfying the elements of the former offense. [Citations.]" (People v. Green (1995) 34 Cal.App.4th 165, 174-175, 40 Cal.Rptr.2d 239.) Likewise, we conclude that unlawful taking or driving a vehicle is not a necessarily included lesser offense of kidnapping during commission of a carjacking (Pen.Code, 209.5).
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