What is the legal test for a defendant to be found guilty of a lesser included crime?

California, United States of America


The following excerpt is from People v. Huntsinger, E070886 (Cal. App. 2019):

Trial courts have a "'sua sponte duty to "instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense.'" (People v. Landry (2016) 2 Cal.5th 52, 96, original italics.) Thus, trial courts must provide "'instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.'" (People v. Breverman (1998) 19 Cal.4th 142, 154.)

But "error in failing sua sponte to instruct . . . on all lesser included offenses . . . must be reviewed for prejudice." (People v. Breverman, supra, 19 Cal.4th at p. 178.) A conviction may be reversed only if it is "'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred." (Ibid.) This assessment

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