What is the test for a jury to determine whether there are all of the elements of the charged greater offense?

California, United States of America


The following excerpt is from People v. Price, B262143 (Cal. App. 2016):

a question as to whether all of the elements of the charged greater offense are present. [Citations.]" (People v. Huggins (2006) 38 Cal.4th 175, 215.) "[T]his does not mean that the trial court must instruct sua sponte on the panoply of all possible lesser included offenses. Rather, . . . '"such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is '"evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]"' that the lesser offense, but not the greater, was committed."' [Citation.]" (Ibid.; see also People v. Breverman (1998) 19 Cal.4th 142, 162.)

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