California, United States of America
The following excerpt is from People v. Padilla, F073817 (Cal. App. 2019):
"Under the accusatory pleading test, the allegation of malice murder with deliberation and premeditation on its face gave rise to possible lesser included offenses of second degree murder, voluntary manslaughter, and involuntary manslaughter." (People v. Campbell (2015) 233 Cal.App.4th 148, 159-160.) Thus, the charge here notified defendant, for due process purposes, that he must also be prepared to defend against any lesser offense necessarily included therein, including second degree murder, even if the lesser offense was not expressly set forth in the indictment or information. (Accord, People v. Birks, supra, 19 Cal.4th at p. 118 ["When an accusatory pleading alleges a particular offense, it thereby demonstrates the prosecution's intent to prove all the
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elements of any lesser necessarily included offense. Hence, the stated charge notifies the defendant, for due process purposes, that he must also be prepared to defend against any lesser offense necessarily included therein, even if the lesser offense is not expressly set forth in the indictment or information"]; People v. Lohbauer (1981) 29 Cal.3d 364, 369 ["[E]ven when the charge does not so specify, the requisite notice is nonetheless afforded if the lesser offense is 'necessarily included' within the statutory definition of the charged offense; in such event conviction of the included offense is expressly authorized"].)
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