What is the test for determining whether a crime is a lesser included offense of a greater crime?
California, United States of America
The following excerpt is from People v. Bradley, 280 Cal.Rptr.3d 477, 65 Cal.App.5th 1022 (Cal. App. 2021):
Two tests are used to determine "whether a crime is a lesser included offense of a greater offense: the elements test and the accusatory pleading test. [Citation.] Either of these tests triggers the trial court's duty to instruct on lesser included offenses." ( People v. Gonzalez (2018) 5 Cal.5th 186, 197, 233 Cal.Rptr.3d 791, 418 P.3d 841.) "Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (
[280 Cal.Rptr.3d 489]
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