What is the test for determining whether a crime is necessarily or necessarily a lesser included offense of another crime?

California, United States of America


The following excerpt is from People v. Scheidt, 231 Cal.App.3d 162, 282 Cal.Rptr. 228 (Cal. App. 1991):

"Generally, two tests are used to determine whether in a particular case a crime is a necessarily and lesser included offense of another crime. The first test looks to the elements of the crime: if, as a matter of legal definition, the greater offense cannot be committed without concomitantly satisfying the elements of the lesser offense, the latter offense is a necessarily lesser included offense. Secondly, a crime is a necessarily lesser included offense if it is within the offense specifically charged in the accusatory pleading. [Citations.]" (People v. Barrick, supra, 33 Cal.3d at. p. 133, 187 Cal.Rptr. 716, 654 P.2d 1243.)

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