What is the test for determining whether an offense is necessarily included in a lesser offense?

California, United States of America


The following excerpt is from People v. Robinson, 180 Cal.Rptr.3d 796, 232 Cal.App.4th 69 (Cal. App. 2014):

5 There are two tests for determining whether an offense is a necessarily included lesser offense. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. (People v. Reed, supra, 38 Cal.4th at pp. 12271228, 45 Cal.Rptr.3d 353, 137 P.3d 184.) The accusatory pleading test applies in determining whether a trial court must instruct the jury on an uncharged lesser offense. (Ibid. ) It does not apply in determining whether a charged offense is necessarily included in another charged offense, as in this case. (Id. at pp. 12281231, 45 Cal.Rptr.3d 353, 137 P.3d 184.)

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