What is the test for determining whether an uncharged crime is necessarily included in a charged crime?

California, United States of America


The following excerpt is from People v. Gomez, B277856 (Cal. App. 2017):

' "[a] defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime." ' " (People v. Bailey (2012) 54 Cal.4th 740, 752.)

"Two tests have traditionally been applied in determining whether an uncharged offense is necessarily included within a charged offensethe statutory or legal 'elements' test and the 'accusatory pleading' test. 'Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. 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. Sloan (2007) 42 Cal.4th 110, 117.)

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