What is the test to determine if a lesser offense is necessarily included in a greater offense?

California, United States of America


The following excerpt is from People v. Tabron, A144079 (Cal. App. 2019):

Cal.4th 232, 240.) The court can apply one of two tests to determine if a lesser offense is necessarily included in a greater offense: the elements test and the accusatory pleading test. (People v. Lopez (1998) 19 Cal.4th 282, 288.) The elements test is satisfied if the greater offense cannot be committed without also committing the lesser offense. (Ibid.) "Under the accusatory pleading test, a lesser offense is included within the greater charged offense ' "if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed." ' " (Id. at pp. 288-289.)

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