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

California, United States of America


The following excerpt is from People v. Swearington, 140 Cal.Rptr. 5, 71 Cal.App.3d 935 (Cal. App. 1977):

The test to be used for analyzing whether a particular lesser offense is necessarily included in a greater offense is set forth in People v. West (1970), 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409. In West, the test to be applied is stated in the following language: 'The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense. " (Id. at p. 612, 91 Cal.Rptr. at p. 395, 477 P.2d at p. 419.)

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