Can a defendant be convicted of a lesser uncharged crime if they are also charged with an assault with a deadly weapon?

A defendant charged with one crime may be convicted of a lesser uncharged crime if the uncharged crime is necessarily included in the charged crime. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) A trial court's duty to instruct sua sponte on the general principles of law relevant to issues raised by the evidence includes a duty to instruct on all necessarily included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.)

Two tests apply: Under California law, an uncharged lesser offense is necessarily included within a charged offense "if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117; see also People v. Sloan (2007) 42 Cal.4th 110, 117.) Tejeda contends that, in this case, under either test, the attempted murder charge when considered in conjunction with the firearm enhancement necessarily included a charge of assault with a deadly weapon.