Can a defendant be convicted of an uncharged crime if, but only if, the un charged crime is necessarily included in the charged crime?

California, United States of America


The following excerpt is from People v. Armstrong, C079636 (Cal. App. 2018):

" 'A defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime. [Citations.] . . . " 'This reasoning rests upon a constitutional basis: "Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial." [Citation.]' " [Citation.] The required notice is provided as to any charged offense and any lesser offense that is necessarily committed when the charged offense is committed.' " (People v. Sloan (2007) 42 Cal.4th 110, 116; see 1159.)

"[A] lesser offense is necessarily included in a greater 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. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 117-118, fn. omitted.) Because the allegations in the information do not satisfy the accusatory pleading test, we proceed to apply the statutory elements test.

Other Questions


If a defendant is convicted of a lesser charge of a greater charge of sexual assault, is the lesser charge necessarily included in the greater charge? (California, United States of America)
Can a defendant who is convicted of receiving stolen property in one crime, but never charged or convicted of the other crime, be required to pay restitution for losses sustained in other crimes? (California, United States of America)
Can a defendant be convicted of an uncharged crime of a lesser included offense of a charged crime? (California, United States of America)
Can a jury use uncharged crime evidence to determine that defendant was more likely to have committed the charged crimes because he committed the uncharged crimes? (California, United States of America)
Is a charge for an uncharged crime included in a charge of a lesser included crime? (California, United States of America)
Does the doctrine of the lesser included offense doctrine apply to a defendant who has pleaded guilty to a charge of a related but not necessarily included crime? (California, United States of America)
Can a defendant plead not guilty to an uncharged charge that is not necessarily included in the alleged crime? (California, United States of America)
What is the test for having multiple convictions based on a necessarily included or necessarily included crime? (California, United States of America)
When a defendant is charged with conspiracy to commit a lesser included crime, what is the duty of the court to instruct the jury on all necessarily included offenses? (California, United States of America)
Can a defendant be convicted of both a greater crime and a necessarily included lesser crime for the same conduct? (California, United States of America)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.