Does a defendant have a duty to instruct the jury on its own motion concerning the crime of being an accessory after the fact as a lesser included crime of accessory to murder?
California, United States of America
The following excerpt is from People v. Jennings, 114 Cal.Rptr.3d 133, 237 P.3d 474, 50 Cal.4th 616 (Cal. 2010):
law, a lesser offense is 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. ( People v. Birks (1998) 19 Cal.4th 108, 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073 ( Birks ).)
To the extent defendant claims the trial court had a duty to instruct the jury on its own motion concerning the crime of being an accessory after the fact as a lesser included offense of murder, however, his claim necessarily fails. It is well settled that murder can be committed without the murderer being an accessory after the fact, and [t]he latter offense, therefore, is not necessarily included in the former. [Citations.] ( People v. Majors (1998) 18 Cal.4th 385, 408, 75 Cal.Rptr.2d 684, 956 P.2d 1137.)
To the extent defendant contends the accessory instruction was required because
[237 P.3d 513]
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