California, United States of America
The following excerpt is from People v. Sims, B244905 (Cal. App. 2014):
An uncharged crime is included in a greater charged offense if either (1) the greater offense cannot be committed without committing the lesser (the "elements test"), or (2) the accusatory pleading actually alleges all of the elements of the lesser offense (the "accusatory pleading test"). (People v. Wolcott (1983) 34 Cal.3d 92, 98.) To determine whether an offense is a lesser included, one of the two tests must be met. (People v. Lopez (1998) 19 Cal.4th 282, 288.) Error in failing to give lesser included instructions where required is reviewed under the People v. Watson (1956) 46 Cal.2d 818, 836 standard of harmless error. (People v. Breverman, supra, 19 Cal.4th at p. 165.)
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