Is a conviction under section 220 of the California Criminal Code for assault with intent to commit a felony during the commission of a first degree burglary a lesser included crime?

California, United States of America


The following excerpt is from People v. Quintana, F071079 (Cal. App. 2016):

Appellant's conviction under section 220 is for committing assault with intent to commit a felony during the commission of a first degree burglary. As appellant separately argues, and the People have conceded, burglary in the first degree is a lesser included offense of assault with intent to commit a felony during the commission of a first degree burglary. (People v. Dyser (2012) 202 Cal.App.4th 1015, 1020 (Dyser).) Under the statutory elements test, "a lesser offense is necessarily included in a greater offense if the statutory elements of the greater offense ' "include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." ' " (Ibid.)

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