Is a lesser offence included within a greater offence?
California, United States of America
The following excerpt is from People v. Sphabmixay, D067329 (Cal. App. 2015):
"Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Reed, supra, 38 Cal.4th at p. 1227.) Thus, a lesser offense is necessarily included within a greater offense if the greater offense cannot be committed without also committing the lesser offense. (People v. Montoya (2004) 33 Cal.4th 1031, 1034 (Montoya).)
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