Is petty theft a lesser included or lesser related crime of burglary?

California, United States of America


The following excerpt is from People v. Smith, D067802 (Cal. App. 2016):

(1) Did the trial court err in declining to instruct on petty theft as a lesser included or lesser related offense of burglary after it concluded petty theft was not a lesser included offense of the burglary? (People v. Tatem (1976) 62 Cal.App.3d 655, 658 [by definition "petty theft (or theft of any kind) is not a necessarily included offense of burglary because burglary can be committed without committing theft"]; see People v. Birks (1998) 19 Cal.4th 108, 112-113.)

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