California, United States of America
The following excerpt is from People v. Greenberger, 58 Cal.App.4th 298, 68 Cal.Rptr.2d 61 (Cal. App. 1997):
Greenberger, joined by her codefendants, argues that the trial court erred in failing to instruct on simple kidnapping as a lesser included 56 or lesser related offense to the charge of aggravated kidnapping. "Generally, the jury must be instructed on crimes that are necessarily included within the offense charged[.]" (People v. Ordonez, supra, 226 Cal.App.3d at p. 1233, 277 Cal.Rptr. 382.) A trial court has the "duty to instruct sua sponte on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present, but has no such duty when there is no evidence that the offense was less than that charged." (People v. Lewis (1990) 50 Cal.3d 262, 276, 266 Cal.Rptr. 834, 786 P.2d 892.)
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