What is the duty of a court to instruct a jury on any uncharged lesser offense that is necessarily included in a charged offence?

A trial court has a sua sponte duty to instruct the jury on any uncharged lesser offense that is necessarily included in a charged offense if there is substantial evidence from which the jury could reasonably conclude that the defendant committed the lesser included offense but not the charged offense. ( People v. Smith (2013) 57 Cal.4th 232, 244, 159 Cal.Rptr.3d 57, 303 P.3d 368.) "To determine if an offense is lesser and necessarily included in another offense for this purpose, we apply either the elements test or the accusatory pleading test. Under the elements test, if the statutory elements of

[9 Cal.5th 270]