What is the test for a jury to convict a defendant of a lesser, but not the greater, sex offence?

California, United States of America


The following excerpt is from People v. Nerio, B268107 (Cal. App. 2016):

"[A] trial court must instruct on an uncharged offense that is less serious than, and included in, a charged greater offense, . . . whenever there is substantial evidence raising a question as to whether all of the elements of the charged greater offense are present. [Citations.]" (People v. Huggins (2006) 38 Cal.4th 175, 215.) "[T]his does not mean that the trial court must instruct sua sponte on the panoply of all possible lesser included offenses. Rather, . . .'"such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is '"evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]"'

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that the lesser offense, but not the greater, was committed."' [Citation.]" (Ibid.; see also People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).)

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