What is the test for an appellate court to determine whether a crime of attempted robbery is a lesser included crime?

California, United States of America


The following excerpt is from People v. Flores, B232687 (Cal. App. 2012):

An appellate court "appl[ies] the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense." (People v. Cole (2004) 33 Cal.4th 1158, 1218.) The crime of attempt occurs when there is a specific intent to commit a crime and a direct but ineffectual act done towards its commission. ( 21a.) Attempted robbery is considered a lesser included offense of robbery. (People v. Calpito (1970) 9 Cal.App.3d 212, 220.)

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