What is the test for determining whether a lesser, uncharged, offence is included in a greater charged offence?

A "trial court has a duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater." (People v. Brothers (2015) 236 Cal.App.4th 24, 29-30.) "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)

To determine whether a lesser uncharged offense is necessarily included in a greater charged offense, one of two tests must be met. (People v. Lopez (1998) 19 Cal.4th 282, 288.) The "elements" test is met if the statutory elements of the greater offense include all the elements of the lesser offense so that the greater offense cannot be committed without committing the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117-118.) The "accusatory pleading" test is met if "the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater [offense] cannot be committed without also committing the lesser [offense]." (Ibid.; see People v. Bailey (2012) 54 Cal.4th 740, 752 [the accusatory pleading test is not applicable when there are no concerns about notice].)