What is the test for instructing a jury on a lesser included crime of robbery?
California, United States of America
The following excerpt is from People v. Smith, 29 Cal.App.4th 739, 35 Cal.Rptr.2d 72 (Cal. App. 1994):
The trial court must instruct on a lesser included offense when the evidence raises a question as to whether all of the elements of the charged offense are present, and there is sufficient evidence to justify a conviction of a lesser offense. 6 (People v. Turner (1990) 50 Cal.3d 668, 690, 268 Cal.Rptr. 706, 789 P.2d 887.) Theft is a lesser and necessarily included offense of robbery, which latter offense includes the element of force or fear. (Ibid.)
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