What is the test for overturning a conviction based on a necessarily included or necessarily included crime?

California, United States of America


The following excerpt is from People v. Perez, B258487 (Cal. App. 2015):

exception to this rule prohibits multiple convictions based on necessarily included offenses. [Citations.]' [Citation.]" (People v. Sanders (2012) 55 Cal.4th 731, 736.) "When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed. [Citations.]" (Ibid.)

"[T]heft is a lesser included offense within robbery . . . . " (People v. Estes (1983) 147 Cal.App.3d 23, 28.) " 'The greater offense of robbery includes all of the elements of theft, with the additional element of a taking by force or fear. [Citation.] If the defendant does not harbor the intent to take property from the possessor at the time he applies force or fear, the taking is only a theft, not a robbery. [Citations.]' [Citation.]" (People v. Whalen (2013) 56 Cal.4th 1, 69.)

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