What is the test for whether a crime is a lesser included crime of another crime?

A crime is a lesser included offense of another crime if either of two tests is satisfied -- the statutory elements test or the accusatory pleading test. (People v. Birks

Page 6

(1998) 19 Cal.4th 108, 118.) Under the statutory elements test, an offense is included in the charged offense if all of its elements are among those in the statutory definition of the charged offense. (Ibid.) "Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.]" (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)

Appellant does not contend battery is a lesser included offense of robbery or attempted robbery under the statutory elements test. A defendant may commit attempted robbery by harboring a specific intent to commit robbery and by performing a direct and unequivocal act toward its commission, but without a physical touching that would constitute battery. (People v. Romero (1943) 62 Cal.App.2d 116, 121.)