Determining LIO
LIO I(A) General Rules: There are two tests for determining the existence of a lesser included offense:
First, if the lesser offense is “necessarily included” within the statutory definition of the charged offense, conviction of the included offense is expressly authorized under PC 1159. (People v. Lohbauer (81) 29 C3d 364, 369 [173 CR 453]; see also People v. Lopez (98) 19 C4th 282, 288 [79 CR2d 195].)
Second, it is well established that a crime is a lesser included offense of another if “the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” (People v. Geiger (84) 35 C3d 510, 517, fn 4 [199 CR 45]; see also People v. Lopez (98) 19 C4th 282, 288 [79 CR2d 195]; People v. Clarke (90) 50 C3d 583, 636 [268 CR 399] [offense is LIO if (1) included within the statutory elements; or (2) “the charging allegations of the accusatory pleading include language describing it in such a way that if committed in that manner the lesser offense must necessarily be committed.”]
People v. Fenenbock (96) 46 CA4th 1688, 1707-08 [54 CR2d 608] held that for purposes of determining whether an offense is included within the language of the accusatory pleading in a conspiracy charge, it is the description of the agreement within the accusatory pleading, not the description of the overt acts, which must be examined to determine whether a lesser offense was necessarily the target of the conspiracy.
It is black letter law that the trial court must instruct the jury on every theory of the case which is supported by substantial evidence. (People v. Edwards (85) 39 C3d 107, 116 [216 CR 397].) The court may not weigh the substantiality of the evidence to support an instruction by weighing the credibility of the defendant’s testimony. (People v. Glenn (91) 229 CA3d 1461, 1465-67 [280 CR 609].)
[See Brief Bank # B-704 for additional briefing discussing the accusatory language test for lesser included offenses.]
(See FORECITE F 6.10 n14.)
LIO I(B) Testimony As To Lack Of Intent Not Necessary: It is not necessary for the defendant to directly testify as to a lesser intent than that charged. For example, in People v. Anderson (83) 144 CA3d 55, 62 [192 CR 409], the court rejected the attorney general’s argument that instruction on the defense of consent is only necessary when the defendant has testified as to consent. “The flaw in the argument is that it assumes a person’s state of mind can only be show by direct evidence. It is elementary that a defendant’s state of mind is most often shown through circumstantial evidence ….” (Anderson 144 CA3d at 62.)
LIO I(C) Saille Does Not Relieve Trial Court Of Its Sua Sponte Burden To Instruct Upon Intoxication Based Lesser Included Offenses: People v. Saille (91) 54 C3d 1103, 1117-20 [2 CR2d 364] held that the trial court has no sua sponte duty to instruct upon the relationship between intoxication and the formation of the mental state elements of the charge (e.g., CJ 4.21). However, Saille did recognize that the trial court has a sua sponte duty to instruct upon lesser included offenses which are supported by the evidence. (See Saille 54 C3d at 1121 [distinguishing People v. Ray (75) 14 C3d 20, 31-32 [120 CR 377] by differentiating between the duty to instruct upon pinpoint theories as opposed to lesser included offenses].) Two cases have confused the court’s duty to instruct upon lesser offenses as opposed to its duty to pinpoint the intoxication theory per CJ 4.21. (See People v. Walker (93) 14 CA4th 1615, 1622-23 [18 CR2d 431]; People v. Morales (92) 5 CA4th 917, 927 [7 CR2d 358].) To the extent that these cases suggest that there is no sua sponte duty to instruct on intoxication-based lesser offenses, they are wrongly decided.
NOTE: Walker and Morales concerned intoxication based lesser includeds to attempted murder. However, the availability of such lessers is a complex and somewhat unsettled area. (See FORECITE F 8.66 n3.)
LIO I(D) Enhancements: An enhancement may contain lesser included enhancements upon which instruction is required. (See FORECITE EA IV(B); FORECITE F 17.10e and FORECITE F 17.10f.)
LIO I(E)(1) Enhancement Allegations Not Considered In Determining Sua Sponte Duty To Instruct On Lesser Offense.
People v. Izaguirre (2007) 42 C4th 126 relied on the Court’s decision in People v. Sloan (2007) 42 C4th 110 to reject a claim that the U.S. Supreme Court’s decision in Apprendi, as interpreted in People v. Seel (2004) 34 C4th 535 in the context of federal double jeopardy jurisprudence, requires that conduct enhancements be treated as legal elements for the purpose of defining necessarily included offenses under the multiple conviction rule under People v. Reed(2006) 38 C4th 1224.
LIO I(E)(2) Whether Enhancement Allegations May Be Considered In Determining Lesser Included Offenses For Purposes Of Double Jeopardy.
People v. Sloan (2007) 42 C4th 110 declined to follow In re Jose H. (2000) 77 CA4th 1090 finding its reasoning unpersuasive. The Sloan court accordingly held that enhancements may be considered in evaluating whether a defendant has been wrongfully convicted of both a greater and lesser offense in violation of the double jeopardy clause of the Federal Constitution. The California Supreme Court has Along held that multiple convictions may not be based on necessarily included offenses. [Citation.]@ (People v. Pearson (86) 42 C3d 351, 355, italics in original; see also People v. Ortega (98) 19 C4th 686, 705 (Conc. And Dis. Opn. Of Chin, J.).
Sloan held that the Pearson rule is more than just an exception to PC 954 because it embodies an aspect of double jeopardy protection. (Sloan, 126 CA4th at 1159.) Accordingly, enhancements should be considered in determining lesser included offenses for purposes of the double jeopardy clause. (Id.)
LIO I(F) Applicability Of Adult Criminal Law Principles To Juvenile Proceedings: Adult criminal law principles of due process notice apply to juvenile proceedings in the context of lesser offenses. (See In re Alberto S. (91) 226 CA3d 1459, 1464 [277 CR 475].) Hence, a juvenile may not be held liable for a lesser offense unless that offense is (1) statutorily included within the charged offense; or (2) the charging allegations are such that the lesser offenses included within the greater. (See People v. Clark (90) 50 C3d 583, 636 [268 CR2d 399].)
LIO I(G) Specific Developments
PC 69 — Misdemeanor Resisting Arrest (PC 148(a)) is LIO of Felony Resisting an Executive Officer by the Use of Force or Threats of Violence. People v. Esquibel (92) 3 CA4th 850, 854-55 [5 CR2d 47].
PC 136.1(b) & PC 136.1(c) — Witness Intimidation. Misdemeanor intimidation of a witness (PC 136.1(b)) is a lesser included offense of felony intimidation of a witness by force or threat (PC 136.1(c)). (People v. Brenner (92) 5 CA4th 335, 340-41 [7 CR2d 260].)
PC 136.1 — Battery (PC 242) May Be Lesser Offense Of Witness Intimidation. Battery (PC 242) is a lesser offense of witness intimidation (PC 136.1). If the information alleges that the witness intimidation was accomplished by force, then the battery is a necessarily included lesser offense. If the information charges that the intimidation was accomplished by a threat of force, then the battery is a lesser related offense. (See People v. Pacheco UNPUBLISHED (H008735).) [The opinion and briefing in Pacheco are available to FORECITE subscribers. Ask for Opinion Bank # O-160 and Brief Bank # B-602.] See also FORECITE F 18.08.
PC 182 — Conspiracy. Conspiracy to commit theft is a lesser included offense of conspiracy to commit robbery. (People v. Kelley (90) 220 CA3d 1358, 1365-70 [269 CR 900].)
PC 187/PC 192(b) — Involuntary Manslaughter as LIO of 2nd Degree Child Abuse Murder. People v. Evers (92) 10 CA4th 588 [12 CR2d 637] recognized that involuntary manslaughter could be a lesser included offense of 2nd degree murder if the death was the result of the defendant’s inexperience as a parent in handling children and not the product of his conscious disregard of the risk to the child’s life. (Evers 10 CA4th at 597.) However, in Evers, defendant had inflicted serious injury on the victim previously and the only possible inference the jury could draw from the evidence was that the defendant knew and understood the probable consequences of his action. (Evers 10 CA4th at 598).
PC 187/PC 664 — Attempted Murder. Assault with a deadly weapon (PC 245) is not a lesser included offense of attempted murder. (People v. Gragg (89) 216 CA3d 32, 41 [264 CR 765].) However, it is a lesser related offense which must be requested. (Gragg 216 CA3d at 42.)
PC 206 — Torture. Felony child endangerment (PC 273a) is not necessarily a lesser offense of torture murder. (People v. Mincey (92) 2 C4th 408, 452 [6 CR2d 822].)
PC 209 — Attempts — Kidnap for Robbery. Attempted kidnap for robbery occurs when victim escapes before commission of the robbery. (People v. Mullins (92) 6 CA4th 1216, 1219-21 [8 CR2d 289].)
PC 211 — Robbery. Theft is a lesser included offense of robbery when the evidence establishes that the defendant enticed the victim into becoming intoxicated so that the defendant could take the victim’s property. Under these circumstances, the defendant has not taken the property by use of force or fear. (People v. Kelley (90) 220 CA3d 1358, 1366-69 [269 CR 900].)
PC 211 — Robbery. Theft is a lesser included offense of robbery if the intent to steal is formed “after force was used.” (People v. Turner (90) 50 C3d 668, 688 [268 CR 706]; see also People v. Webster (91) 54 C3d 411, 443 [285 CR 31] [right to pinpoint instruction on request]; People v. Kelly (92) 1 C4th 495, 530 [3 CR2d 677] [stealing from a dead person is theft unless defendant killed with intent to steal].)
PC 211 — Robbery. In People v. Mungia (91) 234 CA3d 1703, 1707-08 [286 CR 394], the court of appeal acknowledged that there must be evidence of something more than the amount of force necessary to accomplish the mere taking of the property itself in order to satisfy the force requirement of robbery; otherwise the crime is only theft. (See also People v. Morales (75) 49 CA3d 134, 139 [122 CR 157].)
PC 211 — Grand Theft Person as LIO of Robbery. PC 211 provides that robbery may be committed from the victim’s “immediate presence” or “from the victim’s person.” Hence, one charged simply with robbery in the words of the enactment or one charged specifically with stealing “from the person” is also charged with the lesser included offense of grand theft person. (PC 487(2).) (See People v. Chandler (65) 234 CA2d 705, 708 [44 CR 750].)
PC 211 — False Imprisonment is not LIO of Robbery. “False imprisonment is the unlawful violation of the personal liberty of another.” (PC 236.) “Personal liberty” is violated when the victim is “compelled to remain where he does not wish to remain, or go where he does not wish to go.” (People v. Haney (77) 75 CA3d 308, 313 [142 CR 186.] Hence, because a robbery can occur without a violation of the freedom to stand still or be mobile, false imprisonment is not a lesser included offense of robbery. (People v. Von Villas (92) 10 CA4th 201, 255-6 [13 CR2d 62].)
PC 211/PC 215 — Robbery And Carjacking Are Not LIO’s Of Each Other. People v. Dominguez (95) 38 CA4th 410 [45 CR2d 153].
PC 236/PC 237 — Misdemeanor False Imprisonment is LIO of Felony False Imprisonment. False imprisonment becomes a felony only when the force used is “greater than that reasonably necessary to effect the restraint.” (People v. Hendrix (92) 8 CA4th 1458, 1461-63 [10 CR2d 922].) Hence, misdemeanor false imprisonment is a lesser included offense of felony false imprisonment so long as the force used may be found to be only that necessary to effect the restraint. (Ibid; see also People v. Babich (93) 14 CA4th 801, 806-07 [18 CR2d 60].)
PC 236/PC 237 — Force is an Element of Both Felony and Misdemeanor False Imprisonment. Misdemeanor false imprisonment becomes a felony only when the force used is “greater than that reasonably necessary to effect the restraint.” (People v. Hendrix (92) 8 CA4th 1458, 1461-63 [10 CR2d 922].) Hence, misdemeanor false imprisonment is a lesser included offense of felony false imprisonment so long as the force used may be found to be only that necessary to effect the restraint. (Hendrix 8 CA4th at 1461.)
PC 243.4 — Sexual Battery. PC 243.4(d) creates a lesser offense of misdemeanor battery, an offense lacking the element of “unlawful restraint” required for felony sexual battery.
PC 243.4 — Sexual Battery. Simple assault (PC 240) is LIO of sexual battery. (People v. Alford (91) 235 CA3d 799, 804-05 [286 CR 762]; People v. Carapeli (88) 201 CA3d 589, 595, fn 3 [247 CR 478].)
PC 243.4 — Sexual Battery is LIO of Penetration with a Foreign Object (PC 289). (People v. Vu DEPUBLISHED (2002) 2002 DAR 6185, 2002 CDOS 4889; but see People v. Keeney (94) 24 CA4th 886, 888-89 [29 CR2d 451]; People v. Young DEPUBLISHED (92) 9 CA4th 1791 [12 CR2d 318].)
PC 246 — Shooting at an Inhabited Dwelling. A local ordinance against discharging a firearm may be a lesser included offense of shooting at an inhabited dwelling provided the elements of the local ordinance violation are included in the charging document. (See FORECITE F 9.03 n1.)
PC 261.5 — Unlawful Sexual Intercourse. Contributing to the delinquency of a minor (PC 272) is no longer a lesser included offense of unlawful sexual intercourse. (People v. Bobb (89) 207 CA3d 88, 92-96 [254 CR 707].)
PC 264.1 — Rape In Concert. Assault (PC 240) and assault with intent to commit rape (PC 220) are lesser included offenses of rape in concert (PC 264.1). (See In re Jose M. (94) 21 CA4th 1470, 1476-77 [27 CR2d 55].)
PC 288 — Oral Copulation. Sexual battery is not a lesser included offense of oral copulation. (People v. Muniz (89) 213 CA3d 1508, 1516-17 [262 CR 743]; see also, depublished opinion of People v. Marshall DEPUBLISHED (89) 213 CA3d 1113 [262 CR 152] [battery and misdemeanor child molestation are not included within PC 288(a)]; contra People v. Callan (85) 174 CA3d 1101, 1112-13 [220 CR 339].)
PC 314(1) — Indecent Exposure. Lewd conduct (PC 647(a)) is not a lesser included of indecent exposure. Earlier cases to the contrary are not persuasive because they predate Pryor v. Municipal Court (79) 25 C3d 238, 256 [158 CR 599], which defines the elements of lewd conduct. (See People v. Meeker (89) 208 CA3d 358, 361-62 [256 CR 79].)
PC 417.3 — Misdemeanor Brandishing. (PC 417(a)(2)) is a lesser included of felony brandishing in presence of motor vehicle occupant (PC 417.3). (People v. Miller DEPUBLISHED (91) 2 CA4th 64. [A copy of this opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-116.]
PC 452 — Misdemeanor Arson as LIO of Felony Arson. When a structure or other property is burned “recklessly” (i.e., without the intent that the structure or property be burned), the defendant is guilty of misdemeanor arson. (PC 452.) Hence, when the evidence provides a basis upon which to infer that the defendant did not have the requisite intent, instruction upon misdemeanor arson is required. (See People v. Schwartz (92) 2 CA4th 1319, 1324-25 [3 CR2d 816] [burning of a car within a garage with no intent to burn the structure is misdemeanor rather than felony arson even if the structure did burn]; see also In re Stonewall F. (89) 208 CA3d 1054, 1062-68 [256 CR 578] [reckless burning of a structure is misdemeanor arson (PC 452) not felony arson (PC 451)]; see also FORECITE F 14.80 n2.)
PC 484(1)/PC 487(3) — Auto Tampering is LIO of Grand Theft Auto. One who steals a car in violation of PC 484(1) and PC 487(3) must necessarily “tamper” with the vehicle within the meaning of VC 10852. (People v. Anderson(75) 15 C3d 806, 810-11 [126 CR 235].) Hence, auto tampering is a lesser included offense of grand theft auto. (Anderson 15 C3d at 810.)
PC 459/VC 10852 Auto Tampering Is LIO Of Auto Burglary. (People v. Mooney (83) 145 CA3d 502, 505 [193 CR 381].)
PC 12022.5 — Arming and Use Enhancements. [See FORECITE EA IV(B).]
PC 12303 — Possession of Destructive Device. Simple possession of a destructive device is a lesser included offense of reckless or malicious possession of such a device (PC 12303.2). (People v. Morse (92) 2 CA4th 620, 648 [3 CR2d 343].)
HS 11351.5 — Possession and Sale of Base Cocaine. Possession for sale of ordinary cocaine (HS 11350) is not a lesser included offense of possession or sale of base cocaine. (People v. Adams (90) 220 CA3d 680, 688-90 [269 CR 479]; see also, People v. Watterson (91) 234 CA3d 942, 944-47 [286 CR 13] [possession not LIO of transportation].)
VC 2800.2 — Nonwillful And Wanton Flight From An Officer (VC 2800.1) Is LIO Of Willful and Wanton Flight (VC 2800.2). FORECITE first suggested, in reliance upon the unpublished opinion of People v. JohnsonUNPUBLISHED (AO51065), that if the jury could conclude that the defendant did not drive “in a willful or wanton disregard for the safety of persons or property” then the trial court would have a sua sponte duty to instruct upon the lesser offense of VC 2800.1 (flight from a peace officer) when the defendant is charged with willful and wanton flight per VC 2800.2. This view is now supported by the published opinion of People v. Springfield (93) 13 CA4th 1674, 1679-81 [17 CR2d 278], which reduced a VC 2800.2 conviction to the lesser offense of VC 2800.1 because the trial court erroneously failed to instruct upon the lesser included offense when the defendant had testified that he did not willfully and wantonly flee the officer.
VC 10851 — Auto Taking, Etc. People v. Ivans (92) 2 CA4th 1654, 1664-65, fn 7 [4 CR2d 66], recognized the difficulty in instructing upon all three auto taking crimes (PC 487(3); VC 10851 and PC 499b) which may have been included in an auto theft charge. The Ivans court recommended that a jury instruction be fashioned from those portions of the Barrick decision (People v. Barrick (82) 33 C3d 115, 134 [187 CR 716]) which distinguish the code sections; see also People v. Stoltz DEPUBLISHED (92) 2 CA4th 1669 [4 CR2d 463] [PC 499b is LIO of VC 10851.] [A copy of the Stoltz opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-156.] NOTE: The Ivans court also suggested that the legislature revisit the auto theft statutes to reduce the confusion. (Ivans at 1624, fn 7.)
Ivans and Stoltz provide examples of facts which justified instruction on joy riding. (Ivans [defendant found asleep in car on the day after it was taken]; Stoltz [defendant drove car 100 miles]; see also Barrick 33 C3d at 135 [extensive ignition tampering not inconsistent with joy riding].)
NOTE: Effective January 1, 1997, PC 499b was amended, deleting reference to “any automobile, motorcycle, or other vehicle.” The new statute only pertains to bicycles, motorboats or vessels. PC 487h was repealed, and “automobile” was added to the grand theft statute (PC 487(d)), effective January 1, 1997. (See FORECITE F 14.37 n4 [ALERT: Legislative Changes To Auto Theft And Related Statutes].)
VC 23566(a) (former VC 23190(a)) As LIO Of VC 23566(b) (former VC 23190(b)). See FORECITE F 12.60 n6.
RT 10406 — Failure to File a Tax Return (RT 10401) is LIO of Willful Failure to File a Return. Failure to file a tax return defines a strict liability offense with but a single element: the individual must have failed to file a return. (RT 19401; People v. Jones (83) 149 CA3d Supp 41, 47 [197 CR 273].) Thus, RT 19401 is a lesser included offense of RT 10406. (See People v. Smith (84) 155 CA3d 1103, 1182-85 [203 CR 196].) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-557.]
Research Notes
Cases – People v. Davidson (2008) 159 CA4th 205 [attempted murder is LIO of murder (PC 187)].
See Annotation, Lesser-related state offense instructions: Modern status, 50 ALR4th 1081 and Later Case Service.
