Tag Archives: Lesser Included Offenses

Defendant Has Sixth Amendment Right Of Autonomy Over The Defense
May 30th, 2022

In People v. Bloom (Apr. 21, 2022, S095223) [pp. 34-35] Bloom was charged with killing 3 people. He admitted killing one but repeatedly objected to his lawyer admitting that he killed the other 2 and relying on a diminished mens rea defense to argue that Bloom was only guilty of manslaughter. Despite Bloom’s objections, the […]

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Is Assault by Means of Force Likely to Produce Great Bodily Injury a Lesser Included Offense of Assault With a Deadly Weapon?
June 1st, 2021

Review granted in People v. Aguayo, S254554. (D073304; 31 Cal.App.5th 758; San Diego County Superior Court; SCS295489.) to consider the following issues:   (1) Is assault by means of force likely to produce great bodily injury a lesser included offense of assault with a deadly weapon? (See People v. Aledamat (2019) [8] Cal.5th 1, 16, […]

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Drunk Driving Is Not an LIO of Gross Vehicular Manslaughter
March 9th, 2021

The defendant in People v. Machuca (2020) 49 Cal.App.5th 393, 397 contended that his drunk driving convictions should be dismissed because VC 23153 (drunk driving) is a lesser included offense of gross vehicular manslaughter while intoxicated (PC 191.5, subd. (a)) when the offenses arise from a single incident. The reviewing court rejected this argument because […]

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Deficiencies in Defense Evidence Cannot Make up for Shortcomings in Prosecution’s Evidence
August 13th, 2020

[Update of February 3rd, 2015 post] People v. Centeno (2014) 60 Cal. 4th 659 provides an important clarification of the presumption of innocence and the prosecution’s burden of proof: “…[D]eficiencies in the defense case [cannot] make up for shortcomings in [the prosecution’s case].” (Id., at 673.) For example, in People v. Brito (Sep. 19, 2019, […]

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Judicial Recognition That Juror Compromise May Produce Unreliable Verdicts When the Jury Is Given An All-Or-Nothing Choice Between Conviction and Acquittal
May 17th, 2020

The rationale for requiring courts to instruct on lesser-included offenses is to avoid forcing the jury into an ” ‘unwarranted all-or-nothing choice’ ” that creates the risk the jury will convict on the charged offense even though one of the elements remains in doubt because ” ‘the defendant is plainly guilty of some offense.’ ” […]

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Should Defendant’s Statements Which Show Guilt of Lesser Offense Be Viewed with Caution?
June 7th, 2019

In People v. Powell (2018) 6 Cal. 5th 136; 169 the defendant contended that the cautionary instruction regarding the defendant’s out of court oral admissions (CJ 2.71.7) “pertains only to statements harmful to the defense.” The CSC apparently agreed that the instruction does not apply to exculpatory statements: “[T]his instruction properly applies to ‘any extrajudicial […]

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Residential Robbery is a Lesser Included Offense of Home Invasion Robbery
July 2nd, 2018

Multiple convictions may not be based on necessarily included offenses based on one criminal act. (See, e.g., People v. Moran (1970) 1 Cal.3d 755, 763 [“If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed”].) In People […]

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Lesser Included Offenses: Accusatory Pleading Test – Consideration of Evidence from Probable Cause Showing
March 14th, 2017

People v. Ortega (2015) 240 Cal.App.4th 956, 967 held that: “Due process principles of fairness, and defendant’s right to be prosecuted only on the noticed charges consistent with the probable cause showing supporting the accusatory pleading, compel us to agree that sexual battery is a lesser included offense of forcible sexual penetration where, as here, […]

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CSC Review Granted: Lesser Included Offenses and Proposition 47
August 15th, 2016

The CSC has granted review in three cases to consider whether Proposition 47 (“the Safe Neighborhoods and Schools Act”) applies to the offense of unlawful taking or driving a vehicle (Veh. Code,  10851), because it is a lesser included offense of Penal Code section 487, subdivision (d), and that offense is eligible for resentencing to […]


Error to Instruct on Felony Murder, but Not Malice Murder, its Lesser Included Offenses, or the Defenses of Accident and Self-defense
August 8th, 2016

In People v. Gonzalez , District: 2 DCA , Division: 4 , Case #: B255375 the prosecutor charged appellants with malice murder but tried the case solely on a felony murder theory. The trial court did not instruct the jury on malice murder, its LIOs, or the defenses of accident and self-defense. “[U]nder the accusatory […]

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