Tag Archives: Lesser Included Offenses


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 […]


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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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Is the Erroneous Failure to Instruct on Malice Murder Always Harmless Error When the Jury Finds the Defendant Guilty of First Degree Murder?
August 5th, 2016

People v. Campbell (2015) 233 CA4th 148, suggested that a jury’s guilty verdict on felony murder and its true finding on a robbery special circumstance allegation do not render the failure to instruct on LIOs of malice murder harmless under Watson: While in the present case we are not dealing with the failure to give […]


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Is Misdemeanor Sexual Battery a Lesser Included of Sexual Battery by Fraud?
March 16th, 2015

  There is a split of authority among the Courts of Appeal on the question of whether or not misdemeanor sexual battery (PC 243.4(e)(1)) is a lesser included offense of sexual battery by fraud (PC 243.4 (c)(3).) (See, People v. Babaali (2009) 171 Cal.App.4th 982 and People v. Smith (2010) 191 Cal.App.4th 199.)   In […]


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Court Of Appeal Reverses For Failure To Instruct On Lesser Offense
February 27th, 2015

  The two subdivisions of Vehicle Code section 23110 state:   “(a) Any person who throws any substance at a vehicle or any occupant thereof on a highway is guilty of a misdemeanor. “(b) Any person who with intent to do great bodily injury maliciously and willfully throws or projects any rock, brick, bottle, metal […]


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