Tag Archives: Lesser Included Offenses


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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Grand Theft Not An LIO Of Embezzlement
April 30th, 2014

  People v. Nazary (2011) 191 Cal. App. 4th 727, held that grand larceny by an employee as defined in CC 1800 is not a lesser included offense of embezzlement. The opinion also makes clear that an employee may be convicted of both grand theft by employee as defined in CC 1800 and embezzlement as […]


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