April 17, 2017
2017-IPG#29 (LESSER INCLUDED OFFENSES)
Do you know the difference between the “statutory elements” and “accusatory pleading”
tests for determining whether one offense is a lesser included offense of another offense?
Do you know which offenses are potentially lesser included offenses of which other
offenses?
Do you know whether and when a court must give a lesser included offense?
Do you know if, or when, a court must instruct on lesser included offenses of the
underlying felony in a felony murder case?
Do you know whether attempted crimes are always lesser included offenses of the
completed crime?
Do you know whether and/or when the giving of a lesser included offense is required to be
given over a defense or prosecution objection?
Do you know when time-barred lesser included offenses can be given?
The answer to these questions (and many other issues involving lesser included offenses)
can be found in this IPG and the accompanying podcast (featuring Santa Clara County DDA
Chuck Gillingham). The table of contents begins on the following page. A comprehensive
list of crimes along with their lesser included offenses begins on page 85.
The podcast will provide 50 minutes of general MCLE credit. Click the following link to access it:
http://sccdaipg.podbean.com/
NOTICE: The IPG podcast is now fully downloadable to mobile devices for convenient self-study credit while
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*IPG is a publication of the Santa Clara County District Attorney’s Office©. Reproduction of this material for purposes of
training and use by law enforcement and prosecutors may be done without consent. Reproduction for all other purposes
may be done only with consent of the author.
1
TABLE OF CONTENTS
I.
ISSUES SURROUNDING THE GIVING OF LESSER INCLUDED OFFENSES
7
1.
What’s the authority for instruction on lesser included offenses or attempts?
7
2.
What is the rationale behind allowing convictions on lesser included offenses?
8
3.
When is an offense a necessarily lesser included offense of another offense?
8
4.
What is the “elements” test all about?
9
A.
B.
C.
D.
5.
Under the elements test, do you take into account whether the defendant could be
found guilty as an aider and abettor or co-co-conspirator in determining whether
the greater offense could be committed without committing the lesser offense?
10
Do you apply the elements test when the greater statutory offense encompasses
several different kinds of acts?
11
Is the elements test used in other contexts than when deciding whether a defendant
is entitled to a lesser included instruction?
12
Does the elements test prohibit treating one offense as a lesser offense of another
offense if the same evidence is required to support all elements of both offenses?
12
What’s the accusatory pleading test all about?
A.
Should you use the accusatory pleading test in deciding whether multiple
convictions can stand?
15
16
B.
Should you use the accusatory pleading test in deciding whether a conviction on one
offense bars a subsequent prosecution on another offense?
17
C.
Be aware that while it is standard practice to charge a violation of a statute by
alleging all the different ways in can be violated (in the conjunctive) even though
only it was only violated in one way, courts may view the conjunctive charging
literally for purposes of applying the accusatory pleading test.
18
Be aware that when applying the accusatory pleading test, it is not always clear
whether there really are disjunctive elements, e.g., the crime of robbery
21
If the charging document uses language alleging alternative ways of violating a
statute but the prosecution only proceeds under one of those ways, is the defendant
still entitled to lesser included instructions that are only applicable under the way
not proceeded upon?
22
D.
E.
6.
Do you consider what the actual evidence has shown in determining whether an offense
is a lesser included offense under either the statutory elements or accusatory pleading test? 27
7.
In assessing whether an offense is a lesser included offense, do you consider enhancements
or prior convictions?
27
2
8.
In assessing whether an offense is a lesser included offense, do you consider penalty
provisions?
28
9.
Can a lesser included offense carry a greater penalty than the greater offense?
30
10.
When is a court required to instruct the jury on a necessarily lesser included offense sua
sponte?
30
11.
In assessing whether there is “substantial evidence,” are there any guidelines?
31
12.
What constitutes “substantial evidence” to give lesser included offense instructions in
murder cases?
32
A.
What constitutes substantial evidence for giving a second-degree malice murder
instruction as a lesser included offense of first degree (malice) murder?
32
What constitutes substantial evidence to support the giving of an instruction on
second-degree felony murder as a lesser included offense of first-degree felony
murder?
35
What constitutes substantial evidence to support the giving of a lesser included
instruction on a “heat of passion/sudden quarrel” voluntary manslaughter?
37
What constitutes substantial evidence to support the giving of a lesser included
instruction on a “imperfect self-defense” voluntary manslaughter?
46
What constitutes substantial evidence that an unintentional killing occurred during
a misdemeanor such that an involuntary manslaughter instruction is warranted?
50
What constitutes substantial evidence that a killing occurred during a lawful act
which might produce death without due caution and circumspection so as to
support the giving of an involuntary manslaughter instruction?
51
What constitutes substantial evidence a killing without malice occurred during the
commission of a noninherently dangerous felony (or an inherently dangerous
assaultive felony) so as to support the giving of an involuntary manslaughter
instruction?
51
When must an instruction on attempting to commit a crime be given as a “lesser included
offense” of the substantive crime charged?
54
B.
C.
D.
E.
F.
G.
13.
A.
Should an instruction on attempt be given when the law does not recognize an
attempt to the substantive crime as a crime? Or the substantive crime itself
prohibits attempts?
58
14.
Is being an accessory to a felony ever a lesser included offense of the felony?
58
15.
If the prosecution is proceeding against the defendant on a natural and probable
consequences theory of guilt, is a defendant entitled to instructions on necessarily lesser
included offenses of the alleged “reasonably foreseeable” offense?
59
3
16.
In a felony-murder case, if the defendant is not charged with the substantive felony itself,
does a judge have a sua sponte obligation to instruct on lesser offenses of the substantive
felony?
59
17.
Should a court instruct on lesser included enhancements of other enhancements?
60
18.
Can a jury consider multiple special circumstances if one special circumstance is a “lesser
included” special circumstance of the other?
61
Is a court required to give lesser included offenses of crimes alleged as aggravating
factors in the penalty phase of a capital trial?
62
Do the rules governing the giving of necessarily included lesser offenses apply to crimes
divided into degrees?
62
21.
Should a lesser included offense be given if it is an infraction?
62
22.
Should a lesser included offense be given if it would be barred by the statute of
limitations?
62
23.
Should the grand jury be given instructions on potential lesser included offenses?
64
24.
Should the trial judge give an instruction on a lesser included offense regardless of
whether the defense asks for the instruction or objects to the giving of such an
instruction?
64
Should the trial judge give an instruction on a lesser included offense regardless of
whether the prosecutor asks for the instruction or objects to the giving of such an
instruction?
65
Does it make a difference if giving of the lesser included offense is inconsistent with the
defendant’s theory of defense?
65
27.
What is a “lesser related offense?
66
28.
If the defense requests the jury be instructed on a lesser related offense, should the court
give the instruction?
66
19.
20.
25.
26.
A.
Can a court refuse to give a lesser-related instruction even when both parties
request it?
67
B.
Can a trial court modify a verdict to reflect a conviction for a lesser-related offense?
67
C.
Does the rule barring instruction on lesser-related offenses apply when the lesserrelated offense is charged?
68
If a defendant is convicted of a charged lesser related offense in one trial, but the
greater related offense has to be retried, is the defendant entitled to either an
instruction on the lesser related offense and/or to introduce evidence of the prior
conviction on the lesser related offense?
68
D.
4
29.
If evidence exists to show a lesser related offense, can the court, over a prosecutor’s
objection, give an instruction on the lesser related offense?
69
Can a court give an instruction on a lesser related offense if the defense and
prosecution both request that it be given?
69
Can a defendant be separately charged with both the greater offense and its necessarily
lesser included offense?
69
Can a defendant be convicted of both a greater offense and its necessarily lesser included,
but separately charged offense?
69
33.
How should the jury be instructed when the lesser included offense is not charged?
71
34.
How should the jury be instructed when the defendant is charged with both the greater
and lesser offense?
72
35.
What should happen when the jury only renders a verdict on the lesser offense?
73
36.
What should happen when the jury is deadlocked on the greater offense?
74
37.
Can a jury be instructed on (and defendant convicted of) more than one lesser included
offense when a charge has multiple lesser included offenses?
74
If a defendant is convicted of both the necessarily lesser included offense and the greater
offense, which offense must be reversed?
75
30.
31.
32.
38.
39.
May a court substitute a lesser included offense for a greater offense in determining whether
to grant a motion for acquittal pursuant to Penal Code section 1118.1?
76
40.
What is the standard on review for error based on failure to give instructions on lesser
included offenses, or on failure to properly instruct on the “acquittal first rule?”
76
If a defendant does not ask for an instruction on a lesser included offense, will the failure
to do so prevent reversal on appeal even if substantial evidence existed to give such an
instruction?
79
41.
A.
42.
43.
How does the “invited error” doctrine work in the context of deciding whether
failure to give a lesser included instruction requires reversal?
79
If a judge erroneously gives instruction on a non-lesser included offense and
the defendant is convicted of that offense, can the defendant complain about it on
appeal?
80
Can a court that finds insufficient evidence to uphold a greater offense modify the verdict
to reflect a conviction for a lesser included offense?
81
A.
B.
Can a court that finds insufficient evidence to uphold a greater offense modify a
single conviction to reflect convictions for two or more lesser included offenses?
May a court reduce a conviction to an attempted offense under Penal Code
sections 1181(6) or 1260?
5
81
82
II.
LIST OF LESSER INCLUDED OFFENSES
6
85
I.
ISSUES SURROUNDING THE GIVING OF LESSER
INCLUDED OFFENSES
Prosecutors need to know when one offense is a lesser necessarily included offense of another offense in
several different kinds of situations, the most common being when deciding whether to give the jury an
instruction on an uncharged lesser included offense. However, the issue of what constitutes a
necessarily included offense can also crop up in other circumstances: (i) in the context of deciding
whether a defendant may remain convicted of a charged offense alleged to be a lesser offense of another
charged offense; (ii) in the context of deciding whether double jeopardy or Penal Code section 1023 bars
a subsequent prosecution, i.e., because a conviction on a lesser included offense will bar a subsequent
prosecution on a greater offense and vice versa; (iii) in the context of deciding whether a reviewing court
may reduce a conviction overturned (on appeal or after a motion for new trial) for lack of sufficient
evidence to a lesser offense; and (iv) in the context of deciding whether the prosecution has established
sufficient evidence to proceed on a lesser included offense after granting a Penal Code section 1118.1
motion for acquittal as to the charged offense.
1.
What’s the authority for giving instructions on lesser
included offenses or attempts?
Statutory Authority: Penal Code § 1159, in pertinent part, provides that a judge or jury “may find the
defendant guilty of any offense, the commission of which is necessarily included in that with which he is
charged, or of an attempt to commit the offense.” (Pen. Code, § 1159.)
State Constitutional Authority: “It is clear, as a matter of state constitutional law, that trial courts
are required to give instructions on all lesser offenses necessarily included within the filed charges, when
there is substantial evidence supporting a conviction for a lesser offense, regardless of whether the
parties request such instructions or even oppose them.” (People v. Rundle (2008) 43 Cal.4th 76, 142,
emphasis added by IPG; see also People v. Breverman (1998) 19 Cal.4th 142, 155 [“Cases have
suggested that the requirement of sua sponte instructions arises, among other things, from the
defendant’s right under the California Constitution’ to have the jury determine every material
issue presented by the evidence’”], emphasis added by IPG.)
Federal Constitutional Authority: The federal constitutional right to lesser included offenses is
more circumscribed than the state constitutional right, “prohibiting only in capital cases those situations
in which the state has created an ‘artificial barrier’ preventing the jury from considering a noncapital
verdict other than a complete acquittal and thereby calling into question the reliability of the outcome.”
(People v. Rundle (2008) 43 Cal.4th 76, 142 citing Beck v. Alabama (1980) 447 U.S. 625; Schad v.
Arizona (1991) 501 U.S. 624, and Hopkins v. Reeves (1998) 524 U.S. 88.)
7
2.
What is the rationale behind allowing convictions for lesser
included offenses?
The primary purpose behind allowing juries to convict of lesser included offenses was laid out in People
v. Barton (1995) 12 Cal.4th 186: “Our courts are not gambling halls but forums for the discovery of
truth.’ [Citation.] Truth may lie neither with the defendant’s protestations of innocence nor with the
prosecution’s assertion that the defendant is guilty of the offense charged, but at a point between these
two extremes: the evidence may show that the defendant is guilty of some intermediate offense included
within, but lesser than, the crime charged. A trial court's failure to inform the jury of its option to find
the defendant guilty of the lesser offense would impair the jury’s truth-ascertainment function.” (Id. at
p. 196.)
The rule requiring the giving of lesser included offenses when warranted by the evidence avoids
“presenting the jury with an ‘unwarranted all-or-nothing choice,’ encourages ‘a verdict ... no harsher or
more lenient than the evidence merits’ [citation], and thus protects the jury’s ‘truth-ascertainment
function’ [citation]. ‘These policies reflect concern [not only] for the rights of persons accused of crimes
[but also] for the overall administration of justice.’ [Citation.]” (People v. Smith (2013) 57 Cal.4th
232, 243–244 quoting People v. Breverman (1998) 19 Cal.4th 142, 155.)
3.
When is an offense a necessarily lesser included offense of
another offense?
“A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater
offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser
offense, such that the greater cannot be committed without also committing the lesser.” (People v.
Birks (1998) 19 Cal.4th 108, 117.)
Thus, as discussed in People v. Clark (1990) 50 Cal.3d 538, 636, there are two tests for determining
whether an offense is a necessarily lesser included offense of another offense:
If the greater statutory offense cannot be committed without committing the lesser because all of the
elements of lesser offense are included in the elements of the greater
or
If 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.
The first test is called the “elements” test. The second test is called the “accusatory pleading” test.
(People v. Lopez (1998) 19 Cal.4th 282, 288-289.)
8
4.
What is the “elements” test all about?
The elements test is satisfied when “all the legal ingredients of the corpus delicti of the lesser offense
[are] included in the elements of the greater offense.” (People v. Lopez (1998) 19 Cal.4th 282, 288.)
In determining whether the greater offense cannot be committed without also committing the lesser
offense, courts “do not consider the underlying facts of the case or the language of the accusatory
pleading.” (People v. Sanders (2012) 55 Cal.4th 731, 739.)
There is an older line of cases that indicated that an offense may be a lesser included offense when the
actual facts established by the evidence at trial make it impossible to commit the allegedly greater
offense without also committing the allegedly lesser included offense. (See People v. Murphy (2007)
154 Cal.App.4th 979, 983; People v. Thomas (1991) 231 Cal.App.3d 299, 304-306.) For various
reasons, this is no longer the test for assessing whether an offense is a lesser included offense in any
context. (Ibid; see also People v. Ortega (1998) 19 Cal.4th 686, 698 [outlining reasons].) The
current “elements” test looks strictly at the statutory elements of the respective offenses in the abstract
to decide if the allegedly greater offense could be committed without necessarily committing the
allegedly lesser offense. (People v. Reed (2006) 38 Cal.4th 1224, 122.)
In determining whether an offense is a lesser included offense, it does not make a difference whether the
allegedly lesser included offense is likely to occur when the allegedly greater offense is committed;
what matters is whether the elements of the allegedly greater offense necessarily include the elements
of the allegedly lesser offense. (See People v. Murray (2008) 167 Cal.App.4th 1133, 1140.)
Nor does the statutory elements test “depend on which statute covers the broader range of conduct.
Rather, [courts] ask if the greater offense cannot be committed without also committing the lesser
offense.” (People v. Sanders (2012) 55 Cal.4th 731, 739.)
However, while the “traditional” elements test for determining whether one offense is a lesser included
offense of another (i.e., “[i]f a crime cannot be committed without also necessarily committing a lesser
offense, the latter is a lesser included offense within the former”) is oft-cited, the California Supreme
Court has recently departed from this formulation when “the same evidence is required to support all
elements of both offenses[.]” (People v. Robinson (2016) 63 Cal.4th 200, 207 citing to People v.
Shockley (2013) 58 Cal.4th 400, 405–406, emphasis in original; see also People v. Chenelle (2016)
4 Cal.App.5th 1255, 1263.) In that specific circumstance, “[e]ach is its own offense, based on different
statutes that apply to the same conduct; neither can be said to be a lesser of the other.” (Ibid.) This
slight variation on the elements test is discussed in greater depth below, in question 4-D at pp. 12-15.)
9
A.
Under the elements test, do you take into account whether the
defendant could be found guilty as an aider and abettor or co-coconspirator in determining whether the greater offense could be
committed without committing the lesser offense?
Although it is often said that “if a crime cannot be committed without also necessarily committing a
lesser offense, the latter is a lesser included offense within the former” (People v. Lopez (1998) 19
Cal.4th 282, 288), this statement can be misleading to the extent it implies that an offense is not
a lesser included offense of a greater offense if a person can be deemed criminally liable
for the greater offense without committing the lesser offense. This is because a defendant may be found
guilty under either an aiding and abetting theory or a conspiracy theory of a greater offense without
having committed all the elements of either the lesser or the greater offense. (See Pen. Code, § 31 [“All
persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether
they directly commit the act constituting the offense, or aid and abet in its commission, or, not being
present, have advised and encouraged its commission, . . . are principals in any crime so committed.”];
CALCRIM 6.10.5 [“A conspiracy is an agreement between two or more persons with the specific intent to
agree to commit the crime of , and with the further specific intent to commit that crime, followed by an
overt act committed in this state by one or more of the parties for the purpose of accomplishing the
object of the agreement.”].)
However, the question is not whether a person can be found liable for a greater offense without actually
committing the lesser offense but whether all the elements of the lesser offense are included in the
elements of the greater offense. (See People v. Rosales (1964) 226 Cal.App.2d 588, 592 [noting “a
person may be convicted of a crime even though he did not commit one or more of the prohibited acts
constituting the elements of the crime” and criticizing defendant for failing to distinguish between the
substantive greater crime, together with its elements, on the one hand, and those who may be found
guilty of committing the greater crime];* cf., People v. Murphy (2007) 154 Cal.App.4th 979, 984
[noting possession of drugs is not lesser included of sale of drugs because, inter alia, a person can act as
a broker of a sale without possessing drugs].)
*Editor’s note: Rosales has since been repudiated to the extent it holds that a defendant cannot sell drugs
without possessing them. (See this IPG memo, section II at p. 95). However, the principle that the test for
defining a lesser included offense does not take into consideration the fact someone can be liable as an aider
and abettor without committing the crime itself was not repudiated. If this were not the case, no crime could
ever be viewed as a lesser included of another because the greater crime could always be committed without
the lesser crime necessarily being committed.
10
B.
Do you apply the elements test when the greater statutory offense
encompasses several different kinds of acts?
There are some statutes that prohibit a variety of behaviors, each of which could potentially be a standalone crime. (See e.g., Health & Saf. Code, § 11351 [prohibiting possession for sale of a variety of
different controlled substances].) It could be argued that the rule that an offense is not a necessarily
lesser included offense unless the greater offense cannot be committed without also committing the
lesser offense should not be taken literally when it comes to statutory offenses that prohibit a variety of
different kinds of conduct. A strict interpretation of the elements test would mean that straight
possession of heroin in violation of Health and Safety Code section 11350 is not a lesser included offense
of section 11351 just because a violation of section 11351 could also be based on possessing cocaine for
sale. Yet, while there are few cases going into an in-depth explanation of how the elements test works in
this context, cases generally find that where the greater and lesser statute both cover the exact same
drugs, as in the case of section 11350 and 11351, the former is going to be found to be a lesser included
offense of the latter. (See this IPG memo, section II, at pp. 94-95)
On the other hand, where the purportedly lesser included offense prohibits some conduct not prohibited
by the purportedly greater offense, the courts will not find one to be a lesser of the other – at least under
the elements test. For example, in People v. Williams (2009) 170 Cal.App.4th 587, the court held
that possession of methamphetamine in violation of Health and Safety Code section 11377(a) was not a
lesser included offense (under the elements test) of possession of a controlled substance while armed
with a loaded firearm in violation of Health and Safety Code section 11370.1 on the ground that a
conviction for violating section 11370.1 may also be based on possession of heroin or cocaine, among
other substances, that were not included in Health and Safety Code section 11377(a). (Id. at pp. 644645.) Williams has subsequently been cited favorably on this point by the California Supreme Court in
People v. Sanders (2012) 55 Cal.4th 731, 741.) Similarly, in People v. Sosa (2012) 210 Cal.App.4th
946, the court held that possession of cocaine in violation of Health and Safety Code section 11350 was
not a lesser included offense of possessing cocaine while armed in violation of Health and Safety Code
section 11370.1, because, under the elements test, the lists of controlled substances prohibited by the two
statutes differed. (Id. at p. 949.)
Editor’s note: It should be pointed out that though that both Williams and Sosa were only deciding
whether convictions for the lesser and greater offenses could stand. In that circumstance, only the elements
test is used. (See this IPG memo, question 5-A at p. 16.) Presumably, under the “accusatory pleading test,”
the outcome would have been different, i.e., the crime of possession of heroin would be treated as a lesser
offense of the crime of possession of heroin while armed where the accusatory pleading expressly charged
possession of heroin while armed.
11
And in People v. Delgado (2017) 2 Cal.5th 544, the court considered all the means specified in section
189 to arrive at first degree murder, including felony murder, in finding first degree murder was not a
lesser included offense of an assault by a life prisoner with a deadly weapon or infliction of great bodily
injury (Pen. Code, § 4500) even though these alternative theories of first degree murder were not
implicated by the facts or relied upon by the prosecution at trial. (Id. at p. 572.)
C.
Is the elements test used in other contexts than when deciding
whether a defendant is entitled to a lesser included instruction?
There are two other contexts where it is necessary for a court to utilize the elements test for deciding
whether one offense is a necessarily included offense of another offense.
First, the elements test is used when deciding whether a defendant may be convicted of multiple charged
offenses, i.e., in deciding if one of the charged offenses is a lesser included offense of another charged
offense. (See People v. Medina (2007) 41 Cal.4th 685, 702.)
Second, the elements test is used in deciding whether double jeopardy or Penal Code section 1023 bars a
subsequent prosecution, i.e., because a conviction on a lesser included offense will bar a subsequent
prosecution on a greater offense and vice versa. (People v. Herrera (2006) 136 Cal.App.4th 1191,
1198-1200; People v. Scott (2000) 83 Cal.App.4th 784, 796; see also People v. Kelley (1997) 52
Cal.App.4th 568, 576.)
D.
Does the elements test prohibit treating one offense as a lesser
offense of another offense if the same evidence is required to
support all elements of both offenses?
In People v. Shockley (2013) 58 Cal.4th 400, the California Supreme Court had to decide whether a
trial court had an obligation to give a sua sponte instruction on battery (Pen. Code, § 242) as a lesser
included offense of lewd and lascivious conduct with a child under 14 years of age (Pen. Code, § 288(a)).
(Id. at p. 402.) The defendant argued “that touching a child with lewd intent is inherently harmful and
objectively offensive, and, accordingly, every touching that satisfies the elements of section 288(a),
because done with lewd intent, necessarily is harmful or offensive for purposes of the battery statute.”
(Id. at p. 405.) The Shockley majority observed that if defendant were correct, it “would mean this
form of battery (where lewd conduct supplies the required harmful or offensive touching) is not a lesser
and included offense of lewd conduct but is essentially the identical offense. If guilt of battery is
predicated on guilt of lewd conduct—i.e., if a person is guilty of battery because that person committed
lewd conduct—neither crime would have an element not also required of the other. Substantial evidence
could never exist that an element of the lewd conduct offense is missing but that the defendant is guilty
12
of battery as a lesser included offense. [Citation.] A jury could never find the defendant not guilty of
lewd conduct (perhaps because of the lack of lewd intent), but guilty of battery, without finding some
other element of battery not included within lewd conduct. Accordingly, even under defendant’s
argument, the court would never have to instruct on battery as a lesser included offense of lewd
conduct.” (Ibid [albeit, the court also noted that battery could be charged in the alternative because a
defendant can “easily commit battery without also committing lewd conduct, as when a person touches a
child nonconsensually and harmfully but without lewd intent.”].) The majority then laid out the rule
that “when the elements of two offenses are essentially identical, as when guilt of battery
would be predicated on being guilty of lewd conduct, neither is a lesser and included offense of the
other.” (Id. at p. 406 [and noting as well that the absence of any “lewd intent would be a complete
defense to a lewd conduct charge” and thus charging only lewd conduct would not provide the defendant
with the due process notice of the need to defend additionally against a battery charge based on an
offensive touching not included within the elements of lewd conduct].)
Accordingly, the court concluded “if only lewd conduct is charged, the trial court has no duty to instruct
on battery as a lesser included offense” while noting that “if both lewd conduct and battery are charged,
the court would have to instruct on battery, but that would be as a separately charged offense, and not as
a lesser included offense.” (Ibid.) The concurring and dissenting opinion in Shockley characterized
what the majority did as creating a “new test.” (Id. at p. 409.) Although it might also be characterized
as simply creating a new “analysis.”
Editor’s note: Shockley should not be viewed as standing for the proposition that battery is not a lesser
included offense of other forcible sex offenses. (See e.g., People v. Hughes (2002) 27 Cal.4th 287, 366
[battery is a lesser included offense of forcible sodomy].)
The California Supreme Court applied this “new test” again in the case of People v. Robinson (2016)
63 Cal.4th 200. In Robinson, the defendant was charged with multiple counts of sexual battery by
misrepresentation of professional purpose (Pen. Code, § 243.4(c)). On appeal, the prosecution conceded
that there was insufficient evidence to support two of the courts, but persuaded the Court of Appeal to
reduce those two offenses to convictions for misdemeanor sexual battery (Pen. Code, § 243.4(e)(1)). The
California Supreme Court then had to decide whether misdemeanor sexual battery was a lesser included
offense of sexual battery by misrepresentation of professional purpose in order to determine whether the
convictions could properly be reduced. (Id. at p. 204.) The court initially observed that the requirement
under section 243.4(c) that a victim be “unconscious of the nature of the act because the perpetrator
fraudulently represented that the touching served a professional purpose” and the requirement under
section 243.4(e)(1) that “the touching is against the will of the person touched,” amounted to the same
thing: “the victim’s lack of consent to the touching.” (Id. at pp. 207–208.) Thus, both crimes required
the touching of an intimate part of the victim, done with a sexual purpose and without consent. (Id. at
p. 210.) The Robinson court recognized that “[t]raditional description of the elements test would
13
appear to make misdemeanor sexual battery a lesser included offense of sexual battery by
misrepresentation of professional purpose” since the latter could not be committed without also
committing the former. (Id. at p. 210.) However, relying on the “new test” of Shockley, the court
concluded neither offense was a lesser included offense of the other because “the traditional description
is insufficient in circumstances where the same evidence is needed to establish all elements of both
offenses.” (Ibid.) The court held “[i]n such a case, if the evidence fails to support the jury’s finding on
any element of one offense, the remaining findings are insufficient to support a conviction of the other.
The two offenses overlap entirely based on the facts presented and the manner in which the case is tried,
leaving no room for a lesser included offense.” (Robinson at p. 210.)
In the case before it, the Robinson court noted that the failure of the evidence to show lack of consent
for purposes section 243.4(c) was equally insufficient to establish lack of consent for purposes of
misdemeanor sexual battery. The court acknowledged that a lack of consent for purposes of the
misdemeanor sexual battery might be shown in other ways than by showing the victim was unconscious
of the nature of the act- and even recognized that, on the evidence presented, the jury could have found
that neither woman agreed to defendant's touching even though they were not deceived. However, the
court went on to explain that it is not enough to say the jury could have made a finding required to
support a conviction; to reduce the conviction, the record must show the jury did make the finding. But
the jury was never asked to consider those other ways and to reduce the conviction to misdemeanor
sexual battery, a reviewing court would have to make additional factual findings – something it is not
empowered to do when modifying a verdict pursuant to Penal Code section 1181, subdivision 6. (Id. at
pp. 211-213.)
Another reason the court gave for declining to allow a reduction of the offenses to misdemeanor sexual
batteries was the potential notice problems that would arise. Based on the charge of sexual battery by
misrepresentation of professional purpose, the defendant would have received notice that the
prosecution was going forward on a theory that there was lack of consent due to fact the victim was
unconscious of the nature of the act. But the defense would not have received notice that they could be
convicted of the lesser offense of misdemeanor sexual battery based on other reasons for finding consent
was vitiated. Since defendant was not given “notice to prepare a defense against the charge that he
touched his victims without their consent in any way other than by tricking them into thinking they were
receiving a professional service,” it would not be fair to allow the conviction for the offense of
misdemeanor sexual battery. (Id. at pp. 212-213; see also People v. Chenelle (2016) 4 Cal.App.5th
1255, 1263 [utilizing this new test identified in Robinson and Shockley to find that simple battery
(Pen. Code § 242) was not a lesser included offense of a lewd act on a dependent adult by a caretaker in
violation of Penal Code section 288(c)(2))].)
14
Editor’s note: Although this new analysis was applied in Shockley in determining whether a lesser
included offense should have been given at trial and in Robinson in determining whether it was proper to
modify a sentence pursuant to Penal Code section 1181(6), the Robinson court specifically left open the
question of whether its “analysis of the elements test would apply to a defendant facing multiple convictions,”
i.e., where a court must decide whether to allow both a greater and alleged lesser offense to stand.
(Robinson, at p. 213, fn. 7.)
Editor’s note: Some of the language used in Robinson and Shockley seems to suggest that a court could
look at the actual evidence introduced in applying the elements test. However, the California Supreme Court
in those cases did not actually look at what evidence was presented in deciding whether the greater charges
could be reduced to the lesser included offense. To the contrary, it recognized that the evidence presented
might have justified the giving of the lesser instruction. However, it ignored this evidence in its analysis
because it was only considering what the jury would necessarily have to had to find based on the elements of
the offenses in the abstract. (Cf., People v. Landry (2016) 2 Cal.5th 52, 127 [“As a general rule, ‘[t]he
phrase “element of the offense” signifies an essential component of the legal definition of the crime,
considered in the abstract.’”].)
5.
What’s the accusatory pleading test all about?
Unlike the elements test, which can be determined by reference to the statutory elements alone, the
accusatory pleading test requires a review of the actual charging language in the case. If the charging
language either adds language to, or is different from, the statutory language, then the court must decide
whether, under the actual language of the charged offense, the charged offense could not be committed
without necessarily committing the lesser offense. If it turns out that the lesser offense must necessarily
be committed in order to commit the offense as charged in the accusatory pleading, then the accusatory
pleading test has been met. (See e.g., People v. Delgado (1983) 149 Cal.App.3d 208, 210-212.)
“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.” (People v. Reed
(2006) 38 Cal.4th 1224, 1227–1228.) Thus, where the accusatory language in the charging document
tracks the language of the statute without providing additional factual allegations, there is no need to use
the accusatory pleading test. (See People v. Shockley (2013) 58 Cal.4th 400, 404.)
In People v. Ortega (2015) 240 Cal.App.4th 956, the court expanded what could be considered under
the accusatory pleading test beyond the face of the charging document. (Id. at p. 967.) In Ortega, the
defendant was charged with a single act of forcible penetration by a foreign object in violation of Penal
Code section 289(a)(1)(A). At the preliminary examination, the evidence established the charge was
based on defendant using his finger to penetrate the victim’s vagina. The charging document did not
specify however that the foreign object was a finger; it just alleged penetration by a foreign object. On
appeal, although neither party requested an instruction on sexual battery in violation of Penal Code
15
section 243.4(a) as a lesser included offense, defendant claimed he was entitled to such an instruction.
(Id. at pp. 965-966.) The appellate court held under the elements test, the latter was not a lesser
included of the former because a defendant could potentially violate the forcible sexual penetration
statute without necessarily touching the victim. (Id. at p. 967.) Moreover, the appellate court
recognized that, on its face, the language of the charging document (which tracked the statutory
language) did not render sexual battery a lesser included offense either. Nevertheless, the appellate
court held that “[d]ue 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,
the preliminary hearing testimony identified defendant’s fingers as the only object supporting the
forcible sexual penetration charge.” (Id. at p. 967.) The court reasoned that, under modern charging
practices, the preliminary examination both provides notice of the actual charges and binds the
prosecution to proving at trial what charges were proved at the preliminary hearing. Since the
“prosecutor was bound by the preliminary hearing testimony to prove that defendant digitally
penetrated [the victim’s] vagina . . . , felony sexual battery was necessarily a lesser included offense of
forcible sexual penetration and it would be unjust to allow the prosecutor, by controlling the language in
the charging document, to also control whether the jury considers that lesser offense.” (Id. at p. 970.)
Editor’s note: Expect the expanded accusatory pleading test adopted in Ortega to attract new litigation
like manure attract flies. When it does, prosecutors should be sure to point out the expanded test is limited to
the circumstances existing in Ortega, i.e., where the evidence at the preliminary examination supports a
single factual theory of guilt. If there are alternative factual theories of guilt, then considering the preliminary
examination transcript to assess what conduct the prosecutor could have charged or what theories the
prosecution could have proceeded upon, but did not, would limit prosecutorial discretion “to determine whom
to charge with public offenses and what charges to bring” in a manner that violates the separation of powers as recognized in People v. Birks (1998) 19 Cal.4th 108, 134-136.
A.
Should you use the accusatory pleading test in deciding whether
multiple convictions can stand?
A defendant may not be convicted of multiple charged offenses if one of the charged offenses is a lesser
included offense of another charged offense. (People v. Medina (2007) 41 Cal.4th 685,702.)
However, in determining whether a charged offense is a lesser included offense of another charged
offense, the accusatory pleading test should not be used. A court should only prohibit multiple
convictions if the statutory elements of one offense make it a necessarily lesser included offense of
another offense. (People v. Reed (2006) 38 Cal.4th 1224, 1230-1231.) The rationale for this
interpretation is that the accusatory pleading test arose in order to ensure that defendants received
notice of what uncharged crimes they could be convicted of. However, concerns about notice are
irrelevant when both offenses are separately charged. (Id. at p. 1230.)
16
It remains an open question whether the observation made by the California Supreme Court in People
v. Montoya (2004) 33 Cal.4th 1031 at p. 1036, fn. 5 (i.e., that it might look askance at an attempt by
the prosecution to deliberately omit information from the allegations of the greater offense in order to
avoid including the facts necessary for the lesser included offense and thereby obtain multiple
convictions) is still a concern in light of the holding in Reed that only the statutory elements test is used
in assessing whether multiple convictions may stand.
In People v. Izaguirre (2007) 42 Cal.4th 126, the California Supreme Court held that the rule
announced in Reed (i.e., that courts should only use the elements test in assessing whether multiple
convictions are barred) is not affected by the United States Supreme Court decision in Apprendi v.
New Jersey (2000) 530 U.S. 466. (Izaguirre at p. 134.)
B.
Should you use the accusatory pleading test in deciding whether a
conviction on one offense bars a subsequent prosecution on
another offense?
“The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I,
section 15, of the California Constitution provide that a person may not be twice placed ‘in jeopardy’ for
the ‘same offense.’” (People v. Anderson (2009) 47 Cal.4th 92, 103.) “The double jeopardy bar
protects against a second prosecution for the same offense following an acquittal or conviction, and also
protects against multiple punishment for the same offense.” (Id. at pp. 103-104.) “Although some
differences in application arise, both federal and California law generally treat greater and lesser
included offenses as the ‘same offense’ for purposes of double jeopardy.” (People v. Anderson
(2009) 47 Cal.4th 92, 104, emphasis added by IPG.)
Penal Code Section 1023 (which is the state statutory double jeopardy bar) provides: “When the
defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading,
the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such
accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included
therein, of which he might have been convicted under that accusatory pleading.” (Emphasis added by
IPG.)
The accusatory pleading test should not be used in deciding whether double jeopardy or Penal Code
section 1023 bars a subsequent prosecution. (People v. Herrera (2006) 136 Cal.App.4th 1191, 11981200; People v. Scott (2000) 83 Cal.App.4th 784, 796.) Thus, while conviction on a lesser included
offense will bar a subsequent prosecution on a greater offense and vice versa (see People v. Kelley
(1997) 52 Cal.App.4th 568, 576), whether a conviction is a lesser included offense is decided in this
context using only the elements test. (People v. Herrera (2006) 136 Cal.App.4th 1191, 1198-1200;
People v. Scott (2000) 83 Cal.App.4th 784, 796.)
17
C.
Be aware that while it is standard practice to charge a violation of a
statute by alleging all the different ways in can be violated (in the
conjunctive) even though only it was only violated in one way,
courts may view the conjunctive charging literally for purposes of
applying the accusatory pleading test.
When a crime can be committed in more than one way, it is standard practice to allege in the conjunctive
that it was committed in every way. (See People v. Moussabeck (2007) 157 Cal.App.4th 975, 981;
People v. Lopez (2005) 129 Cal.App.4th 1508, 1532-1533.) As pointed out in the concurring opinion of
Justice Corrigan in the case of People v. Smith (2013) 57 Cal.4th 232, “[w]hen a statute such as Penal
Code section 415 lists several acts in the disjunctive, any one of which constitutes an offense, the
complaint, in alleging more than one of such acts, should do so in the conjunctive to avoid uncertainty.
[Citations.] Merely because the complaint is phrased in the conjunctive, however, does not prevent a
trier of fact from convicting a defendant if the evidence proves only one of the alleged acts.” (Id. at p.
248 citing to In re Bushman (1970) 1 Cal.3d 767, 775.)
Thus, an accusatory pleading that tracks the conjunctive language of the statute should not result in
creating a lesser included offense that otherwise would not exist when there are multiple independent
ways of violating the statute. “In such cases only the statutory elements test is relevant in determining
if an uncharged crime is a lesser included offense of that charged.” (People v. Moussabeck (2007)
157 Cal.App.4th 975, 981 citing to People v. Lopez (2005) 129 Cal.App.4th 1508, 1533; see also
People v. Licas (2007) 41 Cal.4th 362, 366 [where allegations in information tracked statutory
language only elements test applied]; People v. Marquez (2007) 152 Cal.App.4th 1064, 1068
[defendant who was charged with attempted carjacking in violation of Penal Code section 215/664 was
not entitled to lesser included offense of grand theft even though the information alleged that defendant
“unlawfully attempted to take a motor vehicle . . . with the intent to permanently and temporarily
deprive” and even though if the information was read literally, attempted grand theft would have been a
lesser included offense under the accusatory pleading test - “because the conjunctive phrase
‘permanently and temporarily’ permitted proof of an intent either to permanently or temporarily deprive
the victim of possession.” emphasis added by IPG].)
However, the majority opinion in People v. Smith (2013) 57 Cal.4th 232 and several other appellate
courts in applying the “accusatory pleading test” have read conjunctive language in an accusatory
pleading in a literal fashion. And, thus, have found a trial court was required to instruct on a lesser
included offense that is really only a lesser included offense of one way in which the statute could be
violated - even when the prosecution only argued a single theory of guilt based on a different way.
(Smith at pp. 242-245; People v. Brown (2016) 245 Cal.App.4th 140, 153; People v. Tillotson
(2007) 157 Cal.App.4th 517, 540-541.)
18
In People v. Smith (2013) 57 Cal.4th 232, the defendant was charged with two counts violating Penal
Code section 69. Section 69 “sets forth two separate ways in which an offense can be committed. The
first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed
by law; the second is resisting by force or violence an officer in the performance of his or her duty.” (Id.
at p. 240.) The defendant requested that the jury be given an instruction allowing them to convict the
defendant of violating Penal Code section 148(a)(1), which makes it unlawful for a person to willfully
resist, delay, or obstruct any public officer, peace officer, or an emergency medical technician in the
discharge or attempt to discharge any duty of his or her office or employment. (Id. at pp. 238, 241.) The
Smith court stated that section 148(a)(1) would not be a lesser included offense if it simply applied the
elements test. This is because a defendant would only necessarily violate section 148(a)(1) by violating
section 69 in the second way; section 69 could be violated in the first way without necessary violating
section 148(a)(1). However, the majority held that since the amended information charged defendant
with both ways of violating section 69, under the accusatory pleading test, section 148(a)(1) was a lesser
included offense. (Id. at pp. 242-244.) In other words, it treated the conjunctive language in the
accusatory pleading as if the prosecution was required to prove both ways of violating section 69.
In People v. Brown (2016) 245 Cal.App.4th 140, the appellate court had to decide whether a
defendant was entitled to a lesser included instruction on simple assault (Pen. Code, § 240) where the
defendant was charged with violating Penal Code section 69. Like the court in People v. Smith (2013)
57 Cal.4th 232, the Brown court recognized the two different ways section 69 could be violated: by
attempting to deter an officer's lawful duty by violence or threat of violence, or alternatively, by
knowingly resisting an officer's execution of lawful duty by actually using force or violence. (Id. at p.
151.) The Brown court recognized that under the elements test, assault was not a lesser included
offense of section 69 because a “person can violate section 69 in the first way without necessarily
attempting to apply physical force.” (Id. at p. 151.) Moreover, the court acknowledged that the
prosecutor’s trial theory was that defendant committed the second type of section 69 violation. (Id. at p.
153.) However, the Brown court then observed that “the information was not so limited. It alleged that
[defendant] violated section 69 not just by attempting to deter or prevent the officer from performing his
duties (which can be accomplished without force), but also by knowingly resisting the officers with force
and violence.” (Ibid.) Ultimately, it concluded that since “the accusatory pleading used the conjunctive
to charge [the defendant] with both ways of violating section 69, and it is not possible to violate the
statute in the second way without committing an assault, . . . assault was necessarily a lesser included
offense of section 69 under the accusatory pleading test.” (Ibid, emphasis added by IPG.)
And, in People v. Tillotson (2007)157 Cal.App.4th 517, the defendant was charged with a violation of
Penal Code section 503(c)(1) which makes it a public offense if a person “[k]nowingly accesses and
without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer
system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud,
deceive, or extort, or (B) wrongfully control or obtain money, property, or data.” The Tillotson court
19
found that Penal Code section 503(c)(3), which makes it a public offense if a person “[k]nowingly and
without permission uses or causes to be used computer services[,]” was not a lesser included offense
under the elements test because a computer system or network can be destroyed without being used.
However, the Tillotson court went on to find that because the charging document, in alleging a
violation of section 503(c)(1) stated, “that defendant did knowingly and unlawfully access and without
permission alter, damage, delete, destroy, and otherwise use data, a computer, a computer system, and
a computer network belonging to E[quifax],” section 502(c)(1) was a lesser included offense under the
accusatory pleading test. (Id. at pp. 540-541.)
For a good discussion of why an accusatory pleading that uses the conjunctive (“and”) statutory language
to charge a defendant with a crime that can be violated in alternative ways should be treated as if the
accusatory pleading used the disjunctive (“or”) language, see the concurring opinion of Justice Corrigan
in People v. Smith (2013) 57 Cal.4th 232, 247-249.
However, since it is the majority opinion in Smith that lays down the rule, here is the bottom line:
“When the prosecution chooses to allege multiple ways of committing a greater offense in the accusatory
pleading, the defendant may be convicted of the greater offense on any theory alleged ([citation]),
including a theory that necessarily subsumes a lesser offense. The prosecution may, of course, choose to
file an accusatory pleading that does not allege the commission of a greater offense in a way that
necessarily subsumes a lesser offense. But so long as the prosecution has chosen to allege a way of
committing the greater offense that necessarily subsumes a lesser offense, and so long as there is
substantial evidence that the defendant committed the lesser offense without also committing the
greater, the trial court must instruct on the lesser included offense.” (Id. at p. 244.)
Editor’s note: Unfortunately, it is not entirely clear whether, under Smith, the prosecution can only avoid
the giving of a lesser included crime (when a defendant is charged with a statute that can be violated in
alternative ways) if the charging document completely omits reference to the alternative that includes the
lesser offense. Or whether it could be avoided simply by charging in the disjunctive. (See People v. Brown
(2016) 245 Cal.App.4th 140, 153 [“Because the accusatory pleading used the conjunctive to charge Brown
with both ways of violating section 69, and it is not possible to violate the statute in the second way without
committing an assault, we conclude that assault was necessarily a lesser included offense of section 69 under
the accusatory pleading test.”], emphasis added.) To be on the safe side, prosecutors should assume the
former when defendant is only guilty of the offense under only one of the different ways the statute can be
violated.
20
D.
Be aware that when applying the accusatory pleading test, it is not
always clear whether there really are disjunctive elements, e.g., the
crime of robbery
Sometimes it is not easy to determine whether a statute actually involves distinctly alternative means of
committing an offense. For example, Penal Code section 211 states that robbery can be “accomplished
by means of force or fear.” The California Supreme Court has held that an assault is not a lesser
included offense of robbery because a robbery can be committed by “force or fear” (§ 211, italics added),
and a robbery committed by fear does not involve the use of force, which is an element of the crime of
assault. (See People v. O'Malley (2016) 62 Cal.4th 944, 984; People v. Wolcott (1983) 34 Cal.3d
92, 99-100.)
However, if robbery is charged in language asserting defendant used fear and force, then an issue may
arise whether assault is a lesser included offense of robbery under the accusatory pleading test. (See
People v. O'Malley (2016) 62 Cal.4th 944, 984 [noting the issue but declining to address it because
there was no substantial evidence of an assault as a lesser included offense in any event]; People v.
Parson (2008) 44 Cal.4th 332, 349-350 [same]; People v. Sakarias (2000) 22 Cal.4th 596, 622, fn.
4 [same]; see also People v. Bacigalupo (1991) 1 Cal.4th 103, 127 [assuming assault was lesser
included offense of robbery where accusatory language stated defendant used force and fear, but
rejecting argument assault instruction should have been given on other grounds].)
In People v. Wright (1996) 52 Cal.App.4th 203, the defendant argued that, under the statutory
pleading test, he was entitled to an instruction on assault as a lesser included offense of robbery because
the charging language stated the crime of robbery was committed through force and fear. The Wright
court held that the definition of “force” for purposes of robbery is not synonymous with a “physical
corporeal assault.” Rather, the element of “force” is not “independent of fear.” (Id. at p. 210.) Force
can mean “such threat or display of physical aggression toward a person as reasonably inspires fear of
pain, bodily harm, or death.” (Id. at p. 211.) Since the element of force can essentially be satisfied by
evidence of fear, it is possible to commit a robbery by force without necessarily committing an assault.
(Ibid.) Consequently, under Wright, an assault is not a lesser included offense of robbery under the
“accusatory pleading” test - even when the pleading alleges a robbery by force and fear. Whether the
analysis in Wright will save a conviction where the accusatory pleading alleges “force and fear” and the
trial court rejects the giving of an instruction on assault as a lesser included offense is a different
question. At least one unpublished (and one depublished case) has criticized Wright for conflating the
elements of force and fear. (See People v. Phillips [unpublished] 2004 WL 352670, *6; People v.
Fuentes (2004) 10 Cal.Rptr.3d 167, 171 [depublished]; see also People v. Winzer [unpublished 2007
WL 2433154, *6 [discussing issue without resolving it].)
21
E.
If the charging document uses language alleging alternative ways of
violating a statute but the prosecution only proceeds under one of
those ways, is the defendant still entitled to lesser included
instructions that are only applicable under the way not proceeded
upon?
The issue of whether the defendant is entitled to lesser included offense instructions under the
accusatory pleading test when the charging document uses language that encompasses multiple ways of
violating a statute, but the prosecution only intends to and does proceed under a single way, is a tricky
one. This is the latest word from the California Supreme Court on the question:
“When the prosecution chooses to allege multiple ways of committing a greater offense in the accusatory
pleading, the defendant may be convicted of the greater offense on any theory alleged [citation],
including a theory that necessarily subsumes a lesser offense. The prosecution may, of course,
choose to file an accusatory pleading that does not allege the commission of a greater
offense in a way that necessarily subsumes a lesser offense. But so long as the prosecution
has chosen to allege a way of committing the greater offense that necessarily subsumes
a lesser offense, and so long as there is substantial evidence that the defendant committed the lesser
offense without also committing the greater, the trial court must instruct on the lesser included offense.
This allows the jury to consider the full range of possible verdicts supported by the evidence and thereby
calibrate a defendant’s culpability to the facts proven beyond a reasonable doubt.” (People v. Smith
(2013) 57 Cal.4th 232, 244 [discussed at length in this IPG, question 4-C at pp. 18-20]; accord People
v. Banks (2014) 59 Cal.4th 1113, 1160, emphasis added by IPG.)
The language in People v. Smith (2013) 57 Cal.4th 232 (“The prosecution may, of course, choose to file
an accusatory pleading that does not allege the commission of a greater offense in a way that necessarily
subsumes a lesser offense”) strongly suggests that by using charging language that makes it clear the
defendant is only charged with violating a statute in one particular way, no instruction on the alternative
way (including a lesser included instruction), need to be given. If this is the logical takeaway, what
would be the point in inserting that language in the midst of a discussion on when lesser included
offenses need to be given.
However, where the charging document does not make it clear the prosecution is proceeding on only one
of the ways the statute may be violated, courts have applied the accusatory pleading test to require lesser
included instructions if justified under any way the statute may be violated. The issue often raises its
ugly head in the context of a murder case where the prosecution alleges a first-degree murder in the
generic language of the statute. An accusatory pleading charging a defendant with first degree murder
allows the prosecutor to proceed on either a premeditated, deliberate malice murder or a felony murder.
(See People v. Hughes (2002) 27 Cal.4th 287, 369 [“an accusatory pleading charging a defendant
22
with murder need not specify the theory of murder upon which the prosecution intends to rely.”].) If
neither or both are specified, i.e., the generic language of the charging document has not been modified
to reflect that the sole basis under which the jury could convict the defendant of first-degree murder is
for a felony murder, there will likely be problems regardless of whether the prosecution proceeds solely
on a theory of felony-murder – so long as there is substantial evidence supporting the alternative theory.
For example, in People v. Banks (2014) 59 Cal.4th 1113, there was strong evidence that defendant
killed a victim while attempting the rob the victim. The evidence showed that defendant, while wearing
a shirt wrapped around his head to conceal his identity, walked up to the victim as the victim stood at an
ATM. It appears there was some discussion (perhaps an argument) between the defendant and the
victim before the victim turned toward the ATM and was shot by the defendant. There was no evidence
that defendant took any property or money from the victim after the shooting (Id. at pp. 1127-1130,
1161.) The charging document alleged that defendant “did willfully, unlawfully, and with malice
aforethought murder [the victim], a human being.” It further alleged that the murder occurred while
defendant “was engaged in the commission of the crime of attempted robbery, within the meaning of
Penal Code section 190.2(a)(17).” (Id. at p. 1157.) When discussing the jury instructions, the
prosecution informed the court that it intended to proceed only on a felony-murder theory with respect
to the murder instead of arguing a first-degree premeditated malice murder theory as well. (Id. at p.
1157, emphasis added by IPG.) The Banks court held that “under the accusatory pleading test, second
degree murder was plainly a lesser included offense of felony murder as charged . . .” (Id. at p. 1160,
emphasis in original.) Moreover, the Banks court found there was sufficient evidence of second degree
murder “to obligate the trial court to instruct on second degree murder.” (Ibid.) Albeit, the error was
held to be harmless because there was “no reasonable probability that the evidence of an argument
between defendant and [the victim], minimal as it was, would have led the jury, had it been properly
instructed, to conclude that defendant shot [the victim] at the ATM out of malice unrelated to any
robbery.” (Id. at p. 1161.) Significantly, the fact that the prosecution had only proceeded under a theory
of felony murder (at least during closing argument) was ignored by the Banks court in reaching its
conclusion that an instruction on second degree murder should have been given.
In People v. Anderson (2006) 141 Cal.App.4th 430, a victim was found strangled to death in his hotel
room. One of the victim’s pocket was pulled through a tear in his pants. The defendant was convicted of
first degree murder based primarily on her interview with the police. In the interview, the defendant
claimed she was with a companion at the victim’s room. She said the victim, who had purchased some
cocaine from the defendant’s companion, because upset over the quality of the cocaine and over the fact
the victim refused to sleep with him in exchange for money. The defendant claimed the victim began
attacking the defendant’s companion and a struggle ensued. While the victim and the companion were
on the floor, the companion yelled at the defendant to “[g]et the money” from the victim. The victim
tried but could not retract the money from the victim’s pocket. By this time, the victim was no longer
struggling. The defendant then got a knife, cut the pocket, and removed his money. She said she was
23
not aware the victim was dead and said he was still breathing when her companion finally let go of the
victim – albeit the victim was not moving or speaking. (Id. at pp. 436-437.) The information did not
mention felony-murder. Rather, is alleged “MURDER, a violation of section 187[, subdivision] (a) of the
PENAL CODE of California, in that between October 11, 2001 and October 12, 2001 ... said defendant(s)
did unlawfully, and with malice aforethought, murder BARRY GONZALES, a human being.” (Id. at pp.
444-445.) After evidence was presented, specific language was added by oral amendment to the
charging document to reflect a charge of felony murder – although the record was unclear whether that
language was supposed to supplement or supplant the existing charging document. The trial court then
declined to instruct on the lesser included offenses of second degree murder and voluntary
manslaughter. The appellate court held this was error, regardless of whether the original charge of
murder remained, because “even if felony murder had been intended to replace the existing charge, an
amendment made at the close of evidence does not satisfy the notice function that underpins the duty of
sua sponte instruction. (Id. at pp. 445-456.)
In People v. Campbell (2015) 233 Cal.App.4th 148, the defendants were charged with “a violation of
Penal Code section 187, subdivision (a), a felony, in that . . . he did wilfully, unlawfully, and with
deliberation, premeditation, and malice aforethought murder SILVESTER LEYVA, a human being.”
(Id. at p. 158.) However, at the close of the prosecution’s case (and again before the jury was instructed)
the prosecutor indicated he was not pursuing a malice theory, but rather relying on the theory of felony
murder. (Id. at p. 159, fn. 3.) As a result, the jury was not instructed on the lesser included offenses of a
deliberate, premeditated, malice murder. (Id. at p. 157.) On appeal, the defendants contended he was
entitled to the lesser included offenses of second degree murder, voluntary manslaughter based on
imperfect self-defense, and involuntary manslaughter. (Ibid.) Relying on Anderson and Smith, the
Campbell court held that “[w]hile the prosecutor was free to try the case on a theory of felony murder,
defendants were nonetheless legally entitled under the accusatory pleading test to jury instructions on
lesser included offenses of first degree malice murder, provided there is substantial evidence to support
the commission of the lesser offenses but not the greater.” (Id. at p. 160; see also People v. Jenkins
(2006) 140 Cal.App.4th 805, 817-818 [finding, under accusatory pleading test, second degree murder
based upon malice was a necessarily included offense of the charged offense of first degree murder
(alleged as murder with malice aforethought) even though prosecutor proceeded solely on felony murder
theory].)
If the language of the charging document is generic so it is clear from the start that felony murder is the
only theory of liability, a court may be more inclined to preclude lesser included instructions on second
degree murder or voluntary manslaughter. In People v. Huynh (2012) 212 Cal.App.4th 285, the
charging document alleged defendant “did unlawfully murder [the victim], a human being, in violation
of PENAL CODE SECTION 187(a).” (Id. at p. 312.) No mention the prosecution was proceeding on a
felony murder theory but two special circumstances were alleged; one of which stated “that the murder
of [the victim] was committed by defendant . . . while the said defendant was engaged in the commission
24
and attempted commission of the crime of Oral Copulation, in violation of Penal Code section 288a,
within the meaning of PENAL CODE SECTION 190.2(a)(17)” and one of which stated: “it is further
alleged that the murder of [the victim] was committed by defendant . . . while the said defendant was
engaged in the commission and attempted commission of the crime of Sodomy, in violation of Penal
Code section 286, within the meaning of PENAL CODE SECTION 190.2(a)(17).” (Ibid.)
“Notwithstanding the reference to section 187 in the information, the prosecution's case was tried strictly
on a first-degree felony-murder theory” and the fact the prosecution was proceeding on the sole theory
of felony murder was made known when the case was first assigned for trial. (Ibid.) Relying on
People v. Anderson (2006) 141 Cal.App.4th 430, the defendant claimed he was “entitled to
instruction on second degree murder because he was charged under section 187.” (Huynh at p. 312.)
The Huynh court rejected defendant’s claim, holding no instruction on second-degree murder was
necessary. The Huynh court distinguished Anderson on several grounds: (i) unlike in Anderson, the
prosecution in Huynh was based solely on the felony-murder rule; (ii) unlike in Anderson, the
charging document in Huynh did not specifically include a reference to “malice aforethought” in the
language; (iii) the defendant in Anderson was “not charged at any point with the predicate felony to
support the felony-murder theory while [the defendant] in Huynh was charged with the predicate
felonies of oral copulation and sodomy”; (iv) unlike in Anderson, in Huynh, there were special
circumstances attached to the murder count that provided him with at least implicit notice that the
prosecution was proceeding under a felony-murder theory; and (iv) unlike in Anderson, the defendant
in Huynh “knew from the get-go that his case was being prosecuted only on a felony-murder theory
because the prosecution made the theory of the case clear well in advance of the trial.” (Id. at p. 313
[and rejecting the argument that since all felonies permitting a first-degree felony murder conviction are
either “inherently dangerous to life or pose a significant prospect of violence,” second degree implied
murder is a lesser included offense of first degree felony murder].)
*Editor’s note: In People v. Campbell (2015) 233 Cal.App.4th 148, the court attempted to distinguish
the case of Huynh by pointing out (i) “that the rationale of Huynh may to some extent have been
undermined by [People v. Smith (2013) 57 Cal.4th 232]”; (ii) the accusatory pleading in Campbell, unlike
in Huynh, alleged malice aforethought; and (iii) “the court in Huynh relied heavily on the fact that the
prosecution had made it clear from the very beginning of the case that it was relying solely on felony murder”
which was not done by the prosecution in Campbell. (Id. at p. 162.)
So, what can a prosecutor do to avoid the giving of lesser included instructions on
second-degree murder and voluntary manslaughter in case where felony-murder is
going to be the sole theory of prosecution?
Setting aside the question of whether, in a murder case, the prosecution wants to put all their eggs in the
felony-murder basket, the language in Smith discussed in this IPG, question 4-C at p. 22 indicates the
prosecution can prevent the giving of instructions on lesser included offenses of a first-degree malice
25
murder if the charging document expressly specifies that felony murder is the only basis for a firstdegree murder conviction.
However, this does not entirely resolve the issue, because it remains an open question whether the
defense would be entitled to instructions on a second-degree murder as a lesser included of a felony
murder itself. The California Supreme Court has expressly declined to decide “whether second degree
murder is a lesser included offense when, as here, the prosecution proceeds solely on the theory that the
killing is first degree murder under the felony-murder rule and does not argue that the killing is first
degree murder because it is willful, deliberate, and premeditated.” (People v. Romero (2008) 44
Cal.4th 386, 402; People v. Valdez (2004) 32 Cal.4th 73, 114-115, fn. 17; see also People v. Banks
(2014) 59 Cal.4th 1113, 1160 [declining to reach question whether second degree murder is a lesser
included offense of felony murder under the statutory elements test]; People v. Wilson (2008) 43
Cal.4th 1, 16, fn. 5 [“We have concluded that first degree premeditated murder is not a lesser included
offense of first degree felony murder, but have left open the question as to second degree murder.”].)
When the California Supreme Court does get around to deciding the question, it should rule that seconddegree murder cannot be a lesser included offenses of felony murder in light of the general rule that is
applied when determining whether an offense is a lesser included offense: an offense is only a lesser
offense of the greater if “the greater cannot be committed without also committing the lesser.” (People
v. Birks (1998) 19 Cal.4th 108, 117.) Second-degree murder requires the state of mind of malice and a
felony murder (the greater offense) can be committed without malice - the mental state necessary to
commit the underlying felony is all that is required for a felony murder. (See People v. Cavitt (2004)
33 Cal.4th 187, 197; People v. Balderas (1985) 41 Cal.3d 144, 197 [and noting that since malice is the
mental state distinguishing murder from voluntary manslaughter, “neither ‘heat of passion’ nor
provocation can ever reduce a murder properly based on the felony-murder doctrine to voluntary
manslaughter, and an instruction to that effect would be error.”]; see also People v. Castaneda
(2011) 51 Cal.4th 1292, 1328–1329 [implicitly criticizing defendant’s claim that second degree murder is
a lesser included offense of first degree felony murder by noting defendant’s failure to address “how
second degree murder, which requires malice, can be a lesser included offense of first degree felony
murder, which does not require malice”].)
Outside the context of a murder prosecution, the language in Smith at p. 244 (“The prosecution
may, of course, choose to file an accusatory pleading that does not allege the commission of a greater
offense in a way that necessarily subsumes a lesser offense.”) should suffice to prevent the giving of
lesser included offenses when it comes to crimes with multiple ways of being violated if the charging
document makes it clear the prosecution is only proceeding under one of those ways.
26
6.
Do you consider what the actual evidence has shown in
determining whether an offense is a lesser included offense
under either the statutory elements or accusatory pleading
test?
The determination of whether an offense is lesser included offense is made from either the wording of
the accusatory pleading or the statutory language, and not from the evidence adduced at trial. (People
v. Ortega (1998) 19 Cal.4th 686, 698.) Even under the rule adopted in People v. Smith (2013) 57
Cal.4th 232 (requiring a sua sponte instruction on a lesser offense that is necessarily included in one way
of violating a charged statute when the prosecution elects to charge the defendant with multiple ways of
violating the statute), the duty to instruct on lesser included offenses “does not require or depend on an
examination of the evidence adduced at trial. The trial court need only examine the accusatory
pleading.” (Id. at p. 244.)
To constitute a lesser and necessarily included offense it must be of such a nature that, as a matter of law
and considered in the abstract, the greater crime cannot be committed without necessarily
committing the other offense. (People v. Steele (2000) 83 Cal.App.4th 212, 217-218.) It does not
make a difference that the evidence at trial might also establish guilt of another and lesser crime than
that charged. (People v. Bragg (2008) 161 Cal.App.4th 1385, 1399; People v. Benjamin (1975) 52
Cal.App.3d 63, 71.) This holds true regardless of whether the accusatory pleading test or elements test is
used. (See People v. Burnell (2005) 132 Cal.App.4th 938, 945; cf., People v. Ortega (2015) 240
C.A.4th 956, 967 [sexual battery was lesser included offense of forcible sexual penetration under
expanded accusatory pleading test, where preliminary hearing testimony identified defendant’s fingers
as only object supporting forcible sexual penetration charge].)
7.
In assessing whether an offense is a lesser included offense,
do you consider enhancements or prior convictions?
Sentencing enhancements are not elements of the offense and cannot be considered for purposes of
determining whether to instruct on an uncharged lesser included offense under either the elements or
the accusatory pleading test. (People v. Wolcott (1983) 34 Cal.3d 92, 100-101 [and cases cited
therein]; People v. Sloan (2007) 42 Cal.4th 110, 119, fn. 4; People v. Boswell (2016) 4 Cal.App.5th
55, 59; People v. Woods (2015) 241 Cal.App.4th 461, 480; People v. Ybarra (2008) 166 Cal.App.4th
1069, 1095; People v. Bragg (2008) 161 Cal.App.4th 1385, 1398-1399; People v. Quintero (2006)
135 Cal.App.4th 1152, 1169; People v. Ausbie (2004) 123 Cal.App.4th 855, 863, fn. 5; see also People
v. Alarcon (2012) 210 Cal.App.4th 432, 436 [the principle that enhancements are not considered in
assessing whether there is a duty to give lesser included instructions was not “overruled sub rosa” by
Apprendi v. New Jersey (2000) 530 U.S. 466 and People v. Seel (2004) 34 Cal.4th 535 because
those cases only establish that an enhancement allegation specifies an element of a greater crime for
certain purposes not encompassing the accusatory pleading test].)
27
Enhancements are also not considered in applying the elements test or the accusatory pleading test to
determine what is a lesser included offense when the question is whether a defendant may be convicted
of multiple charged offenses or is barred by the double jeopardy clause. (People v. Izaguirre (2007)
42 Cal.4th 126, 131-134; People v. Sloan (2007) 42 Cal.4th 110, 113-114.)
Prior convictions which simply allow for an enhanced sentence or elevate a misdemeanor offense to a
felony are not considered elements of the offense in determining the nature of a crime as a lesser
included offense. (See e.g. People v. Padilla (2002) 98 Cal.App.4th 127, 138 [former Pen. Code §
12025(b)(1) allowing for elevation of former Pen. Code § 12025(a) to felony is only a sentencing factor,
not an element]; cf., People v. Padilla (2002) 98 Cal.App.4th 127, 138 [conviction of felony is element
of former Pen. Code § 12021, now § 29800(a)(1)].)
*Editor’s note: Enhancements may, however, be lesser included enhancements of other enhancements.
(See this IPG, question 17 at p. 60.)
8.
In assessing whether an offense is a lesser included offense,
do you consider penalty provisions?
“Conceptually, a penalty provision is an appendage that attaches to an offense and, if proven, prescribes
additional punishment for the crime.” (People v. Anderson (2009) 47 Cal.4th 92, 115.) “In contrast
to greater and lesser degrees of an offense, a penalty provision prescribes an added penalty to be
imposed when the offense is committed under specified circumstances.” (People v. Bright (1996) 12
Cal.4th 652, 661, emphasis added by IPG.) “[T]he penalty provisions set forth in our state’s Penal Code
differ in significant ways from both greater and lesser included offenses and greater and lesser
degrees of the same offense.” (People v. Anderson (2009) 47 Cal.4th 92, 115; see also People v.
Sedillo (2015) 235 Cal.App.4th 1037, 1049 [“A penalty provision is separate from the underlying
offense and does not set forth elements of the offense or a greater degree of the offense
charged.”], emphasis added by IPG.)
Editor’s note: Penalty provisions are sometimes referred to as “alternative sentencing schemes”. (See
People v. Woods (2015) 241 Cal.App.4th 461, 479, fn. 14.)
A penalty provision is a different kind of creature than an enhancement. “[A]n enhancement adds an
additional term of imprisonment to the base term, while a penalty provision specifies an increased base
term for the substantive crime when specified circumstances are present. (People v. Garcia (1998) 63
Cal.App.4th 820, 828 citing to People v. Bright (1996) 12 Cal.4th 652, 656, fn. 2.)
Nevertheless, enhancements and penalty have more in common with each other than with an “offense,”
which is “a collection of specific factual elements that the Legislature has chosen to define as a crime.”
(People v. Anderson (2009) 47 Cal.4th 92, 101; see also People v. Woods (2015) 241 Cal.App.4th
461, 480 [“the alternative sentencing scheme of the One Strike law is similar to an ‘enhancement’ in
28
ways that are significant for purposes of making determinations as to whether an instruction on a lesser
included offense is required”].) Under California law, neither a sentencing enhancement nor a penalty
allegation is a complete offense in itself. Both are “separate from the underlying offense and do[] not set
forth elements of the offense or a greater degree of the offense charged.” (People v. Anderson (2009)
47 Cal.4th 92, 115.) Similarly, a jury does not decide the truth of either a penalty provision or an
enhancement until they have first reached a verdict on the substantive offense charged. (See People v.
Woods (2015) 241 Cal.App.4th 461, 481-482; People v. Bright (1996) 12 Cal.4th 652, 661; People v.
Wims (1995) 10 Cal.4th 293, 307.)
In light of these considerations, the court in People v. Boswell (2016) 4 Cal.App.5th 55, refused to find
that a special circumstance (which imposes an increased penalty when the crime of murder is committed
under specified circumstances) could be considered in deciding whether an offense was a lesser included
offense. Specifically, in Boswell, the defendant, who was convicted of both burglary and murder with a
burglary special circumstance, claimed he was entitled to have his burglary conviction vacated because it
was a lesser included offense of the burglary special circumstance attached to his murder conviction.
The Boswell court rejected this argument, noting that “[m]urder and burglary are two separate crimes
that contain different elements” and that “[t]he statutory elements of burglary are not necessarily
included in the statutory elements of murder.” (Id. at p. 60.) The Boswell court observed that “[t]he
burglary special circumstance is not an element of murder; rather, it functions similar to a sentencing
enhancement to increase [the defendant’s] penalty for the murder.” (Ibid.) Thus, the burglary special
circumstance was deemed “irrelevant to the determination under the statutory elements test of whether
[the defendant’s] burglary charge [was] a lesser included offense of his murder charge.” (Ibid;
Similarly, in People v. Woods (2015) 241 Cal.App.4th 461, the court declined to consider allegations
made pursuant to the One Strike law (Pen. Code, 667.61) in determining whether statutory rape in
violation of Penal Code section 261.5 was a lesser included offense of forcible rape in violation of Penal
Code section 261(a)(2) because, in relevant respects, the One Strike law alternative sentencing
scheme/penalty provision “operated in the same way that the enhancement allegation operated in”
People v. Wolcott (1983) 34 Cal.3d 92, which had held the enhancement could not be considered in
deciding whether a crime was a lesser included offense under the accusatory pleading test. (Woods at
pp. 481-482; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1049 [finding that attempted murder is
not a lesser included offense of attempted premeditated murder because attempted murder and
premeditated attempted murder are the same offense - albeit also finding jury’s failure to find attempted
premeditated murder required reversal of attempted murder convictions on grounds they were timebarred].)
In People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, the court observed that a special
circumstance is a penalty enhancement, not an element of the crime of murder; and held “[p]enalty
enhancements are not part of the greater or lesser offense analysis. (Id. at p. 1231.)
29
9.
Can a lesser included offense carry a greater penalty than the
greater offense?
A lesser-included offense is not necessarily less serious than a greater offense; it simply has fewer
statutory elements. (See People v. Wilkinson (2004) 33 Cal.4th 821, 839 [not irrational to punish
lesser-included offense more severely than greater offense]; but see People v. Milward (2011) 52
Cal.4th 580, 588 [parenthetically noting that Penal Code Ҥ 4500 is the greater offense because the
minimum sentence for a defendant who violates that section is a term of life imprisonment without the
possibility of parole for nine years, whereas the maximum sentence for a violation of § 245's subd. (a)(1)
is a four-year prison term” -albeit in context of case where section 4500 also had additional elements
than lesser offense of section 245].)
10. When is a court required to instruct the jury on a necessarily
lesser included offense sua sponte?
A trial court must instruct on a lesser included offense, whether or not such instruction is requested,
whenever there is evidence sufficient to deserve consideration by the jury, i.e., evidence from
which a reasonable jury composed of reasonable persons could have concluded a lesser offense, rather
than the charged crime, was committed. (People v. Marshall (1996) 13 Cal.4th 799, 846, emphasis
added.) This duty is not satisfied just because the court instructs “on the theory of the offense most
consistent with the evidence and the line of defense pursued at trial.” (People v. Anderson (2006) 141
Cal.App.4th 430, 442 citing to People v. Breverman (1998) 19 Cal.4th 142, 153.)
The obligation to give instructions on lesser included offenses when substantial evidence supports the
giving of those instructions derives from the general rule that even in the absence of a request, the trial
court must instruct on the general principles of law (i.e., those “principles closely and openly connected
with the facts before the court, and which are necessary for the jury’s understanding of the case”)
relevant to the issues raised by the evidence. (People v. Banks (2014) 59 Cal.4th 1113, 1159; People v.
Valdez (2004) 32 Cal.4th 73, 115.)
An instruction on a lesser included offense, however, is only required where there is “substantial
evidence” from which a rational jury could conclude that the defendant committed the lesser offense but
is not guilty of the greater offense. (People v. DePriest (2007) 42 Cal.4th 1, 50; People v.
Breverman (1998) 19 Cal.4th 142, 162; People v. Lopez (1998) 19 Cal.4th 282, 288.)
As pointed out in People v. Barton (1995) 12 Cal.4th 186, “the trial court need not instruct on a lesser
included offense whenever any evidence, no matter how weak, is presented to support an instruction,
but only when the evidence is substantial enough to merit consideration by the jury.
(emphasis added.) (Id. at p. 195, fn. 4; accord People v. Waidla (2000) 22 Cal.4th 690, 733 [no sua
sponte duty to instruct on lesser uncharged offense unless there is “substantial evidence”].
30
“Substantial evidence in this context is evidence from which a reasonable jury could conclude that the
defendant committed the lesser, but not the greater, offense....”. (People v. Shockley (2013) 58
Cal.4th 400, 403–404; see also People v. Blair (2005) 36 Cal.4th 686, 745 [describing “substantial
evidence” as “evidence from which a jury composed of reasonable persons could conclude that the facts
underlying the particular instruction exist”]; People v. Halvorsen (2007) 42 Cal.4th 379, 414
[“substantial evidence” is evidence “which a reasonable jury could find persuasive”]; Hopper v. Evans
(1982) 456 U.S. 605, 611 [due process only requires instruction on lesser included offenses when
evidence warrants such instruction].)
“[T]he testimony of a single witness, including that of a defendant, may suffice to require lesser included
offense instructions.” (People v. Wyatt (2012) 55 Cal.4th 694, 698 citing to People v. Lewis (2001)
25 Cal.4th 610, 646.)
However, “if there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that
the offense was less than that charged, such instructions [on lesser included offenses] shall not be given.”
(People v. Friend (2009) 47 Cal.4th 1, 51–52; People v. Abilez (2007) 41 Cal.4th 472, 514; People
v. Kraft (2000) 23 Cal.4th 978, 1063.)
“Speculation is an insufficient basis upon which to require the giving of an instruction on a lesser
offense.” (People v. Castaneda (2011) 51 Cal.4th 1292, 1331; People v. Wilson (1992) 3 Cal.4th
926, 941; see also People v. Gray (2005) 37 Cal.4th 168, 219 [“mere speculation the crime was less
than that charged is insufficient to trigger the duty to instruct”].) Thus, “a speculative inference that
depends on the jury ignoring substantial contrary evidence is not enough to require the court to instruct
on a lesser included offense.” (People v. Harris (2008) 43 Cal.4th 1269,1298, fn. 10.)
11. In assessing whether there is “substantial evidence,” are
there any guidelines?
The question of whether the evidence presented to the jury constitutes “substantial evidence” will always
be decided on facts unique to the individual case. However, there are few general guidelines to consider
in every case:
Guideline #1: Don’t take into account the “credibility” of that evidence.
The determination whether sufficient evidence supports the instruction must be made without reference
to the credibility of that evidence. (People v. Marshall (1996) 13 Cal.4th 799, 846; see also People
v. Mayberry (1975) 15 Cal.3d 143, 151 [“the fact that the evidence may not be of a character to inspire
belief does not authorize the refusal of an instruction based thereon”]; People v. Mejia-Lenares
(2006) 135 Cal.App.4th 1437, 1446 [“Even if it does not inspire confidence, a defendant’s testimony
constitutes substantial evidence”].)
31
Guideline #2: Substantial evidence must support each element of the lesser included
offense.
There must be substantial evidence of each element of the offense. For example, voluntary
manslaughter is often a lesser included offense of murder but unless there is evidence that adequate
provocation existed and the defendant’s reason was obscured by that passion or that the defendant had
an actual belief in the need for self-defense, the instruction is not necessary. (See e.g. People v.
Sinclair (1998) 64 Cal.App.4th 1012, 1015 [and cases cited therein].)
Guideline #3: Ties go to the defendant.
Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the
accused considering that appellate courts will review the evidentiary support for an instruction “in the
light most favorable to the defendant” and will “resolve doubts as to the sufficiency of the evidence to
warrant instructions ‘in favor of the accused.’” (See People v. Wright (2015) 242 Cal.App.4th 1461,
1483 citing to People v. Flannel (1979) 25 Cal.3d 668, 685, fn. 12 and People v. Millbrook (2014)
222 Cal.App.4th 1122, 1137; see also People v. Wilson (1967) 66 Cal.2d 749, 763.)
12. What constitutes “substantial evidence” to give lesser
included offense instructions in murder cases?
IPG does not have the wherewithal to survey what constitutes substantial evidence to give lesser
included offenses for every different kind of crime. However, because challenges based on failure to give
lesser included instructions in murder cases are particularly prevalent, we will attempt to provide some
case summaries that should help prosecutors get a better sense of when there exists “substantial
evidence” to support the giving of the lesser included offenses of murder. (See also this IPG, section II
at pp. 105-108 discussing what offenses are lesser included offenses in murder cases].)
A.
What constitutes substantial evidence for giving a second-degree
malice murder instruction as a lesser included offense of first
degree (malice) murder?
“Second degree murder is the unlawful killing of a human being with malice, but without the additional
elements ... that would support a conviction of first degree murder.” (People v. Taylor (2010) 48
Cal.4th 574, 623.) Second degree (express or implied malice) murder can be a lesser included offense of
a first degree (malice) murder. (People v. Taylor (2010) 48 Cal.4th 574, 623; People v. Bradford
(1997) 15 Cal.4th 1229, 1345; People v. Cooper (1991) 53 Cal.3d 771, 827.)
“Provocation of a kind, to a degree, and under circumstances insufficient to fully negative or raise a
reasonable doubt as to the idea of both premeditation and malice (thereby reducing the offense to
manslaughter) might nevertheless be adequate to negative or raise a reasonable doubt as to the idea of
32
premeditation or deliberation, leaving the homicide as murder of the second degree; i.e., an unlawful
killing perpetrated with malice aforethought but without premeditation and deliberation.” (People v.
Thomas (1945) 25 Cal.2d 880, 903; People v. Carasi (2008) 44 Cal.4th 1263, 1306; People v.
Wickersham (1982) 32 Cal.3d 309, 329; People v. Valentine (1946) 28 Cal.2d 121, 132; People v.
Wright (2015) 242 Cal.App.4th 1461, 1494.)
However, “[p]rovocation cannot negate first degree murder by lying in wait.” (People v. Wright (2015)
242 Cal.App.4th 1461, 1496 citing to People v. Battle (2011) 198 Cal.App.4th 50, 75.)
Insubstantial Evidence
In People v. Landry (2016) 2 Cal.5th 52, a prison gang member, acting at the behest of a shot caller
who had ordered a hit on the victim (also an inmate), accompanied the shot caller as they approached
the victim who was seated at a card table. While standing behind the victim, the defendant fatally
stabbed the other prison inmate with a shank in the neck. Defendant later told a prison guard he killed
the victim. In a letter to another gang member, defendant stated that he had to work to earn this
murder, and that committing the murder would elevate his status with higher ranking gang members.
(Id. at pp. 60-63, 96.) Defendant argued he was entitled to an instruction on second degree implied
malice because he only used a knife, there was evidence that he and the victim were “having words” just
before defendant stabbed him, and the victim had previously threatened harm to defendant. The
Landry court held there was no obligation to give the lesser included instruction because there was no
substantial evidence that would support that defendant “intended only to commit an action that was
dangerous to human life, and did not intend to kill.” (Id. at pp. 96-97.)
In People v. Nunez (2013) 57 Cal.4th 1, the defendants were charged with first degree murder after
conducting a drive-by shooting of a couple, apparently for racially motivated and gang-related reasons.
(Id. at pp. 6-8.) The jury received instruction on an express malice second degree murder, but not an
implied malice second degree murder instruction. The defendants argued they were entitled to both.
The California Supreme Court disagreed, noting that the “prosecution presented strong evidence that
both defendants acted with intent to kill, and therefore with express malice: The victims were shot with
armor-piercing shells fired from an assault-type rifle, each victim was hit multiple times (although one
shot may have hit both victims), and each defendant made a statement after the murders that implied he
had acted with intent to kill. . . . Neither defendant presented evidence that he acted with implied malice
or any less culpable mental state; instead, each presented evidence tending to show that he did not
participate in the murders. . . .Thus, the evidence showed that each defendant was guilty of murder with
express malice or not guilty at all, and the trial court therefore had no duty to instruct on an implied
malice theory of second degree murder.” (Id. at pp. 47-48.)
In People v. Carasi (2008) 44 Cal.4th 1263, the court held there was insufficient evidence of
provocation to support a second degree murder (malice) instruction where evidence showed either the
33
defendant did not commit killings, or that the killings were the product of defendant’s long-simmering
resentment towards the victim over family issues and an act of revenge - notwithstanding expert
testimony describing the victims’ injuries as consistent with a crime of passion and the victims’ alleged
hostility and conspiracy to separate defendant from his son in the months and weeks before the killing.
(Id. at pp. 1306-1308.)
Other cases finding insufficient substantial evidence to give second degree murder instructions
People v. Romero (2008) 44 Cal.4th 386, 402-404 [no substantial evidence to support giving second
degree murder instruction as lio of first degree murder charge]
People v. Prince (2007) 40 Cal.4th 1179, 1266 [no substantial evidence to support giving second
degree murder instruction as lio of first degree murder charge where only “evidence” of lack of
premeditation was “speculative scenarios”]
People v. Carter (2005) 36 Cal.4th 1114, 1184-1185 [no substantial evidence to support second degree
murder instruction as lesser included offense]
People v. Valdez (2004) 32 Cal.4th 73, 116 [no substantial evidence to support giving second degree
murder instruction as lesser included offense]
People v. Cunningham (2001) 25 Cal.4th 926, 1009 [no substantial evidence to support second
degree (malice) murder instruction as lesser included offense of first degree felony murder charge]
People v. Johnson (1993) 6 Cal.4th 1, 43-44 [no substantial evidence of provocation to support second
degree (malice) murder instruction]
People v. Jenkins (2006) 140 Cal.App.4th 805, 817-818 [no substantial evidence to support second
degree (malice) murder instruction as lesser included offense]
Substantial Evidence
In People v. Banks (2014) 59 Cal.4th 1113 [discussed in greater depth in this IPG, question 5-E at p.
23], a defendant killed a victim while attempting the rob the victim at an ATM. The evidence showed
that defendant, while wearing a shirt wrapped around his head to conceal his identity, walked up to the
victim as the victim stood at an ATM. However, it appears there was some discussion (perhaps an
argument) between the defendant and the victim before the victim turned toward the ATM and was shot
by the defendant. And there was no evidence that defendant took any property or money from the
victim after the shooting (Id. at pp. 1127-1130, 1161.) The court held there was substantial evidence to
justify the giving of a second-degree murder instruction even though the prosecution only argued felony
murder. (Id. at p. 1161 [albeit finding the error in failing to give the lesser instruction to be harmless].)
34
In People v. Rogers (2006) 39 Cal.4th 826, the court held there was substantial evidence of a lack of
premeditation justifying a second-degree murder instruction where the defendant testified he was not
making any calculated judgment or weighing considerations for and against killing victim and defense
experts likewise testified defendant did not premeditate or deliberate. (Id. at pp. 866-867, 871 [albeit
finding error was harmless because the evidence of lack of premeditation was still relatively weak].)
In People v. Wright (2015) 242 Cal.App.4th 1461 [discussed at length in this IPG, question 12-C at p.
43], the appellate court held that the evidence, “if not sufficient to negate malice and reduce the offense
to manslaughter, it could well have been sufficient, especially in combination with the evidence of
intoxication and mental disease, to negate premeditation and deliberation and reduce the offense to
second degree murder.” (Id. at p. 1495.)
In People v. Anderson (2006) 141 Cal.App.4th 430 [also discussed in this IPG, question 5-E at pp. 2324], a victim was found strangled to death in his hotel room. One of the victim’s pocket was pulled
through a tear in his pants. The defendant was convicted of first degree murder based primarily on her
interview with the police. In the interview, the defendant claimed she was with a companion at the
victim’s room. She said the victim, who had purchased some cocaine from the defendant’s companion,
because upset over the quality of the cocaine and over the fact the victim refused to sleep with him in
exchange for money. The defendant claimed the victim began attacking the defendant’s companion and
a struggle ensued. The companion placed the victim in a chokehold after the victim cut the companion’s
face with a crack pipe. While the victim and the companion were on the floor and the companion
maintained a choke hold on the victim, the companion yelled at the defendant to “[g]et the money” from
the victim. The victim tried but could not retract the money from the victim’s pocket. By this time, the
victim was no longer struggling. The defendant then got a knife, cut the pocket, and removed his money.
She said she was not aware the victim was dead and said he was still breathing when her companion
finally let go of the victim – albeit the victim was not moving or speaking. (Id. at pp. 436-437.) The
court held there was sufficient evidence to support the giving of a second-degree murder instruction (as
well as a voluntary manslaughter instructions) in light of defendant’s statement that her companion was
in the process of leaving the apartment when the victim began acting aggressively and that her
companion did not assume his chokehold on the victim until after the victim had cut his face with a
crack pipe. (Id. at p. 447.)
B.
What constitutes substantial evidence to support the giving of an
instruction on second-degree felony murder as a lesser included
offense of first degree felony murder?
Second degree felony murder can be a lesser included offense of first degree felony murder. (See
People v. Beames (2006) 40 Cal.4th 907, 928; People v. Blair (2005) 36 Cal.4th 686, 745; see also
People v. Castaneda (2011) 51 Cal.4th 1292, 1329.)
35
Editor’s note: Presumably, giving an instruction on second degree felony murder as a lesser included
offense would only apply in circumstances where there is evidence the underlying crime is an inherently
dangerous felony that does not merge with the killing itself. (See People v. Chun (2009) 45 Cal.4th 1172,
1200.)
This portion of the IPG does not discuss cases involving claims that a second-degree malice murder is a
lesser included offense of first degree felony murder. The California Supreme Court has expressly
declined to decide “whether second degree murder is a lesser included offense when . . . the prosecution
proceeds solely on the theory that the killing is first degree murder under the felony-murder rule and
does not argue that the killing is first degree murder because it is willful, deliberate, and premeditated.”
(People v. Romero (2008) 44 Cal.4th 386, 402; People v. Valdez (2004) 32 Cal.4th 73, 114-115, fn.
17; see also this IPG, section II at pp. 105-106.) The cases covered are limited to those involving
requests for second-degree felony murder instructions as lesser included offenses of first degree felony
murders.
Insubstantial Evidence
In People v. Blair (2005) 36 Cal.4th 686, the defendant deliberately and fatally poisoned the victim by
placing cyanide in a gin bottle and giving the bottle to one of the victim’s friends for delivery. The
apparent motive was to obtain money that defendant believed was owed to him by one of the victims.
(Id. at p. 697.) The defendant was charged with, and convicted of, first degree murder under a theory
the murder was perpetrated by means of poison. The Blair court recognized that a person who violates
Penal Code section 347 (which prohibits the willful mingling of any poison or harmful substance with
any food, drink, medicine, or pharmaceutical product ... where the person knows or should have known
that the same would be taken by any human being to his or her injury) and death results either
accidentally or negligently, may only be guilty of second degree felony murder. (Id. at p. 745.) In such a
circumstance, it is not necessary that there be an intent to kill or even a conscious disregard for life, all
that need be shown is the intent to injure or intoxicate the victim. Accordingly, the court concluded that
a second-degree murder instruction could potentially be justified as a lesser included offense in the case
before it. However, the court rejected the argument there was substantial evidence defendant intended
only to injure the victim when he poisoned her. The defendant’s course of conduct, including
deliberately obtaining a highly toxic substance and concealing its presence in the gin bottle from which
he expected the victim to drink, evidenced, at a minimum, a conscious disregard for [the victim’s] life (as
well as the lives of any others who might drink from the gin bottle), if not a specific intent to kill [the
victim].” (Id. at p. 746.) The court found that the absence of strong evidence of motive did not
constitute substantial evidence that defendant intended merely to injure,” nor did the fact that the
person who delivered the gin and drank it but did not die provide evidence of a mere intent to injure. A
statement that defendant made after giving the gin to the person who delivered it that he would come by
her apartment later, and defendant’s later inquiry about the whereabouts of that person was a week later
also did not provide substantial evidence - as the former shed little light on defendant’s intent with
36
regard to the murder victim, and the latter was equally consistent with an attempt to determine whether
or not the person was dead. (Id. at p. 746.)
In People v. Cole (2004) 33 Cal.4th 1158, the defendant was convicted of first degree felony murder
based on the felony of arson (Pen. Code, § 451). The court assumed that unlawfully setting a fire (Pen.
Code, § 452) was both a lesser included offense of arson as well as that it was an inherently dangerous
felony subject to the second-degree felony-murder rule – and thus defendant could potentially be
entitled to a lesser included instruction on second degree felony murder, if the defendant did not commit
arson but simply unlawfully caused a fire in violation of Penal Code section 452. However, the court
held defendant was not entitled to such an instruction, even though there was testimony that he
intended to burn but not kill the victim, where: (1) the flammable liquid used to start the fire was poured
in two distinct areas—near the bedroom door and near the foot of the bed—and ignited separately; (ii)
defendant himself admitted he poured gasoline on the bedroom floor and wanted to burn the house, as
well as the victim. (Id. at pp. 1218-1219.)
Other cases finding insufficient substantial evidence to give second degree felony murder instructions
People v. Williams (2015) 61 Cal.4th 1244, 1263 [no substantial evidence crime of discharging a
firearm in a grossly negligent manner (allowing for second-degree felony murder conviction) was
intended crime and not intentional premeditated murder].)
People v. Burney (2009) 47 Cal.4th 203, 251 [insufficient evidence to support giving instruction on
instruction on second degree felony-murder in robbery-murder case because there is no rational basis to
conclude that the murder was committed during the unlawful taking of a vehicle, joyriding, or theft, but
not during the commission of a robbery]
C.
What constitutes substantial evidence to support the giving of an
instruction on “heat of passion/sudden quarrel voluntary
manslaughter as a lesser included offense of a malice murder?
To reduce a murder to a “heat of passion/sudden quarrel” voluntary manslaughter, it must be shown
that “at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an
extent as would cause the ordinarily reasonable person of average disposition to act rashly and without
deliberation and reflection, and from such passion rather than from judgment.” (People v. Moye
(2009) 47 Cal.4th 537, 550.)
“A heat of passion theory of manslaughter has both an objective and a subjective component. (People v.
Moye (2009) 47 Cal.4th 537, 549 [citing numerous cases].) “To satisfy the objective or ‘reasonable
person’ element of this form of voluntary manslaughter, the accused’s heat of passion must be due to
‘sufficient provocation.’” (Ibid.) “To satisfy the subjective element of this form of voluntary
37
manslaughter, the accused must be shown to have killed while under ‘the actual influence of a strong
passion’ induced by such provocation.” (Id. at p. 550.)
“The provocation which incites the defendant to homicidal conduct in the heat of passion must be
caused by the victim [citation omitted], or be conduct reasonably believed by the defendant to have been
engaged in by the victim.” (Ibid.)
“Predictable and reasonable conduct by a victim resisting felonious assault is not sufficient provocation
to merit an instruction on voluntary manslaughter.” (People v. Enraca (2012) 53 Cal.4th 735, 760
citing to People v. Blacksher (2011) 52 Cal.4th 769, 833 and People v. Jackson (1980) 28 Cal.3d
264, 306.)
“A passion for revenge cannot satisfy the objective requirement for provocation. (People v. Gutierrez
(2002) 28 Cal.4th 1083, 1144.)
“[I]f sufficient time has elapsed between the provocation and the fatal blow for passion to subside and
reason to return, the killing is not voluntary manslaughter.” (People v. Moye (2009) 47 Cal.4th 537,
550.)
Insubstantial Evidence of Provocation
In People v. Landry (2016) 2 Cal.5th 52, the court upheld the trial court’s refusal to give instruction
on voluntary manslaughter under a heat of passion theory. The facts of the case are discussed in this
IPG at question 12-A at p. 33. The court stated that even if defendant was having angry words with the
victim before the attack and the victim had disrespected and threatened to kill the defendant at some
earlier time, the evidence did not begin to demonstrate either provocation for purposes of heat of
passion voluntary manslaughter. (Id. at p. 98.)
In People v. Nelson (2016) 1 Cal.5th 513, the defendant was a disgruntled employee of Target who left
his job three weeks after failing to receive a promotion. The defendant rode his bike to the Target
parking lot, and approached a car occupied by the woman who received the promotion and another coworker who had defended the woman from being harassed by the defendant. The defendant, who knew
the woman typically waited in the parking lot for the store to open, came up from behind the car and
fired several shots into the car through an open rear window, then started to walk away before returning
and firing again into the car. (Id. at p. 522.) The only evidence presented by defendant regarding his
motivation for being in the parking lot were his statements he was suffering from insomnia and “went to
the Target Center without any clear idea of what he was going to do,” but that he thought he might shoot
himself. Defendant said he shot the male co-worker because he thought the co-worker was reaching for
a gun. (Id. at pp. 539-540.) There was evidence that in the weeks before the shooting, defendant’s exgirlfriend accused him of flirting with his coworkers, called the female victim a “whore” and a “bitch,”
and told defendant that he should have received the promotion. (Id. at p. 529.) The California Supreme
38
Court held there was insufficient evidence to justify an instruction on heat of passion voluntary
manslaughter, since “[t]he provocation which incites the defendant to homicidal conduct in the heat of
passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to
have been engaged in by the victim” and even assuming the ex-girlfriend’s comments incited the
defendant, the comments were not objectively sufficient “to arouse the passions of the ordinarily
reasonable man.” (Id. at pp. 539-540.)
In People v. Sattiewhite (2014) 59 Cal.4th 446, the defendant killed the victim after she had been
raped by defendant’s friend. At trial defendant claimed he acted out of fear of his friend in killing the
victim. (Id. at pp. 453-456.) The court rejected defendant’s argument he was entitled to an instruction
on voluntary manslaughter because duress cannot reduce murder to manslaughter. The court also
rejected a claim defendant was entitled to a sudden quarrel/heat of passion voluntary manslaughter
instruction even though there was evidence that the friend had told the defendant that unless he shot the
victim, he would “smoke” both defendant and the victim. The court explained that “testimony that
defendant might have acted out of fear of one of his cohorts, not fear of the victim, does not provide
substantial evidence to support a finding of heat-of-passion voluntary manslaughter. (Id. at pp. 477478.)
In People v. Souza (2012) 54 Cal.4th 90, in retaliation for an earlier incident in which their mother
had been forcibly removed from a house party, defendant and two other men armed themselves with
guns, drove to the apartment of murder victim and opened fire on the partygoers, killing three people
and wounding two others. (Id. at pp. 96-97.) The court held there was insufficient evidence of
provocation or heat of passion to justify an instruction on voluntary manslaughter where: (i) the
shooting took place after an initial unsuccessful search for victim’s home, the defendant’s mother had
calmed down, returned to her home with defendant, and went to bed; (ii) the defendant and codefendant
armed themselves and set out yet again to find victim's home with a third armed accomplice; (iii)
defendant waited outside and observed the victim’s home; and (iv) before entering the home, defendant
and his cohorts obscured their faces with bandanas. (Id. at p. 115 [and noting, regardless of whether
defendant subjectively killed in the heat of passion, “a passion for revenge . . . will not serve to reduce
murder to manslaughter”].) The Souza court also rejected the claim that sufficient evidence of
provocation existed where, after defendant entered the victim’s apartment, one of the victims rose and
demanded to know what was going on and then, after a defendant’s accomplice forced that victim back
down with his shotgun, the victim attempted to rise again and reach for the accomplice – causing a lamp
to break. (Id. at pp. 116-117 [and noting the victim’s “actions, in standing up from the couch and
reaching for . . . —one of three armed unknown men bursting into the home—constituted predictable
and reasonable conduct by a victim resisting felonious assault, and not provocation sufficient to merit a
manslaughter instruction”].)
39
In People v. Rountree (2013) 56 Cal.4th 823, the court found no substantial evidence of provocation
where the defendant and his girlfriend kidnapped a 19-year old girl from a shopping mall, robbed her,
drove her to a remote location, and shot her to death - since defendant claimed his initial shot was an
accident rather than in the heat of passion, and a victim’s conduct in resisting being killed (even if it
caused defendant to become overly excited or provoked) could not constitute provocation sufficient to
reduce charge to manslaughter. (Id. at pp. 829, 855.)
In People v. Thomas (2012) 53 Cal.4th 771, the court found no substantial evidence of provocation
where the defendant placed a gun between the victim’s eyes and threatened to shoot him, the victim
grabbed the gun, the defendant and victim started wrestling over it, and defendant fatally shot the victim
– because such predictable conduct by a resisting victim was not the type of provocation that could
reduce a murder charge to voluntary manslaughter. (Id. at pp. 813-814.)
In People v. Enraca (2012) 53 Cal.4th 735, the court held there was insufficient provocation based on
victims “belligerent behavior” and conduct insulting to defendant’s gang, even though both victims
appeared to be reaching for guns before defendant shot them, because such insults or gang-related
challenges would not induce sufficient provocation in an ordinary person, and defendant told a police
detective that he remained calm and tried to exert a calming influence on the other members of his gang
even after one victim apparently reached for a gun and was attacked by the others. (Id. at pp. 743–744,
759.)
In People v. Gonzales (2011) 52 Cal.4th 254, the defendants were gang members who shot and killed
the victims because they were rival gang members. Although there was some evidence of an argument
that preceded the shooting, the court held there was insufficient evidence of heat of passion or sudden
quarrel to warrant a where, even assuming defendants and the victims were arguing before the shooting,
and the victims were members of a rival gang that had killed a member of the defendants’ gang two
weeks earlier, because there was no evidence the victims had killed the defendants’ fellow gang member
and “[m]ore importantly, a passion for revenge cannot satisfy the objective requirement for
provocation.” (Id. at p. 301.)
In People v. Castaneda (2011) 51 Cal.4th 1292, the court held there was no substantial evidence of
provocation where the defendant bound, gagged, killed, stole items from, and possibly sexually assaulted
a medical assistant at a medical clinic by stabbing her 27 times. Defendant argued that he was entitled
to voluntary manslaughter instruction statements under the theory that he traveled to the clinic to
obtain treatment for his thumb and events “transpired out of control because [defendant] became angry
over some conduct or comment by the victim.” (Id. at p. 1330.) However, the court rejected this
argument (which was based on defendant’s statement he injured his thumb, that “this bitch got me mad”
and the presence of a book belonging to the victim being found on the floor of her office) as too
speculative to justify an instruction on heat of passion voluntary manslaughter. (Id. at pp. 1330-1331.)
40
People v. Rogers (2009) 46 Cal.4th 1136, 1168-1169 [no substantial evidence of provocation to
support voluntary manslaughter instruction simply because defendant and victim may have had earlier
argument over phone and defendant, on a prior occasion had once “gone ballistic”].
People v. Avila (2009) 46 Cal.4th 680, 727-728 [no substantial evidence of provocation to support
voluntary manslaughter instruction simply because, prior to defendant stabbing multiple victims, one of
victims’ friends may have stated a “gang name” and argued with defendant after defendant had
approached victims based on seeing them talking to females the defendant felt proprietary about]
People v. Gutierrez (2009) 45 Cal.4th 789, 826-827 [no substantial evidence of provocation to
support voluntary manslaughter instruction where, even under defendant’s version, the only events that
might have constituted provocation consisted of a profanity-infused argument between him and the
victim (the mother of defendant’s son) that escalated into a physical altercation involving the victim
grabbing defendant’s shirt and scratching his chest, and the two exchanging kicks, before defendant
walked away]
In People v. Carasi (2008) 44 Cal.4th 1263, the court held there no substantial evidence of
provocation to support a voluntary manslaughter instruction where the evidence showed either that
defendant did not commit killings or that the killings were the product of defendant’s long-simmering
resentment towards the victims (defendant’s mother and defendant’s ex-girlfriend) over family issues
and was an act of revenge. The court rejected the notion that expert testimony describing the victim's
injuries as consistent with a crime of passion and the victims’ alleged hostility and conspiracy to separate
defendant from his son in the months and weeks before the killing constituted sufficient provocation to
justify a heat of passion manslaughter instruction. (Id. at pp. 1305-1308.)
In People v. Cruz (2008) 44 Cal.4th 636, the court held there was no substantial evidence of
provocation to support instruction on voluntary manslaughter where the defendant killed a deputy who
was transporting defendant to jail, - even assuming defendant had been brutalized by the police in
Mexico at an early age, was intoxicated at the time of his arrest, and was handled roughly by the
arresting officer. (Id. at pp. 654, 664-665.)
In People v. Manriquez (2005) 37 Cal.4th 547, before the defendant fatally shot the victim, the victim
calling the defendant “a ‘mother f...er’ and ... repeatedly assert[ed] that if defendant had a weapon, he
should take it out and use it[.]” (Id. at pp. 561-562.) The defendant had also heard some threats that the
victim wanted to kill him. The California Supreme court held this was insufficient to objectively provide
the requisite provocation. Moreover, it did not even appear defendant subjectively acted out of the heat
of passion as there was no showing that defendant exhibited anger, fury, or rage; and the defendant
repeatedly told the victim to calm down and that the defendant did not want any problems before
shooting the victim. (Id. at pp. 581-586.)
41
In People v. Chestra (2017) 9 Cal.App.5th 1116 [2017 WL 1034537], a gang member defendant kicked
in the apartment door of the victim (who was a fellow gang member), the victim armed himself with a
pair of scissors and attempted to block the door, and the defendant reached around the door and fired
his weapon several times killing the victim. The defendant confessed to the police he killed the victim
for talking “shit” and for possibly raping his girlfriend. The defendant also made other statements
consistent with his premeditating the murder. At trial, however, the defendant denied shooting the
victim and said it was his girlfriend who shot and killed the victim after the two of them went to the
victim’s apartment to obtain cocaine. Defendant claimed the victim saw him in the hallway and told
defendant “What's up, meaning “Fuck you.” Defendant then said the victim retreated into the
apartment, returned with a pair of scissors in his hand, and tried to stab defendant. (Homicide
investigators found the victim gripping the scissors in his hand.) The defendant alleged a physical
altercation between the two ensued but ended when his girlfriend shot the victim. Defendant testified he
falsely confessed to the murder in order to protect his girlfriend was telling the truth at trial because he
was terminally ill. (Id. at p. *1-*2.) The appellate court held that “under no view of the evidence was
defendant guilty of only voluntary manslaughter” and thus no instructions on either heat of passion or
imperfect self-defense were required. (Id. at *9.)
Other cases finding insufficient substantial evidence to give a heat of passion/sudden quarrel
voluntary manslaughter instruction
People v. Booker (2011) 51 Cal.4th 141, 181 [insufficient provocation where defendant claimed he was
provoked into killing two victims who allegedly became aggressive and angry with him for killing a third
victim]
People v. Hoyos (2007) 41 Cal.4th 872, 914 [no substantial evidence of provocation to support
voluntary manslaughter instruction simply because victim had alleged propensity for violence]
People v. Cole (2004) 33 Cal.4th 1158, 1216 [no substantial evidence of provocation to support
voluntary manslaughter instruction based on victim telling jealous and intoxicated defendant she would
put a “butcher knife in your ass” during argument]
People v. Oropeza (2007) 151 Cal.App.4th 73, 83 [no substantial evidence of provocation to support
voluntary manslaughter instruction based on victim cutting off defendant’s truck on freeway]
People v. Najera (2006) 138 Cal.App.4th 212, 226-227 [no substantial evidence of provocation to
support voluntary manslaughter instruction just because victim called defendant a “faggot” and pushed
defendant to the ground]
People v. Butler (2005) 127 Cal.App.4th 49, 61 [no substantial evidence of provocation to support
voluntary manslaughter instruction where defendant armed himself before fight, hit victim without
provocation, and then, shot unarmed victim while victim attempted to run away]
42
Substantial Evidence of Provocation
In People v. Breverman (1998) 19 Cal.4th 142, the court held there was substantial evidence of heat
of passion voluntary manslaughter (in addition to imperfect self-defense voluntary manslaughter) where
a group of young men, armed with dangerous weapons and harboring a specific hostile intent,
trespassed upon domestic property occupied by defendant and acted in a menacing manner by doing
such things as challenging defendant to fight and using weapons to batter and smash defendant's vehicle
-albeit suggesting that mere vandalism to the car by itself would not constitute substantial evidence. (Id.
at pp. 163-164.)
In People v. Barton (1995) 12 Cal.4th 186, the court upheld the giving of a heat-of-passion voluntary
manslaughter instruction over defendant’s objection where there was evidence showing that (i) shortly
before the defendant shot the victim, the defendant’s daughter had told him that the victim tried to run
her car off the road and had spat on her car window; (ii) the defendant and his daughter then confronted
the victim, at which point the victim called the daughter a “‘bitch’” and acted “‘berserk’”; (iii) the
defendant and the victim then confronted each other, with the victim assuming a “‘fighting stance’”; (iv)
after the defendant asked his daughter to call the police, the victim tried to leave in his car; (v) when the
defendant asked the victim where he was going, the victim “replied, ‘none of your fucking business,’ and
taunted [the] defendant by saying, ‘Do you think you can keep me here?’”; and (vi) the defendant began
“[s]creaming and swearing” and threatened to shoot if the victim did not drop his knife (although the
evidence conflicted as to whether the victim actually had one). (Id. at p. 202.)
In People v. Wright (2015) 242 Cal.App.4th 1461, the defendant and the victim were estranged
parents of a three-year old. Their relationship was very stormy. They were involved in ongoing custody
battles. The defendant sent threatening text messages to the victim. The defendant knowing the victim’s
work schedule and post-work routine, drove to a parking lot and waited for him to come home,
whereupon she sneaked up on him unaware and shot him dead while he was in his car. (Id. at pp. 1469,
1496.) According to the defendant, she was not jealous of the defendant (albeit in an earlier statement to
the police, she said she was angry at the victim for becoming involved with another woman after they
had split). She was depressed, suicidal, and using drugs and alcohol. She was fearful the defendant was
going to take her son away from her (based on various circumstances). She was under much stress and
had just intended to shoot at the defendant and scare him. She waited in the parking lot for about 10
minutes before he got there and watched him for about five minutes before going to shoot at him. Her
first shot missed the victim. The victim then got out of his car and tried to hit her. She got scared and
she fired one or two more times. She thought maybe she hit him in the leg. He fell; she ran. (Id. at pp
1471-1472, 1475-1480.) In the first trial of defendant, the jury convicted the defendant of violating Penal
Code section 246 but hung on the murder charge. In the second trial, the defendant asked for
instructions on self-defense, imperfect self-defense, provocation, and voluntary manslaughter – all of
which were denied based, in part, on the presumed preclusive effect of the section 246 conviction on
self-defense and voluntary manslaughter issues. (Id. at p. 1466.) The trial court also focused on the
43
second and third short and reasoned such instructions were inapplicable because the defendant’s actions
after being shot at in his car were the predictable conduct of a victim resisting the defendant’s conduct,
because words and simple assault are not legally sufficient provocation, and because the provocation
must come from the victim, not from the defendant’s personal circumstances. (Id. at p. 1483.)
However, the appellate court agreed with the defendant that the acrimonious relationship between
defendant and the victim, particularly concerning their ongoing custody battle over their son, provided a
substantial evidentiary basis for a heat of passion voluntary manslaughter instruction. (Ibid.)
Editor’s note: The appellate court in Wright focused on the fact that the defendant was consumed with
thoughts about the victims’ threats to take custody of her son, and observed that the provocation stemmed not
from a “sudden quarrel” but from a “provocatory course of conduct on defendant’s part relating to their child.”
(Id. at p. 1484.) The appellate court noted that “feminist scholars posit that jurists inevitably infuse
objectively reasonable provocation with male attributes and may fail to accommodate ‘the emotions that drive
women to kill—fear, depression, and sadness rather than anger. Additionally, the ways in which women
develop these emotions may differ from the “snapped’ scenario.” [Fns. omitted]. Thus, ‘provocation law
should accept a variety of emotions as constituting “passion,” and permit women to argue that provocation
can develop over time.’” (Id. at p. 1483, fn. 8.)
In People v. Millbrook (2014) 222 Cal.App.4th 1122, the defendant came to a party while armed. The
defendant was somewhat reluctant to accompany his friend to the party out of a concern persons with
whom he had a conflict might be present. At the party the eventual victim of defendant’s attempted
murder got into a heated argument with the defendant’s female friends. The defendant thought the
victim, who was very angry and much larger than the defendant, might have a gun based on overhearing
a phone conversation the victim had. There was evidence that: (i) defendant and the victim also got into
an argument; (ii) the victim escalated the fight with the defendant; (iii) a friend of the victim’s
intervened in the argument; (iv) the defendant was angered by the victim’s treatment of his friend; (v)
the defendant had been threatened in violent incidents in the past and was intimidated by the
defendant’s size and by being surrounded by defendant’s friends; (vi) the victim had threatened to get
someone to beat the defendant’s female friend and told the defendant to “check your bitch” immediately
before the shooting; (vii) the victim had had clenched his fists and “lunged” at defendant before being
shot; and (viii) the defendant was “scared” and “panicking” and “was not trying to be a victim again”
when he shot the defendant. (Id. at pp. 1128-1136, 1139.) The trial court gave instructions on imperfect
self-defense attempted voluntary manslaughter but not heat of passion/sudden quarrel attempted
voluntary manslaughter. (Id. at p. 1136.) The appellate court recognized that “a heat-of-passion
instruction is not always warranted ‘where the same facts’ supporting it ‘would give rise to a finding of
reasonable self-defense.’” (Id. at p. 1138.) Moreover, the court recognized that the defendant denied
shooting the victim because the victim disrespected his female friend, but stated the jury was entitled to
disbelieve defendant’s “reason for shooting and to rely on the other evidence we have identified to find
that [the defendant] shot spontaneously and under the influence of extreme emotion.” (Id. at p. 1140.)
Nevertheless, the court reversed the conviction, finding there was substantial evidence requiring a heat
44
of passion/sudden quarrel attempted voluntary manslaughter instruction. (Id. at p. 1136.)
In People v. Thomas (2013) 218 Cal.App.4th 630, the defendant engaged in a “‘pretty heated’”
argument with the victim and the victim’s friends after the defendant blocked in the friends’ car. (Id. at
pp. 634–635.) At least one of the victim’s friends punched and beat the defendant. (Id. at pp. 635, 639,
645.) There was evidence the defendant then went to his car and retrieved a gun, that the defendant
seemed angry, and that the defendant’s father tried to calm him. (Id. at p. 645.) According to the
defendant, the victim then approached and “lunged at him,” making the defendant believe the victim
was trying to get the defendant’s gun. (Ibid.) The defendant testified that “[h]e fired because he was
afraid, nervous and not thinking clearly.” (Ibid.) The Thomas court held the defendant was entitled to
a heat of passion instruction and reversed the conviction because it was not given even though there was
evidence had some time to “‘cool off’” while retrieving his gun and speaking with his father, the
defendant claimed he unintentionally pulled the trigger, and most of defendant’s testimony was selfserving. (Id. at pp. 633, 645.)
In People v. Anderson (2006) 141 Cal.App.4th 430 [discussed in this IPG, question 5-E at pp. 23-24
and 12-B at pp. 35], the court held there was substantial evidence to support the giving of an instruction
on voluntary manslaughter based on a sudden quarrel or heat of passion because defendant’s statement
provided substantial evidence supporting a conclusion that her companion’s fatal chokehold was
motivated by rage at the victim's unprovoked attack. (Id. at pp. 447.)
Other cases finding substantial evidence to give a heat of passion/sudden quarrel voluntary
manslaughter instruction
People v. Berry (1976) 18 Cal.3d 509, 513-515 [there was substantial evidence of provocation to
support voluntary manslaughter instruction based on “two-week period of provocatory conduct” by the
victim-which alternated between verbally taunting the defendant with her involvement with another
man, three days after her marriage to the defendant, and sexually exciting the defendant, indicating her
desire to remain with him].
People v. Logan (1917) 175 Cal. 45, 46–47, 50 [defendant entitled to heat-of-passion instruction where
evidence demonstrated victim’s “physical superiority” and defendant's “fear that he was about to be
subjected to a second humiliating beating” at victim’s hands]
People v. Le (2007) 158 Cal.App.4th 516, 528-529 [there was substantial evidence of provocation to
support voluntary manslaughter instruction where victim had long affair with defendant’s wife,
defendant acted after his wife had broken several promises to end the affair, and on the day of the
killing, the wife used insulting words in a confrontation with her husband regarding the affair].)
People v. McCowan (1986) 182 Cal.App.3d 1, 15 [heat-of-passion instruction required where
defendant, who had undergone a bitter divorce from the victim and was under the influence of alcohol,
45
librium, and stress based on various circumstances, confessed that “he became enraged” when his exwife “made [an] obscene gesture at him” as he drove by her home, prompting him to shoot her].)
D.
What constitutes substantial evidence to support the giving of a
lesser included instruction on a “imperfect self-defense” voluntary
manslaughter?
“[O]ne who holds an honest but unreasonable belief in the necessity to defend against imminent peril to
life or great bodily injury does not harbor malice and commits no greater offense than manslaughter.”
(People v. Elmore (2014) 59 Cal.4th 121, 134 citing to People v. Flannel (1979) 25 Cal.3d 668, 672.)
Imperfect self-defense reduces murder to voluntary manslaughter. (People v. Duff (2014) 58 Cal.4th
527, 561.)
Editor’s note: There will always be insubstantial evidence of imperfect self-defense when the only evidence
of defendant’s belief in the need to defend himself is entirely delusional. (People v. Elmore (2014) 59
Cal.4th 121, 130.)
Insubstantial Evidence of Imperfect Self-Defense
In People v. Landry (2016) 2 Cal.5th 52, the court upheld the trial court’s refusal to give instruction
on voluntary manslaughter under an imperfect self-defense theory. The facts of the case are discussed in
this IPG at question 12-B at p. 33 and 12-C at p. 38. The court stated that even if defendant was having
angry words with the victim before the attack and the victim had disrespected and threatened to kill the
defendant at some earlier time, the evidence did not begin to demonstrate imminence of danger of death
for purposes of imperfect self-defense voluntary manslaughter. (Id. at p. 98.)
In People v. Simon (2016) 1 Cal.5th 98, the defendant, a gang member, went over to an apartment
which the victim was visiting. When the defendant was introduced to the victim, the defendant asked
the victim where he was from and the victim claimed membership in a rival gang. The defendant
became angry and cursed at the victim. The victim lifted his shirt to show he was unarmed, said he had
just been released from prison, and said he was “trying to be cool.” The defendant then asked two other
persons who were present to get defendant’s gun. The male resident of the apartment tried to usher the
defendant outside but defendant responded by swinging his fist at the resident and asked why he was
hanging out with the rival gang. The female resident of the apartment asked defendant to leave.
Defendant then used the bathroom. When he exited the bathroom, he hugged the victim. There was
conflicting evidence as to whether defendant had calmed down. At some point the defendant left the
house with the male resident of the apartment. The victim eventually went outside to check on the male
resident. Three shots rang out and the male resident of the apartment returned within moments,
appearing to have been in fight. The victim had been shot once. The defendant was seen fleeing. At
trial, there was testimony that there was an argument between the defendant and the victim outside the
46
apartment. There was also testimony that the victim was leaning on defendant’s car and the defendant
told the victim to get off his vehicle. The victim had some history of violence and was bigger than the
defendant. (Id. at pp. 108-110.) A heat of passion/sudden quarrel voluntary manslaughter instruction
was given but no instruction was given on imperfect self-defense voluntary manslaughter.
Notwithstanding the testimony that three gunshots were fired (implying the existence of another gun),
that there was an argument, that defendant was smaller than the victim, and that the fatal shot was fired
at close range, the California Supreme Court held there was not substantial evidence justifying the an
imperfect self-defense voluntary manslaughter instruction, given the lack of evidence indicating the
victim was the aggressor or that defendant perceived the victim —who was unarmed—posed a risk of
imminent peril. (Id. at pp. 131-133.)
In People v. Trujeque (2015) 61 Cal.4th 227, the defendant killed a victim who he believed was
abusing his cousin. By defendant’s own account, he was paid by the parents of the victim to “take care of
the problem” and kill the victim- although other evidence indicated the parents did not want the victim
killed, only injured. There was also evidence that on the day of the murder, defendant appeared angry
based on seeing his cousin’s black eye and reflected in his repeated inquiries as to whether the victim
would be coming by later. When the victim did show up, the defendant asked him for a ride (reflecting a
lack of fear). There was no evidence suggesting the victim acted in a threatening manner before
defendant fatally stabbed the victim. And defendant made various admissions that he planned to kill
the victim. (Id. at pp. 237-238, 271-272.) The California Supreme Court rejected the claim the
defendant was entitled to an imperfect self-defense voluntary manslaughter instruction, which would
have been premised on the fact that the victim has previously abused and threatened the victim. (Id. at
pp. 271-272.)
In People v. Duff (2014) 58 Cal.4th 527, the defendant was convicted of murder under a theory that he
killed two victims while robbing them. In defendant’s confession, he claimed he killed the two victims
because they pulled multiple guns on him and opened fire. The defendant claimed he was entitled to an
instruction on imperfect self-defense voluntary manslaughter. The court rejected the argument because
it found that defendant’s version, if believed “could lead only to a finding of justifiable homicide and a
total acquittal on the homicide charges [since] . . . [t]he use of lethal force in response to being shot at
repeatedly is perfect self-defense and no crime.” (Id. at p. 562.) That is, the circumstances described by
the defendant leave no room for believing the defendant unreasonably misperceived the situation.
“Either he was attacked, in which case he committed no crime, or he was not, in which case he
committed murder.” (Ibid.)
In People v. Moye (2009) 47 Cal.4th 537, the court held defendant had no right to an instruction on
heat of passion manslaughter even though the trial court gave an instruction on imperfect self-defense
manslaughter where (i) the defendant and victim had a fight the night before the killing; (ii) the
defendant went searching for one of the other persons with whom the defendant had fought to make
47
peace (the defendant claimed he initially believed the victim was that other person); (iii) the victim
kicked defendant’s car before defendant and his associates pursued victim and his brother; (iv) the
defendant chased the victim; (v) the defendant claimed the victim (who was carrying a bat) turned on
the defendant and began attacking him with the bat; but (vi) the defendant testified he acted deliberately
in seeking to defend himself from each successive advance by the victim and only hit the victim with the
bat (which the defendant took from the victim) in self-defense. (Id. at pp. 552-555.)
In People v. Chestra (2017) 9 Cal.App.5th 1116 [2017 WL 1034537], the court held there was no
substantial evidence to give an instruction on imperfect self-defense voluntary manslaughter under the
circumstances discussed in this IPG, question 12-C at p. 42.
In People v. Valenzuela (2011) 199 Cal.App.4th 1214, the court held there was insubstantial evidence
to give an instruction on imperfect self-defense where the prosecution’s evidence showed defendant
ambushed some rival gang members, but the defendant’s testimony (i.e., that he shot at the victims after
they followed his car, screamed out in a manner reflecting their gang, the passenger moved as if he had a
gun, defendant heard a popping sound, and the passenger began to open the car door with a black object
in his hand) would only show a reasonable, not unreasonable, belief in imminent danger. (Id. at pp.
128-129.)
In People v. Battle (2011) 198 Cal.App.4th 50, the court held there was no substantial evidence
supporting imperfect self-defense voluntary manslaughter instruction in the case of defendant who hired
people to kill his father, where the testimony of defendant and his family established past abuse by
victim and fear that victim would continue the abuse in the future, but did not establish imminence, or
that defendant even believed harm was imminent, and defendant testified that, at the time of the
shooting, victim posed no danger to him, to his mother, or to his sisters, and that he knew that victim
posed no danger to him or others at the time of the killing. (Id. at pp. 72-74.)
Other cases finding insubstantial evidence to give an imperfect self-defense voluntary manslaughter
instruction
People v. Cruz (2008) 44 Cal.4th 636,654, 664-665 [no substantial evidence defendant subjectively
believed in need to defend his life or avoid great bodily injury sufficient to support voluntary
manslaughter of deputy who was transporting defendant to jail, even assuming defendant had been
brutalized by the police in Mexico at an early age, was intoxicated at the time of his arrest, and was
handled roughly by the arresting officer]
People v. Hoyos (2007) 41 Cal.4th 872, 914 [no substantial evidence defendant subjectively believed
in need to defend his life or avoid great bodily injury sufficient to support voluntary manslaughter
instruction simply because victim had alleged propensity for violence]
48
People v. Stitely (2005) 35 Cal.4th 514, 550-552 [no substantial evidence that defendant subjectively
believed in need to defend his life or avoid great bodily injury sufficient to support voluntary
manslaughter instruction where defendant claimed victim had knife prior to killing but said victim
showed no interest in using the knife against him, and did not threaten him with it in any way]
People v. Oropeza (2007) 151 Cal.App.4th 73, 82 [no substantial evidence that defendant subjectively
believed in need to defend his life or avoid great bodily injury sufficient to support voluntary
manslaughter instruction]
Substantial Evidence of Imperfect Self-Defense
In People v. Villanueva (2008) 169 Cal.App.4th 41, the court held there was substantial evidence that
defendant subjectively believed in need to defend his life or avoid great bodily injury to support an
attempted voluntary manslaughter instruction where, despite defendant’s assertion the shooting was
accidental, the defendant testified he and the victim had earlier altercation where the victim threatened
to kill him, the victim appeared to reach in glove compartment for a weapon when the victim returned to
the scene of earlier altercation with the defendant, the defendant armed himself in response and begged
victim to leave, and the defendant only shot victim after he stepped on accelerator in apparent attempt
to run defendant over. (Id. at pp. 44-47, 52-53.)
In People v. Anderson (2006) 141 Cal.App.4th 430 [discussed in this IPG, question 5-E at pp. 23-24],
the court held there was substantial evidence to support the giving of an instruction on voluntary
manslaughter based on imperfect self-defense or defense of others because defendant's statement
provided substantial evidence supporting a conclusion that the companion acted in the good faith but
unreasonable belief that his actions were necessary to protect himself or the defendant from imminent
danger of death or great bodily injury. (Id. at pp. 447.)
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If the evidence is substantial enough to justify a lesser included instruction on voluntary manslaughter
based on imperfect self-defense, it is risk not to also give a lesser included instruction on voluntary
manslaughter based on heat-of-passion. (See People v. Breverman (1998) 19 Cal.4th 142, 163-164;
People v. Millbrook (2014) 222 Cal.App.4th 1122, 1136; but see People v. Moye (2009) 47 Cal.4th
537, 555 [no right to instruction heat of passion manslaughter where defendant received imperfect selfdefense manslaughter].)
49
E.
What constitutes substantial evidence that an unintentional killing
occurred during misdemeanor such that an involuntary
manslaughter instruction was warranted?
“A killing without malice ‘in the commission of an unlawful act, not amounting to [a] felony’ is
involuntary manslaughter. (§ 192, subd. (b).)” (People v. Thomas (2012) 53 Cal.4th 771, 813–814.)
Thus, killings that occur during a misdemeanor, such as battery or brandishing, can potentially be
involuntary manslaughter. (See People v. Cook (2006) 39 Cal.4th 566, 596-597 [battery]; People v.
Thomas (2012) 53 Cal.4th 771, 813–814 [brandishing].)
Insubstantial Evidence
In People v. Burney (2009) 47 Cal.4th 203, the court held there was no substantial evidence to justify
an instruction on involuntary manslaughter (in a felony murder case) based upon the theory that the
victim’s death could have occurred during the commission of the crime of false imprisonment (i.e., a
non-inherently dangerous felony) where the evidence that defendant and his companions forced the
victim into the trunk of his automobile at gunpoint and drove around with him in that posture pointed
indisputably to kidnapping; and there was no evidence or argument that defendant’s sole purpose was to
forcibly detain the victim at the scene of the shooting. (Id. at p. 252.)
In People v. Cook (2006) 39 Cal.4th 566, the court held there was no substantial evidence an
unintentional killing occurred during a mere misdemeanor battery where the defendant savagely beat
victim to death with a board. (Id. at pp. 596-597.)
In People v. Gana (2015) 236 Cal.App.4th 598, a suicidal defendant shot and killed her husband and
tried to kill her children. The defendant claimed not to remember aiming or firing the gun, and
defendant presented evidence that she was suffering from psychotic depression when she killed
husband. The court of appeal rejected the argument that the fact the defendant brandished the gun
before using it to shoot her husband in the chest was sufficient to support an involuntary manslaughter
jury instruction based on a misdemeanor-manslaughter theory. The court reasoned that brandishing
requires that the defendant brandish the firearm in a rude, angry, or threatening manner; and cases
holding the evidence supported a brandishing charge involve scenarios where the crime was preceded by
a quarrel or confrontation between the participants. However, the court held no evidence of such a
quarrel or confrontation had been presented. (Id. at pp. 606-607.)
In People v. Garcia (2008) 162 Cal.App.4th 18, the court held there was no substantial evidence of
unintentional killing during a misdemeanor to support involuntary manslaughter instruction where the
defendant struck the victim in the face with a gun and the victim died after falling backward and striking
his head on the sidewalk. (Id. at pp. 31-32.)
50
Editor’s note: One of the reasons the Garcia court held defendant was not entitled to an instruction on
involuntary manslaughter was that “an unlawful killing during the commission of an inherently dangerous
felony, even if unintentional, is at least voluntary manslaughter.” (Id. at p. 31.) However, Garcia was
overruled on this point in People v. Bryant (2013) 56 Cal.4th 959, 963 and thus may no longer be good law
regarding what constitutes substantial evidence of an involuntary manslaughter.
In People v. Parras (2007) 152 Cal.App.4th 219, the court held there was no substantial evidence an
unintentional killing occurred during mere misdemeanor battery to support the giving of an involuntary
manslaughter instruction where the victim's injuries included a compound fracture to her jaw, four teeth
being knocked out, and 12 to 15 distinct head wounds, and the injuries were inflicted by the use of great,
violent force. (Id. at p. 228.)
F.
What constitutes substantial evidence a killing occurred during a
lawful act which might produce death without due caution and
circumspection so as to support the giving of an involuntary
manslaughter instruction?
In People v. Cook (2006) 39 Cal.4th 566, the court held there was no substantial evidence to support
an involuntary manslaughter instruction on ground defendant committed a lawful act that might
produce death where the defendant “did not simply start a fist fight in which an unlucky blow resulted in
the victim's death” but savagely beat the victim to death with a board. (Id. at pp. 596-597.)
G.
What constitutes substantial evidence a killing without malice
occurred during the commission of a noninherently dangerous
felony (or an inherently dangerous assaultive felony) so as to
support the giving of an involuntary manslaughter instruction?
“Involuntary manslaughter is manslaughter during ‘the commission of an unlawful act, not amounting
to a felony,’ or during ‘the commission of a lawful act which might produce death, in an unlawful
manner, or without due caution and circumspection.’” (Pen. Code, § 192(b).) Acting without due
caution and circumspection (i.e., criminal negligence) is committing an act “endangering human life,
without realizing the risk involved[.]” (People v. Guillen (2014) 227 Cal.App.4th 934, 1027.) “By
contrast where the defendant realizes and then acts in total disregard of the danger, the defendant is
guilty of murder based on implied malice.” (Ibid.)
Although the statutory language of section 192(b) appears to exclude killings committed in the course of
a felony, “a killing without malice in the commission of a noninherently dangerous felony [also]
constitute[s] involuntary manslaughter if ‘committed without due caution and circumspection.’”
(People v. Bryant (2013) 56 Cal.4th 959, 966 citing to People v. Burroughs (1984) 35 Cal.3d 824,
835, emphasis added by IPG.)
51
In addition, an unlawful killing accomplished with implied malice during the course of an inherently
dangerous assaultive felony (i.e., an inherently dangerous felony that cannot support a second-degree
felony murder because it “merges” with the killing) is also involuntary manslaughter. (People v.
Brothers (2015) 236 Cal.App.4th 24, 34; see also People v. Bryant (2013) 222 Cal.App.4th 1196,
1206, fn. 10 [indicating it agreed with Justice Kennard’s concurring opinion in People v. Bryant
(2013) 56 Cal.4th 959 that this is a proper statement of the law but finding trial court had no sua sponte
duty to instruct on it at the time because this theory of involuntary manslaughter was not sufficiently
established].)
Editor’s note: The majority in People v. Bryant (2013) 56 Cal.4th 959 declined to address defendant’s
argument that since assault with a deadly weapon is not an inherently dangerous felony, the trial court erred
in failing to instruct the jury on the theory of involuntary manslaughter recognized in People v. Burroughs
(1984) 35 Cal.3d 824. (Bryant at p. 971.)
Insubstantial Evidence
In People v. Guillen (2014) 227 Cal.App.4th 934, defendants were part of a group of a dozen inmates
in a jail who assaulted another inmate (a suspected child molester) in waves over a period of 20-45
minutes. When the victim inmate lapsed into unconscious, the attacking inmates threw water on him to
wake him up. The inmates involved in the beating acted pursuant to an informal system in the jail which
allowed the assaults as a “tax” on child molesters. The defendants were aware that there were “no rules”
when it came to taxing child molesters. The victim inmate died from the assault. (Id. at pp. 947-951,
1027.) The Guillen court held no instruction on involuntary manslaughter was required as a lesser
included offense of murder under the theory that the killing occurred without malice in the commission
of a noninherently dangerous felony because there was insufficient evidence the defendants acted
without malice and were merely criminally negligent. (Id. at pp. 1027-1028.) Each defendant
committed an act endangering the victim’s life, i.e., by hitting, kicking, or stomping the victim and
realized the danger such a joint attack would involve. (Ibid.)
In People v. Brothers (2015) 236 Cal.App.4th 24, the defendant came to believe that the victim had
molested a pair of children the defendant treated as her grandchildren. With the assistance of some
others, she struck the victim in the head and face multiple times with a broomstick with such force the
stick broke in half. Then the group tied the victim up and continued to beat him about the face and body
and burn him with cigarettes. One of assailants shoved a large cloth gag down the victim’s throat,
causing him to suffocate. The victim was later found with his hands bound, and his body covered by a
plastic tarp that had been set on fire. (Id. at pp. 27-28.) The defendant testified she did not know “this
was going to happen.” (Id. at p. 34.) However, the appellate court held that, even assuming this remark
meant she did not intend to kill the victim, there was insufficient evidence to justify an instruction on
involuntary manslaughter since “there was simply no evidence from which a reasonable juror could
entertain a reasonable doubt that the [defendant] had acted in conscious disregard of the risk her
52
conduct posed to [the victim’s] life.” (Ibid.) The defendant admitted she “engaged in a deliberate and
deadly assault because she had been enraged, ‘out of control,’ and unable to calm herself. She
admittedly beat [the victim] repeatedly on the head and face with the large wooden broom handle with
great force, causing blunt force trauma the deputy coroner testified was a contributing cause of death.
She also continued to beat [the victim] in the garage, as did [the others], leaving the scene only after [one
of the other assailants] had forced the large cloth gag down [the victim’s] throat and [the victim] had
stopped moving. [The defendant] acknowledged that, at that point, she did not know whether [the
victim] was alive or dead. There was no evidence of an accidental killing, gross negligence or
[defendant’s] own lack of subjective understanding of the risk to [the victim’s] life that her and her
confederates' conduct posed.” (Ibid.)
In People v. Bryant (2013) 222 Cal.App.4th 1196, the defendant killed her boyfriend. The defendant
claimed that she stabbed her boyfriend during a physical altercation after she grabbed a knife from the
kitchen and threatened to hurt her boyfriend if he did not let her leave. The defendant stated the victim
lunged for the knife, and the two struggled over it. Defendant kept the knife and when the victim
advanced toward her, she made a thrusting motion at him with the knife, and it went into his chest.
Defendant claimed she never intended to kill the victim. (Id. at p. 1201.) The defendant argued the trial
court had a sua sponte duty to instruct on involuntary manslaughter as a lesser included offense of
murder, on the theory that she killed unlawfully while committing the misdemeanor offense of
brandishing a weapon or performing a lawful act with criminal negligence. (Id. at p. 1198.)
Caution: This portion of the IPG (question 12) is just a
sampling of (not a complete catalog of) cases addressing
common issues that arise when deciding what lesser included
offenses should be given in a murder case. It does not discuss
all cases bearing on the issue nor does it discuss all the
different ways evidence may be insufficient to support lesser
included offenses in a murder case. For example, we do not
discuss what constitutes substantial evidence of mental illness
bearing on whether defendant actually formed the intent to
kill such that defendant would be entitled to an involuntary
manslaughter instruction or what constitutes sufficient
evidence of voluntary or involuntary intoxication such that a
defendant would be entitled to which lesser included
instructions on murder.
53
13. When must an instruction on attempting to commit a crime
be given as a “lesser included offense” of the substantive
crime charged?
As noted earlier, Penal Code section 1159 provides, in pertinent part, that “[t]he jury, or the judge if a
jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily
included in that with which he is charged, or of an attempt to commit the offense.” (Pen. Code, §
1059, emphasis added by IPG.)
Moreover, Penal Code section 663 provides: “Any person may be convicted of an attempt to
commit a crime, although it appears on the trial that the crime intended or attempted was perpetrated
by such person in pursuance of such attempt, unless the Court, in its discretion, discharges the jury and
directs such person to be tried for such crime.” (Pen. Code, § 663; see also In re Ryan (2001) 92
Cal.App.4th 1359, 1381; People v. Heffington (1973) 32 Cal.App.3d 1, 11.)*
*Editor’s note: Penal Code 663 was enacted to remedy the problem stemming from the common-law
definition of attempt, which defined attempt as if failure were an essential element. Some courts had held
that proof of the completed crime required reversal of an attempt to commit it. “The effect of section 663 is
to treat failure as no longer an essential element when it comes to the practical question of whether a
conviction of that offense can be sustained despite a lack of affirmative evidence proving failure, in fact when
the evidence proves the opposite. (In re Sylvester C. (2006) 137 Cal.App.4th 601, 610.)
On its face, Penal Code section 1159 permits the jury or court to find the defendant guilty of necessarily
included offenses of the charged offense “or an attempt to commit the offense.” (Pen. Code, § 1159.)
Because the language is in the disjunctive, a normal reading of section 1159 strongly suggests that a trial
court could permit a conviction for an attempted version of the charged crime in the same way that it has
been interpreted to permit a conviction for a necessarily included offense of the charged offense. Under
this logic, it should be irrelevant whether an attempt actually qualifies as a lesser included offense under
either the elements or the accusatory pleading test. (See People v. Braslaw (2015) 233 Cal.App.4th
1239, 1248 [recognizing, but ultimately discounting, that “the ‘disjunctive language of section 1159
suggests both lesser included offenses and attempts should be treated equally when it comes to the
obligation to instruct sua sponte”].)
In addition, there are many cases indicating that an attempt is always a lesser included offense of any
completed crime – regardless of whether the attempted crime includes an element that is not included in
the charged crime (e.g., where the attempted version requires a specific intent not present in a crime
with general intent). (See People v. Vanderbilt (1926) 199 Cal. 461, 463-464; In re Sylvester C.
(2006) 137 Cal.App.4th 601, 609 [and cases cited therein]; People v. Meyer (1985) 169 Cal.App.3d
496, 506; and People v. Anderson (1979) 97 Cal.App.3d 419, 423-424; see also People v.
54
Martinez (1999) 20 Cal.4th 225, 241 [kidnapping reduced to attempted kidnapping]; People v. Kelly
(1992) 1 Cal.4th 495, 528 [rape reduced to attempted rape]; see also People v. Hamlin (2009) 170
Cal.App.4th 1412, 1454 [citing section 1159 as creating an obligation to instruct on attempt].)*
*Editor’s note: Technically, because the language of section 1159 does not require an attempt to be a lesser
included offense, there is no reason to justify the giving of an attempt instruction (or the reduction of a
conviction to an attempt) on the basis that it is a lesser included offense. However, treating all attempts as a
lesser included offense of any crime ensures the same outcome as saying the defendant may always be
convicted of an attempt of the charged crime.
Nevertheless, the court in People v. Bailey (2012) 54 Cal.4th 740 held that “where the attempted
offense includes a particularized intent that goes beyond what is required by the completed offense,” the
general principle that attempt is a lesser included offense of any completed crime, is not applicable. (Id.
at p. 753 [finding that an appellate court could not reduce a conviction for escape from prison to an
attempted escape from prison after finding insufficient evidence to support a conviction for escape
because an attempt to escape contains a specific intent element not present in escape and thus is not a
lesser included offense]; accord People v. Mendoza (2015) 240 Cal.App.4th 72, 82–83 [relying on
Bailey to find court had no duty to instruct on uncharged attempted versions of sexual intercourse, oral
copulation, and sodomy with a child under 10 where charged versions of the completed offense were all
general intent crimes]; People v. Braslaw (2015) 233 Cal.App.4th 1239, 1247-1251 [relying on Bailey
to find trial court has no duty to instruct on attempted rape of intoxicated person where only rape of
intoxicated person charged because attempted rape requires specific intent and rape is a general intent
crime].)
*Editor’s note: The California Supreme Court in Bailey recognized that prior cases had implied that
attempt is always a lesser included offense of a completed crime, but sloughed them off with the observations
that “[w]e must not generalize in the law of attempt” and that “[t]he law of ‘attempt’ is complex and fraught
with intricacies and doctrinal divergences.” (People v. Mendoza (2015) 240 Cal.App.4th 72, 82 citing to
Bailey at p. 573.)
“[W]hen the completed offense is a general intent crime, an attempt to commit that offense does not
meet the definition of a lesser included offense under the elements test because the attempted offense
includes a specific intent element not included in the complete offense.” (People v. Hamernik (2016)
1 Cal.App.5th 412, 423; People v. Ngo (2014) 225 Cal.App.4th 126, 156–157.)* “Attempts are only
lesser included offenses if the sole distinction between the attempt and the completed offense is
completion of the act constituting the crime.” (People v. Braslaw (2015) 233 Cal.App.4th 1239, 1248
citing to People v. Ngo (2014) 225 Cal.App.4th 126, 156; accord People v. Strunk (1995) 31
Cal.App.4th 265, 271, 36 Cal.Rptr.2d 868 [“an attempt is a specific intent crime and does not fit within
the definition of a necessarily included offense of a general intent crime”].)
55
*Editor’s note: In People v. Ngo (2014) 225 Cal.App.4th 126, the court qualified its statement (“when the
completed offense is a general intent crime, an attempt to commit that offense does not meet the definition of
a lesser included offense under the elements test because the attempted offense includes a specific intent
element not included in the complete offense”) by noting it did not intend to say that “a general intent crime
can never include the attempted offense as a lesser included offense” and cited to People v. Atkins (2001)
25 Cal.4th 76, 88 [“attempted rape, a specific intent crime, is a lesser included offense of rape, a general
intent crime”], People v. Martinez (1999) 20 Cal.4th 225, 241 [kidnapping reduced to attempted
kidnapping], and People v. Kelly (1992) 1 Cal.4th 495, 528 [rape reduced to attempted rape]. (Ngo at p.
156, fn. 18, emphasis added by IPG.) However, in People v. Braslaw (2015) 233 Cal.App.4th 1239, the
court indicated that a general intent crime would never include an attempt as a lesser included offense
under the elements test: “Neither the dicta in Atkins nor the expedient charge reduction in Kelly persuades
us the analytical framework set out in Bailey is not controlling. Both Atkins and Kelly significantly
predate Bailey, and neither applies the elements test set forth in that case. (Braslaw at p. 1252.) The
reduction of kidnapping to attempted kidnapping of a child under 14 in People v. Martinez (1999) 20
Cal.4th 225, 241 was done without analysis of whether it was a lesser under the elements test and also predated Bailey.
Accordingly, here is the bottom line:
Deciding whether to give an instruction or whether an instruction should have been
given: If an attempt is a lesser included offense under either the elements test or the accusatory
pleading test (e.g., where the crime itself has a mental state that is not distinct from the mental state
necessary to commit the attempted crime), and “there is evidence that would absolve the defendant from
guilt of the charged offense but would support a finding of guilt of attempt to commit the charged
offense, an instruction on attempt is mandatory.” (People v. Ngo (2014) 225 Cal.App.4th 126, 155;
People v. Hamlin (2009) 170 Cal.App.4th 1412, 1454, emphasis added by IPG.) If an attempt is not a
lesser included offense under the elements test (i.e., because it contains a mental state element that is
distinct from the mental state necessary to commit the crime itself), then no instruction on attempt need
be given. (See People v. Braslaw (2015) 233 Cal.App.4th 1239, 1247 [“trial court has no sua sponte
duty to instruct on attempt unless it is also a lesser included offense”].) Although if the charging
language itself renders an attempt a lesser included offense, an instruction on an attempt should be
given if otherwise warranted.
*Editor’s note (I of II): Presumably, the rule preventing a court from giving instructions on uncharged
attempted crimes that are not lesser included offenses of the charged crime, notwithstanding the disjunctive
language of section 1159, is based on a rationale that giving such an instruction would violate the state
constitutional due process requirement of notice, i.e., a defendant only has notice of those crimes (including
attempts) whose elements are necessarily included in the charged offense. (See People v. Bailey (2012) 54
Cal.4th 740, 751-752.) This rationale would not apply to prevent the giving an instruction on attempt when
the language of the accusatory pleading itself, however, provided notice defendant could be convicted of an
attempt.
56
*Editor’s note (II of II): This was recognized in People v. Bailey (2012) 54 Cal.4th 740, where the
defendant was charged in the statutory language of Penal Code section 4530, which alleged the defendant did
“willfully and unlawfully escape and attempt to escape from CORRECTIONAL TRAINING FACILITY.” (Id.
at p. 751.) However, because, in Bailey, the court was not being asked the question of whether a jury should
have been instructed on attempt, but simply whether an appellate court could find defendant guilty of
attempted escape after reversal for insufficiency of the evidence on an attempted escape, the court believed it
could only consider whether an attempted escape was a lesser included offense under the elements test as the
accusatory pleading is not used in that context. (Id. at pp. 751-752.) Things were complicated in Bailey
because if both escape and attempted escape violate section 4530 and both were charged in a single count as
alternative theories of liability, then arguably, an instruction on attempted escape was required regardless of
whether it was a lesser included offense! (See this IPG, question 5-E at p. 22.) However, since the
prosecution in Bailey tried the charge of violating section 4530 solely as an escape, the trial court did not
instruct on attempt to escape, and the jury was never required to make a finding of specific intent to escape,
the Bailey court did not have to delve into this issue. (Id. at p. 752.)
Deciding whether to reduce a conviction to an attempt after a finding of insufficient
evidence on the completed offense: If an attempt is a lesser included offense under the elements
test, a court can reduce a conviction for a charged offense to a conviction for the attempted offense.
However, it is irrelevant whether an attempt was a lesser included offense of the charged offense under
the accusatory pleading test. (See People v. Bailey (2012) 54 Cal.4th 740, 751-753.) If the attempted
crime is not a lesser included offense under the elements test (e.g., when the mental state for the
attempted offense is distinct from the mental state for the offense itself), the court may not reduce a
conviction on appeal to an attempted offense even if the accusatory pleading would have required the
prosecution to prove the additional element (e.g., the mental state) needed to make an attempted
version of the offense a lesser included offense.
Deciding whether a defendant may stand convicted of both the attempted offense and
offense itself: If defendant has suffered convictions for both a charged attempted version of the crime
and the charged crime itself, the conviction for the attempted version must be dismissed if the attempted
version of the offense is a lesser included offense of crime itself as determined under the elements test.
If the charged attempted crime has the same elements as the charged substantive crime under the
accusatory pleading test, but not the elements test, then both convictions should be able to stand. (See
People v. Bailey (2012) 54 Cal.4th 740, 751 [“the rule prohibiting multiple convictions of charged
offenses, the legal elements test, rather than the accusatory pleading test, is used to determine whether
an offense is necessarily included within another”].)
Editor’s note: Of course, a conviction for attempting to commit the substantive offense would have to be
stayed per Penal Code section 654 (which prohibits multiple punishment) if the defendant was also separately
charged and convicted of the substantive offense. (See People v. Reed (2006) 38 Cal.4th 1224, 1227.)
57
A.
Should an instruction on attempt be given when the law does not
recognize an attempt to the substantive crime as a crime? Or when
the substantive crime itself prohibits attempts?
No instruction on an attempt to commit a crime (as a lesser included offense or otherwise) should be
given where the law does not recognize an attempt to commit the crime as a crime. (See e.g., People v.
Toledo (2001) 26 Cal.App.4th 221, 232, fn. 7 [noting courts have held that because an attempt requires
that a defendant act with the specific intent to commit the attempted crime, "a defendant cannot be
convicted of attempting to commit a substantive crime that by definition must be committed
unintentionally"]; People v. Johnson (1996) 51 Cal.App.4th 1329, 1332 [no crime of attempted
involuntary manslaughter because it would be based on “inherently contradictory” premise that one can
intend to commit an unintentional killing]; People v. Broussard (1977) 76 Cal.App.3d 193, 197
[same]; People v. Bland (2003) 28 Cal.4th 313, 327-328 [no crime of an attempted “implied malice
murder” because a defendant need not intend to kill to be found guilty of an implied malice murder but
must intend to kill to be guilty of attempted murder]; In re Kent W. (1986) 181 Cal.App.3d 721, 724 [no
crime of attempting to unintentionally set fire (Pen. Code § 452)]; In re James M. (1973) 9 Cal.3d 517,
519 [no crime of attempted assault]; People v. Duens (1976) 64 Cal.App.3d 310, 314-315 [no crime of
attempted assault to commit rape]; cf., People v. Saephanh (2000) 80 Cal.App.4th 451, 461 [crime of
attempted solicitation exists].)
Moreover, certain statutes incorporate attempts to commit the crime into the crimes themselves. (See
e.g., Pen. Code, §§ 455 [punishing “person who willfully and maliciously attempts to set fire to or
attempts to burn or to aid, counsel or procure the burning of any structure, forest land or property, or
who commits any act preliminary thereto, or in furtherance thereof”]; 470 [“every person who . . . passes
or attempts or offers to pass . . ..]; Health & Saf. Code, § 11352 [punishing “every person who . . .
attempts to import into this state or transport” various controlled substances].) In that circumstance,
when the prosecution is seeking a conviction on the “attempt” provision of the substantive crime,
instructions must be given on “attempt” as part of the instruction on the elements of the charged crime
itself. But no lesser included instruction on “attempting to attempt a crime” should be given.
Editor’s note: See this IPG at question 43-B at pp. 82-84 for a discussion of when a conviction can be
reduced after verdict to an attempt.
14. Is being an accessory to a felony ever a lesser included
offense of the felony?
Being an accessory to a felony is not a lesser included offense of the felony where guilt as a principal is
alleged. (See People v. Markus (1978) 82 Cal.App.3d 477, 481; see also People v. Majors (1998)
58
18 Cal.4th 385, 408 [the crime of being an accessory after the fact is not a lesser included offense of
murder]; People v. Preston (1973) 9 Cal.3d 308, 319 [same].)
15. If the prosecution is proceeding against the defendant on a
natural and probable consequences theory of guilt, is a
defendant entitled to instructions on necessarily lesser
included offenses of the alleged “reasonably foreseeable”
offense?
“[U]nder Penal Code section 31 an aider and abettor is liable vicariously for any crime committed by the
perpetrator which is a reasonably foreseeable consequence of the criminal act originally contemplated by
the perpetrator and the aider and abettor. It follows that an aider and abettor may be found guilty of a
lesser crime than that ultimately committed by the perpetrator where the evidence suggests the ultimate
crime was not a reasonably foreseeable consequence of the criminal act originally aided and abetted, but
a lesser crime committed by the perpetrator during the accomplishment of the ultimate crime was such a
consequence. Accordingly, even when necessarily included offense instructions are not required for the
perpetrator because the evidence establishes that, if guilty at all, the perpetrator is guilty of the greater
offense, the trial court has a duty to instruct sua sponte on necessarily included offenses
for the aider and abettor if the evidence raises a question whether the greater offense is
a reasonably foreseeable consequence of the criminal act originally contemplated and
abetted, but would support a finding that a lesser included offense committed by the
perpetrator was such a consequence.” (People v. Woods (1992) 8 Cal.App.4th 1570, 15771578.)
“However, the trial court need not instruct on a particular necessarily included offense if the evidence is
such that the aider and abettor, if guilty at all, is guilty of something beyond that lesser offense, i.e., if the
evidence establishes that a greater offense was a reasonably foreseeable consequence of the criminal act
originally contemplated, and no evidence suggests otherwise.” (People v. Woods (1992) 8 Cal.App.4th
1570, 1578.)
16. In a felony-murder case, if the defendant is not charged with
the substantive felony itself, does a judge have a sua sponte
obligation to instruct on lesser offenses of the substantive
felony?
The sua sponte duty to instruct on lesser included offenses does not extend to uncharged offenses
relevant only as predicate offenses under the felony-murder doctrine or a special circumstance
allegation. (People v. Brooks (2017) [2017 WL 1046456] at p. *41 [no duty to instruct on felony
assault as lesser included of torture in torture where torture was not separately charged in special
59
circumstances torture-murder case]; People v. Kelly (2007) 42 Cal.4th 763, 792 [finding no duty to
instruct on theft where defendant charged with murder under theory it was committed during the
commission of a robbery, but robbery was not charged]; People v. Valdez (2004) 32 Cal.4th 73, 110111 [same]; People v. Seaton (2001) 26 Cal.4th 598, 670 [same]; People v. Silva (2001) 25 Cal.4th
345, 371 [same]; People v. Cash (2002) 28 Cal.4th 703, 736-737 [same rule regardless of whether
felony-murder is charged as a special circumstance].)
The same rule does not hold true where the felony supporting the felony-murder theory is separately
charged. Thus, in People v. Ledesma (2006) 39 Cal.4th 641, the court held it was error to fail to
instruct on theft as a lesser included offense of robbery where defendant was charged with robbery, and
with first degree felony murder based, in part, on a robbery-murder theory, and with a robbery special
circumstance. (Id. at pp. 715-717 [albeit finding error only required reversal of robbery conviction and
robbery special circumstance but not first degree murder as it was clear jury convicted defendant of first
degree murder on theory of premeditation].)
However, if the defendant requests an instruction on a lesser included offense of the underlying felony
in a felony-murder case, the court should give it if it is supported by substantial evidence.
17. Should a court instruct on lesser included enhancements of
other enhancements?
There is no sua sponte obligation to instruct on so-called “lesser included enhancements.” (People v.
Majors (1998) 18 Cal.4th 385, 410.)
However, there is such a thing as a lesser included enhancement of an enhancement. (See People v.
Majors (1998) 18 Cal.4th 385, 410-411.) Although enhancements are not strictly “crimes” or “offenses,”
courts have found the rationale behind allowing convictions for lesser included offenses applies equally
to lesser included enhancements. (In re A.L. (2015) 233 Cal.App.4th 496, 500; People v. Allen
(1985) 165 Cal.App.3d 616, 627.) And courts routinely have acknowledged that some enhancements are
“lesser includeds” of other enhancements, usually where the defendant is charged with use and the court
seeks to impose an arming enhancement after finding insufficient evidence of use, or where the
defendant has been charged with a crime allowing for a use enhancement but is only convicted of a
lesser included to which the use enhancement would not apply. (See In re A.L. (2015) 233 Cal.App.4th
496, 502 [trial court properly allowed amendment of juvenile petition to replace enhancement of being
armed with a deadly or dangerous weapon in violation of Penal Code section 12022(a) with personally
using a firearm in the commission of a felony in violation of Penal Code section 12022(b) because latter
was lesser included of former under accusatory pleading test]; People v. Fialho (2014) 229
Cal.App.4th 1389, 1398-1399 [trial court properly imposed former Penal Code section 12022.5(a)
firearm use enhancement after determining that the Penal Code section 12022.53(d) enhancement
where jury improperly instructed the latter enhancement could apply to voluntary manslaughter];
60
People v. Dixon (2007) 153 Cal.App.4th 985, 1001-1002 [personal-use-of-a-deadly-weapon
enhancement is a lesser included offense of a personal-use-of-a-firearm enhancement]; People v.
Lucas (1997) 55 Cal.App.4th 721, 743 [by finding use enhancement, jury necessarily found that
defendant was armed]; People v. Turner (1983) 145 Cal.App.3d 658, 683 [armed enhancement
necessarily included in use enhancement]; People v. Allen (1985) 165 Cal.App.3d 616, 627 [reducing
Penal Code section firearm use enhancement to a former Penal Code section 12022(a) arming
enhancement after finding insufficient evidence to support the use enhancement].)
In People v. Fialho (2014) 229 Cal.App.4th 1389, the court held that the enactment of Penal Code
1170(e)(1), which mandates that all enhancements “be alleged in the accusatory pleading and either
admitted by the defendant in open court or found to be true by the trier of fact,” did not preclude the
imposition of “lesser included enhancements” when the charged enhancement is either factually
unsupported or inapplicable to the offense of conviction. (Id. at p. 1397.)
Bottom line: If a defendant requests an instruction on a lesser included enhancement, it probably
should be given if supported by substantial evidence.
18. Can a jury consider multiple special circumstances if one
special circumstance is a “lesser included” special
circumstance of the other?
In People v. Montes (2014) 58 Cal.4th 809, the defendant was convicted of murder and the jury found
true all three special circumstances alleged against defendant: murder in the commission of (1) a robbery
(§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)); (2) a kidnapping for robbery (id., former subd.
(a)(17)(ii), now subd. (a)(17)(B)); and (3) a kidnapping (ibid.).” (Id. at p. 874.) The defendant
contended that since simple kidnapping is a lesser included offense of kidnapping for robbery, “the
simple kidnapping special circumstance should be reversed because multiple convictions may not be
based on necessarily included offenses arising out of a single act or course of conduct.” (Ibid.) The
defendant then argued “the death judgment must be reversed because the jury wrongly considered three,
rather than two, special circumstances at the penalty phase” and “the inclusion of the third special
circumstance allegation made a death sentence more likely.” (Ibid.) However, the Montes court
refused to modify the verdict to strike the kidnapping special circumstance or reverse the death
sentence. The Montes court noted the absence of any case law where a “special circumstance finding
ha[d] been reversed for being necessarily included within another special circumstance” or any reason
“for bringing special circumstances under the necessarily included offense rule beyond the unfounded
assumption that special circumstances should be treated as being identical to criminal offenses in all
contexts.” (Ibid.) The Montes court observed, inter alia, that “special circumstances are a unique class
created by statute (§ 190.2)” and declined “to extend to them a judicially created rule that has previously
been applied only to crimes. (Id. at pp. 874-875; but see this IPG memo, question 17 at pp. 60-61
[noting the existence of lesser included enhancements].)
61
19. Is a court required to give lesser included offenses of crimes
alleged as aggravating factors in the penalty phase of a capital
trial?
In a capital case, “instructions on the elements of the offenses presented under section 190.3, factor (b)
are not required in the absence of a request by counsel.” (People v. Guerra (2006) 37 Cal.4th 1067,
1147.) “[C]ounsel may request instruction on the elements of offenses presented under section 190.3,
factor (b).” (People v. Butler (2009) 46 Cal.4th 847, 868 citing to People v. Guerra (2006) 37
Cal.4th 1067, 1147.) However, it has not yet been decided “whether a trial court is ever obligated to
instruct on lesser offenses requested by trial counsel at a penalty phase." (People v. Butler (2009) 37
Cal.4th 1067, 1147, citing to People v. Guerra (2006) 37 Cal.4th 1067,1148.)
20. Do the rules governing the giving of necessarily included
lesser offenses apply to crimes divided into degrees?
It does not appear that any distinction is drawn between “lesser included offenses” and different degrees
of a crime for purposes of analyzing whether a lesser degree of a crime should be given. (See People v.
Sanchez (2001) 24 Cal.4th 983, 992 [rejecting notion that factors relating to the degree of an offense
necessarily would destroy its character as a lesser included offense].)
21. Should a lesser included offense be given if it is an infraction?
Although a person charged solely with an infraction is not entitled to a jury trial (Pen. Code, § 19.6), “a
jury may find a defendant ‘guilty of any offense, the commission of which is necessarily included in that
with which he is charged.’ (Pen. Code, § 1159.) Therefore, lesser included infractions are perforce tried
to the jury whenever a felony or misdemeanor is tried. Because a jury may find a defendant guilty of a
lesser included offense, the court must instruct on it, regardless of whether it is an infraction. (People v.
Walker (2015) 237 Cal.App.4th 111, 116-117.)
22. Should a lesser included offense be given if it would be
barred by the statute of limitations?
Under Penal Code section 805(b), “[t]he limitation of time applicable to an offense that is necessarily
included within a greater offense is the limitation of time applicable to the lesser included offense,
regardless of the limitation of time applicable to the greater offense.” (Pen. Code, § 805(b).)
“Where one offense is a lesser included of another offense, but the statute of limitations has run on the
lesser-included offense, the defendant may be charged with and prosecuted for the greater offense.
62
However, if the jury acquits the defendant of the greater offense, the time barred lesser included offense
must be reversed. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 376; People v. Sedillo (2015)
235 Cal.App.4th 1037, 1049; People v. Vallerga (1977) 67 Cal.App.3d 847, 882; People v. Morgan
(1977) 75 Cal.App.3d 32, 35–36, 40.)
“[A] defendant who has been timely charged with a felony offense may assert the statute of limitations as
a defense to prevent conviction of a time-barred lesser included misdemeanor offense.” (People v.
Terry (2005) 127 Cal.App.4th 750, 767; see also People v. Sedillo (2015) 235 Cal.App.4th 1037,
1050 [where jury acquits a defendant of a premeditation finding on an attempted premeditated murder
charge and the statute of limitations has run on the attempted murder charge, the attempted murder
convictions must be dismissed].)
Thus, in general, even if there exists evidence to support the giving of a lesser included offense, the court
should not instruct on the lesser included offense if it is barred by the statute of limitations. (See
People v. Beasley (2003) 105 Cal.App.4th 1078, 1089-1090; People v. Whitfield (1993) 19
Cal.App.4th 1652, 1658.) For example, if a defendant commits a murder in 1980 but he is not charged
with the murder until 1995, the six-year statute of limitations would have run on a charge of voluntary
manslaughter and no voluntary manslaughter instruction should be given.
However, if both parties agree to allowing the jury to consider a time-barred lesser included offense, a
court may be able to instruct on that otherwise barred lesser included offense. (Cf., People v. Cowans
(1996) 14 Cal.4th 367, 376 [permitting plea agreement to time-barred lesser included offense where
there was a waiver]; People v. Babaali (2009) 171 Cal.App.4th 982, 1000 [“conviction by jury of an
uncharged lesser related offense is proper if both parties consent to permitting the jury to consider that
option, citing to People v. Birks (1998) 19 Cal.4th 108, 136-137].)
Moreover, a defendant may be entitled to entitled to instructions on a lesser included offense that is
barred by the statute of limitations where the defendant requests such an instruction and is willing to
waive the statute of limitations defense. (See People v. Overman (2005) 126 Cal.App.4th 1344, 1359
[finding it error for the trial court to refuse to give a time-barred lesser included instruction without
attempting to elicit a defendant’s express waiver of the limitations period defense];see also Spaziano
v. Florida (1984) 468 U.S. 447, 456 [in capital case where lesser included offenses are time-barred,
“defendant should be given a choice between having the benefit of the lesser included offense instruction
or asserting the statute of limitations on the lesser included offenses”]; People v. Jensen (2003) 114
Cal.App.4th 224, 245 [remanding a case for retrial with directions suggesting a defendant would be
entitled to instructions on time-barred necessarily lesser included offenses if the defendant waived the
statute of limitations]; see also In re Elijah C. (2016) 248 Cal.App.4th 958, 962 [“cases have held that
a defendant represented by counsel may waive the statute of limitations as a tactical consideration,
typically to allow a jury to consider a lesser included offense that would otherwise be time barred.”].)
63
The implication in People v. Overman (2005) 126 Cal.App.4th 1344 is that the defendant would be
entitled to a time-barred lesser included offense even if the prosecution objected - albeit no
mention was made in Overman of whether the prosecution had objected to the giving of the
instruction. Certainly though, the People would have an equitable argument that no such instruction
should be given when the defense waits until the end of the case to request such an instruction since the
People may have tried the case on the assumption that the lesser included instruction was time-barred.
On the other hand, if the court instructs on a lesser included offense which is barred by the statute of
limitations, and the defendant either acquiesces to the instruction or asks for the instruction, the
defendant forfeits any right to complain of conviction of that lesser included offense on appeal. (People
v. Stanfill (1999) 76 Cal.App.4th 1137, 1150.) The California Supreme Court has acknowledged the
Stanfill holding without disapproval. (People v. Simon (2001) 25 Cal.4th 1082, 1104, fn. 15.)
Nevertheless, the prosecution should make sure that such acquiescence or request is made explicit. (See
People v. Beasley (2003) 105 Cal.App.4th 1078, 1089-1090 [where record is silent, court will not
assume forfeiture of right to raise statute of limitations defense on appeal].)
23. Should the grand jury be given instructions on potential
lesser included offenses?
“The People have no sua sponte duty to instruct the grand jury on a lesser included offense.” (Mason v.
Superior Court (2015) 242 Cal.App.4th 773, 783.) “[U]nless the grand jury specifically requests an
instruction on lesser included offenses, the prosecutor is not required to so instruct in every case.”
(Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1036.)
24. Should the trial judge give an instruction on a lesser included
offense regardless of whether the defense asks for the
instruction or objects to the giving of such an instruction?
A trial court must instruct on all lesser included offenses supported by the evidence even over the
defendant’s objection. (People v. Prince (2007) 40 Cal.4th 1179, 1265; People v. Barton (1995) 12
Cal.4th 186, 195-196; People v. Rios (2000) 23 Cal.4th 450, 464.) The duty to instruct sua sponte on
lesser included offenses is not even satisfied by instructing on only one theory of an offense if other
theories are supported by the evidence. This obligation exists regardless of whether the defendant does
not request the instruction or objects to it being given. (People v. Lee (1999) 20 Cal.4th 47, 61; accord
People v. Koontz (2002) 27 Cal.4th 1041, 1086, fn. 7 [noting that a defendant’s objection to the giving
of a lesser included offense instruction supported by the evidence would not preclude a finding of error
where the judge failed to give the instruction albeit “in some circumstances an objection might invite
any error”]; see also People v. Chaney (2005) 131 Cal.App.4th 253, 256, fn. 5 [suggesting without
deciding whether invited error doctrine would preclude defendant from raising issue of failure to
64
instruct on lesser included offense where defense specifically declined such an instruction]; but see
People v. Golde (2008) 163 Cal.App.4th 101, 115 [calling case law on “i`nvited error” inapposite to
question of whether it was error for a court to fail to give a lesser included instruction when the defense
expressly asked that no instruction be given].)
Editor’s note: See this IPG at question 41-A at pp. 79-80 for a more comprehensive discussion of the
invited error doctrine.
25. Should the trial judge give an instruction on a lesser included
offense regardless of whether the prosecutor asks for the
instruction or objects to the giving of such an instruction?
This rule requiring a judge to instruct on all lesser included offenses when substantial evidence exists to
support the giving of the instruction holds true when the prosecutor fails to request or objects to the
giving of the instruction. (See People v. Birks (1998) 19 Cal.4th 108, 112, 118.)
26. Should the trial judge give an instruction on a lesser included
offense even if the lesser included offense is inconsistent with
the defendant’s theory of defense?
If the lesser included offense is warranted by the evidence, it does not make a difference whether it is
inconsistent with defendant’s theory of the case. (See People v. Banks (2014) 59 Cal.4th 1113, 1160
People v. Breverman (1998) 19 Cal.4th 142, 154, 163; People v. Barton (1995) 12 Cal.4th 186, 202;
People v. Gutierrez (2009) 45 Cal.4th 789, 826.)
For example, in People v. Breverman (1998) 19 Cal.4th 142, the California Supreme Court indicated
that, in a homicide case, where there is substantial evidence of heat of passion or unreasonable selfdefense, there is a duty to instruct even though the defendant claims the killing was accidental or that
the state of mind upon which these theories depend was absent. (Id. at p. 163, fn. 10.)
There is one caveat to this general rule: There is a line of cases which appear to hold that where a
defendant gets up on the stand and denies any complicity in the crime charged, and thus lays no
foundation for any verdict intermediate between “not guilty” and “guilty as charged,” no instruction on
lesser offenses should be given. (See People v. Sinclair (1998) 64 Cal.App.4th 1012, 1015-1020 [and
cases cited therein]; People v. Chestra (2017) 9 Cal.App.5th 1116 [2017 WL 1034537, at *8] [discussed
in this IPG, question 12-C at p. 42]; see also People v. Gutierrez (2003) 112 Cal.App.4th 704, 709
[“Generally, when a defendant completely denies complicity in the charged crime, there is no error in
failing to instruct on a lesser included offense.”]; People v. Leach (1985) 41 Cal.3d 92, 106 [defendant
who denied taking part in a robbery was not entitled to lesser included grand theft instruction]; People
v. Trimble (1993) 16 Cal.App.4th 1255, 1260 [defendant who denied committing vehicular burglary was
65
not entitled to lesser included auto tampering instruction]; People v. Medina (1978) 78 Cal.App.3d
1000, 1005-1006 [defendant who relied on alibi defense to murder was not entitled to diminished
capacity instructions]; People v. Salas (1978) 77 Cal.App.3d 600, 607-608 [defendant relying on alibi
defense to robbery was not entitled to a simple assault instruction]; People v. Whalen (1973) 33
Cal.App.3d 710, 718 [no error in failing to instruct on assault with a deadly weapon where defendant,
charged with assault with a deadly weapon on a police officer, denied pointing a gun at the officer].)
However, even in People v. Sinclair (1998) 64 Cal.App.4th 1012, the court cautioned that it was not
suggesting “that every time the accused completely denies under oath any participation in the charged
homicide, there is no duty to instruct on lesser and necessarily included offenses.” (Id. at p. 1020.) The
court recognized that “bright lines are difficult to draw” and that “the accused may confess or ma[k]e
admissions which indicate the fatal shooting occurred, for example, in the heat of passion. If the
confession in which the accused admits shooting the deceased is presented to the jury, then it may be
pertinent to the case in terms of conflicting evidence as to what occurred. There are no doubt other
scenarios in which a defendant’s under oath denial she or he committed a homicide may be colored by
other testimony, which creates substantial evidence sufficient to support manslaughter instructions.”
(Ibid; People v. Chestra (2017) 9 Cal.App.5th 1116 [2017 WL 1034537, at *8].)
The safer course is for the court to give the lesser instructions whenever there exists substantial evidence
for them (see People v. Elize (1999) 71 Cal.App.4th 605, 615), regardless of the defendant’s testimony
- albeit keeping in mind that when a defendant testifies in a manner completely inconsistent with
conviction on a lesser included offense, this will often be dispositive of the issue of whether there is
substantial evidence which would absolve the defendant from guilt of the greater offense but not the
lesser.
27. What is a “lesser related offense?
A lesser related offense is an offense shown by evidence introduced at trial to prove or disprove an
element of the charged offense, and which is not a lesser included offense but is closely and inherently
related to the charged offense. (See People v. Geiger (1984) 35 Cal.3d 510, 519-532.)
The difficulty in defining what constituted a “lesser related offense” was one of the reasons given in
People v. Birks (1998) 19 Cal.4th 108, for overruling Geiger and, consequently, rendering obsolete
the concept of courts giving instructions on “lesser related offenses.” (Birks at pp. 130-131.)
28. If the defense requests the jury be instructed on a lesser
related offense, should the court give the instruction?
In People v. Birks (1998) 19 Cal.4th 108, the California Supreme Court overruled its previous decision
in People v. Geiger (1984) 35 Cal.3d 510, which had held that, in certain situations, the defendant had
66
a right to instructions on offenses that were related to (but not lesser included offenses of) the greater
offense. (Birks, at pp. 116-118.) The Birks court held that a trial court should not give an instruction
on a lesser related offense absent a stipulation by both the defendant and the prosecution. (Id. at pp.
116-118.) The Birks court reasoned that “allowing the defendant to obtain instructions on lesser
uncharged and unincluded offenses interferes impermissibly ‘with ... the prosecutor’s discretionary
function to select the offenses of which the defendant may be charged and convicted.’” (Id. at p. 123.)
There is no right to lesser related offenses under the federal Constitution. (See Hopkins v. Reeves
(1998) 524 U.S. 88, 95-99 [holding jury instructions on “lesser related offenses” are not constitutionally
required]; People v. Foster (2010) 50 Cal.4th 1301, 1343 [‘[T]here is no federal constitutional right of
a defendant to compel the giving of lesser-related-offense instructions.”].)
The rule prohibiting the giving of lesser related instructions absent stipulation of both parties applies
even when the lesser related offense instruction is tied to the defense theory of the case. In People v.
Valentine (2006) 143 Cal.App.4th 1383, the defendant acknowledged that receiving stolen property
was not a lesser included offense of robbery but argued that he was entitled to an instruction on
receiving stolen property because “the omission amounted to a failure to instruct on a defense theory that he received property he knew to be stolen but that he did not steal it.” (Id. at p. 1386.) The court
heartily rejected this argument. (Id. at p. 1387.)
The rule prohibiting the giving of lesser related instructions absent stipulation of both parties applies
even when an instruction on the lesser related offense is supported by the evidence. (People v. Kraft
(2000) 23 Cal.4th 978, 1064.)
A.
Can a court refuse to give a lesser-related instruction even when
both parties request it?
Even though a court is authorized to give a lesser related instruction, the court is not obligated to do so
regardless of whether the prosecution and the defense agree to it being given. (People v. Hall (2011)
200 Cal.App.4th 778, 783.)
B.
Can a trial court modify a verdict to reflect a conviction for a lesserrelated offense?
A trial court lacks the power (under Penal Code section 1181) to modify a verdict to reflect conviction of a
lesser related offense. (People v. Babaali (2009) 171 Cal.App.4th 982, 1000, citing to People v.
Lagunas (1994) 8 Cal.4th 1030, 1032.)
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C.
Does the rule barring instruction on lesser-related offenses apply
when the lesser-related offense is charged?
The rule prohibiting a court from giving instructions on uncharged lesser related crimes unless agreed to
by the parties is inapplicable when it comes to charged lesser related offenses. (See People v.
Batchelor (2014) 229 Cal.App.4th 1102, 1116.)
D.
If a defendant is convicted of a charged lesser related offense in one
trial, but the greater related offense has to be retried, is the
defendant entitled to either an instruction on the lesser related
offense and/or to introduce evidence of the prior conviction on the
lesser related offense?
If a defendant has been found guilty of one offense in a trial but the jury hung on a greater related
offense, and the defendant is later retried on the greater related offense, there is no duty to re-instruct on
the lesser offense for which defendant was convicted. However, the jury should be informed the
defendant was convicted of the earlier lesser-related offense. This was illustrated in the circumstances
existing in People v. Batchelor (2014) 229 Cal.App.4th 1102. In Batchelor, the defendant crashed
his car while driving under the influence of alcohol. The crash killed his passenger. The defendant was
charged with both gross vehicular manslaughter while intoxicated and murder based on the same
incident. In the first trial, the jury hung on murder charge but convicted on the manslaughter charge.
At the second trial on the murder charge, the defendant requested the jury be told he had previously
been convicted of manslaughter and asked for an instruction on that offense. The trial court denied both
requests. The appellate court held defendant was not entitled to an instruction on the manslaughter
since he had already been convicted of that offense and thus the jury “could not appropriately be asked
to render a verdict with respect to gross vehicular manslaughter, and it would make no sense to instruct
on the elements of that offense.” (Id. at p. 1116.) However, it held the “trial court erred by instructing
defendant’s second jury in a manner that gave the jury the false impression that defendant would be left
entirely unpunished for his actions if the jury did not convict him of murder.” (Id. at p. 1117.) In
People v. Johnson (2016) 6 Cal.App.5th 505, a case involving similar circumstances to those existing
in Batchelor, the court agreed with the conclusion in Batchelor and held it was insufficient to simply
tell the jury in the retrial that defendant had previously been convicted “of two of the three charges
brought by the district attorney,” in the earlier trial because the jury would not know whether defendant
was ever “punished” for the homicide. (Id. at p. 510.) However, in People v. Hicks (2015) 196
Cal.Rptr.3d 638 [rev. gtd March 23, 2016, No. S232218], another case involving the same circumstances
as existed in Batchelor, the court agreed that no jury instruction on manslaughter in the retrial was
required; but the court also held the trial court was not required to inform the jury of the earlier
conviction. (Id. at p. 641.) The California Supreme Court has taken up Hicks on the question of
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“whether the trial court erred when it refused to inform the jury at the retrial of a murder charge that
defendant had been convicted of gross vehicular manslaughter in the first trial,” explicitly citing to
Batchelor. (People v. Hicks (2016) 200 Cal.Rptr.3d 7.)
29. If the evidence exists to show a lesser related offense, can the
court, over a prosecutor’s objection, give an instruction on
the lesser related offense?
A trial court no longer has the ability to instruct on lesser related uncharged offenses unless there is a
stipulation to it being given by both parties or when the parties fail to object to such an instruction.
(People v. Jennings (2010) 50 Cal.4th 616, 668; People v. Batchelor (2014) 229 Cal.App.4th 1102,
1116; People v. Steele (2000) 83 Cal.App.4th 212, 217.) The prosecutor must consent to the giving of
any instruction on a “lesser related” offense in order for the instruction to be given. (People v. Birks
(1998) 19 Cal.4th 108, 136.)
30. Can a court give an instruction on a lesser related offense if
the defense and prosecution both request that it be given?
Yes.
The California Supreme Court specifically pointed out in People v. Birks (1998) 19 Cal.4th 108 that its
decision did “not foreclose the parties from agreeing that the defendant may be convicted of a lesser
offense not necessarily included in the original charge.” (Id. at p. 136, fn. 19.) If both the prosecutor and
the defense agree to permitting the jury to consider the option of convicting of a lesser related offense, a
conviction for the lesser related offense is proper. (People v. Babaali (2009) 171 Cal.App.4th 982,
1000, citing to People v. Birks (1998) 19 Cal.4th 108, 136-137.)
31. Can a defendant be separately charged with both the greater
offense and its necessarily lesser included offense?
A defendant may be charged with both the greater and the lesser offense. (See People v. Ausbie
(2004) 123 Cal.App.4th 855, 859 quoting People v. Pearson (1986) 42 Cal.3d 351, 354 [noting Penal
Code section 954 allows an accusatory pleading to charge “different statements of the same offense”].)
32. Can a defendant be convicted of both a greater offense and its
necessarily lesser included, but separately charged, offense?
Penal Code section 954, in relevant part, provides: “An accusatory pleading may charge two or more
different offenses connected together in their commission, or different statements of the same
offense or two or more different offenses of the same class of crimes or offenses, under separate
counts .... The prosecution is not required to elect between the different offenses or counts set forth in
the accusatory pleading, but the defendant may be convicted of any number of the offenses charged ....”
(Pen. Code, § 954, emphasis added by IPG.)
69
However, “California law prohibits convicting a defendant of two offenses arising from a single criminal
act when one is a lesser offense necessarily included in the other.” (People v. Montoya (2004) 33
Cal.4th 1031, 1033; accord People v. Pearson (1986) 42 Cal.3d 35, 355.)
On the other hand, if separate acts serve as the basis for both the greater and lesser offense, then a
defendant may be convicted of both offenses. (See People v. Greer (1947) 30 Cal.2d 589, 600; In re
Edward G. (2004) 124 Cal.App.4th 962, 970.)
“The question of whether multiple offenses are based on the same act is answered in the same way
regardless of whether the court is considering a stay under section 654 or deciding whether a second
conviction is permissible for a lesser-included offense. In both contexts, the court decides whether the
defendant had one general intention or two or more separate and distinct intentions.” (In re Edward
G. (2004) 124 Cal.App.4th 962, 970.)
The question of whether the acts are the same is a question for the jury, unless as a matter of law the acts
are not divisible. (People v. Greer (1947) 30 Cal.2d 589, 600; In re Edward G. (2004) 124
Cal.App.4th 962, 970.)
Accordingly, it is important that the charging document and/or verdict forms allow the finder of fact to
make it clear that the lesser included offense is based on a distinct act from the greater offense,
otherwise only the conviction on the greater offense will be allowed to stand. For example, in the case of
In re Edward G. (2004) 124 Cal.App.4th 962, a woman named Parra and her cousin were standing in
front the woman’s house when a minor fired two shots at them as he drove by in a car; only Parra was
struck. The defendant was charged with discharging a firearm from a vehicle at Parra in violation of
Penal Code section 12034 and in assaulting Parra with a firearm in violation of Penal Code section
245(a)(2). The juvenile judge found against the minor on both counts, concluded the latter count was
not a lesser included offense of the former count, but stayed the latter count pursuant to Penal Code
section 654. The appellate court held that section 245(a)(2) was a lesser included offense of section
12034 and reversed the section 245(a)(2) conviction. The court rejected the prosecution’s argument
that findings on both were justified because two shots were fired and/or there were two victims. The
court held that since the trial judge had stayed the section 245(a)(2) conviction, he had implicitly found
only a single act; and since Parra was named the victim in both counts, there was no finding of separate
victims. (Id. at pp. 970-971.)
Editor’s note: The holding by the Edward G. court that section 245(a)(2) was a lesser included offense of
section 12034 was later invalidated by the California Supreme Court in People v. Licas (2007) 41 Cal.4th
362. (See this outline, section II at p. 96.)
Editor’s note: Keep in mind that, in assessing whether a defendant can be convicted of a charged lesser
offense, it is not appropriate to use the “accusatory pleading test.” (See People v. Reed (2006) 38 Cal.4th
1224, 1228-1231, and this IPG, question 5-A at p. 16.)
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33. How should the jury be instructed when the lesser included
offense is not charged?
CALCRIM 3517 should be given when lesser included offenses and the greater offenses are not
separately charged and the jury receives guilty and not guilty verdict forms for greater and lesser
offenses in non-homicide cases.
CALCRIM 3518 should be given when lesser included offenses and the greater offenses are not
separately charged but the jury receives only one not guilty verdict form for each count in non-homicide
cases.
Different instructions are required when the defendant is charged with murder or manslaughter,
however. (See CALCRIM instructions 640-643; CALJIC instructions 8.70-8.75; this IPG, question 34 at
p. 73.)
See also CALJIC instructions 17.10 [Conviction of Lesser Included or Lesser Related Offense—Implied
Acquittal—First]]; 17.11 [Conviction of Lesser Degree]; 17.12 [Jury May Return Partial Verdict—NonHomicide—Express Acquittal—First]; 17.49 [Use of Multiple Verdict Forms—Implied Acquittal-First].
In Stone v. Superior (1982) 31 Cal.3d 503, the California Supreme Court held that a “trial court is
constitutionally obligated to afford the jury an opportunity to render a partial verdict of acquittal on a
greater offense when the jury is deadlocked only on an uncharged lesser included offense.” (Id. at p.
519.) To aid trial courts in fulfilling this constitutional obligation, the Stone court suggested the trial
court “provide separate verdict forms for each offense but stressed, ‘[t]he jury must be cautioned, of
course, that it should first decide whether the defendant is guilty of the greater offense before
considering the lesser offense....” (Ibid.)
The “acquittal first” rule of Stone was later clarified by the California Supreme Court in People v.
Kurtzman (1988) 46 Cal.3d 322, a case involving a jury deadlock on the greater offense but not the
lesser. In Kurztman, the court “explained that in all trials of included offenses, ‘the jury must acquit of
the greater offense before returning a verdict on the lesser included offense,’ although it can consider or
discuss the offenses in any order it chooses.” (People v. Anderson (2009) 47 Cal.4th 92, 114 citing to
Kurtzman at p. 330; see also People v. Bacon (2010) 50 Cal.4th 1082, 1110 [noting postKurtzman jury instructions “are designed to prevent the jury from applying a strict acquittal-first rule,
under which the jury would have to acquit of the greater offense before even considering lesser included
offenses”].)
“The acquittal-first rule protects a defendant from retrial when the jury agrees that the greater offense
was not proven but cannot agree on a lesser included offense. Without the rule, a general declaration of
mistrial would disguise the fact that the jury agreed the defendant was not guilty of the greater offense,
making the defendant subject to retrial on both the greater and lesser offenses. (People v. Anderson
(2009) 47 Cal.4th 92, 114.)
71
The California Supreme Court has repeatedly rejected the argument that the “acquittal-first” rule, by
coercing a verdict in favor of the greater offense, violates a defendant’s federal constitutional rights to
due process, jury trial, and the prohibition against cruel and unusual punishment, and their California
constitutional counterparts. (People v. Brooks 2017 WL 1046456 at p. *43 [citing to People v.
Sattiewhite (2014) 59 Cal.4th 446, 479-480; People v. Nakahara (2003) 30 Cal.4th 705, 715; and
People v. Fields (1996) 13 Cal.4th 289, 309-311]; People v. Covarrubias (2016) 1 Cal.5th 838, 906
[citing to, inter alia, People v. Whisenhunt (2008) 44 Cal.4th 174, 222–223 and People v. Riel
(2000) 22 Cal.4th 1153, 1200–1201; see also this IPG, question 40, at p. 79 [discussing standard of
review for Kurtzman error].)
The CALCRIM instructions on lesser included offenses (3517, 3518) explaining how a jury must consider
uncharged lesser included offenses reflect the “acquittal-first” rule.
However, a trial court retains discretion to dispense with instructing the jury on the acquittal first rule
until such time as a jury deadlock arises. (People v. Clark (2016) 63 Cal.4th 522, 608.)
34. How should the jury be instructed when the defendant is
charged with both the greater and lesser offense?
When a defendant is separately charged with both the greater and lesser offense, the jury should be
instructed pursuant to CALCRIM No. 3519. Although the instruction is slightly different than the
instructions that are given the jury regarding uncharged lesser included offenses (see CALCRIMs 3517
and 3518), both kinds of instructions lay out very similar procedures for the jury to follow when deciding
whether to convict of either the greater or lesser offense, i.e., in each instruction, the jury is told to reach
a verdict on the greater offense before coming to a verdict on the lesser offense. (See this IPG memo,
question 33 at p. 71; see also CALJIC instructions 17.10-17.12, 17.49.)
In People v. Blair (1987) 191 Cal.App.3d 832, the court indicated that jurors were not required to
follow the acquittal first rule if the lesser included offense was separately charged. (Id. at pp. 83, 839.)
However, the California Supreme Court in People v. Bacon (2010) 50 Cal.4th 1082 suggested that the
acquittal-first rule applies to alternate counts. (Id. at p. 1110 [rejecting the argument that the jury did
not know it could choose the order of deliberations because “it was not reasonably likely the jury would
have failed to understand that it had the ‘discretion to choose the order of evaluation’ for the alternative
charge of accessory after the fact to murder”]; see also People v. Olivas (2016) 248 Cal.App.4th 758,
774-776 [assuming acquittal first rule applies to separately charged counts, and finding error in the trial
court responding “No” to the jury’s question whether they were “able to consider” a forcible lewd act
count if the jurors were hung on the more severe aggravated sexual assault count instead of telling them
they could consider the counts in whatever order it desired].)
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Different instructions are required when the defendant is charged with murder or
manslaughter, however. In that circumstance, the trial court should give the appropriate homicide
instruction for lesser included offenses: CALCRIM No. 640 [Deliberations and Completion of Verdict
Forms: For Use When Defendant is Charged With First Degree Murder and Jury Is Given Not Guilty
Forms for Each Level of Homicide]; , CALCRIM No. 641 [Deliberations and Completion of Verdict
Forms: For Use When Defendant Is Charged With First Degree Murder and Jury Is Given Only One Not
Guilty Verdict Form for Each Count; Not to Be Used When Both Voluntary and Involuntary
Manslaughter Are Lesser Included Offenses]; CALCRIM No. 642 [Deliberations and Completion of
Verdict Forms: For Use When Defendant Is Charged With Second Degree Murder and Jury Is Given Not
Guilty Forms for Each Level of Homicide]; or CALCRIM No. 643 [Deliberations and Completion of
Verdict Forms: For Use When Defendant Is Charged With Second Degree Murder and Jury Is Given
Only One Not Guilty Verdict Form for Each Count; Not to Be Used When Both Voluntary and
Involuntary Manslaughter Are Lesser Included Offenses]. (See Bench Notes, Judicial Council of
California Criminal Jury Instruction 3519.)
See also CALJIC instructions 8.70-8.75.
35. What should happen when the jury only renders a verdict on
the lesser offense?
“The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I,
section 15 of the California Constitution guarantee that a person may not be placed twice ‘in jeopardy’ for
the ‘same offense.’” (People v. Seel (2004) 34 Cal.4th 535, 541–542.) “[B]ecause greater and lesser
included offenses constitute the ‘same offense’ for double jeopardy purposes. . ., a conviction of a lesser
included offense bars subsequent prosecution of the greater offense.” (People v. Seel (2004) 34
Cal.4th 535, 542.) Penal Code Section 1023 (which is the state statutory double jeopardy bar) also bars
retrial of a greater offense when a jury returns a verdict on the lesser included offense without a
corresponding verdict of acquittal on the greater offense and the verdict of guilt on the lesser offense is
recorded but the jury is discharged without having rendered any verdict on the greater offense, i.e.,
regardless of whether the jury is deadlocked. (People v. Anderson (2009) 47 Cal.4th 92, 114.)
Accordingly, if the jury renders only a verdict of guilty on the lesser offense without any express verdict
on the greater offense, the trial court “should decline to receive the verdict and should direct the jury to
reconsider its lone verdict in light of the acquittal-first rule of People v. Kurtzman.” (People v.
Anderson (2009) 47 Cal.4th 92, 114.)
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36. What should happen when the jury is deadlocked on the
greater offense?
When the jury is properly instructed on the acquittal-first rule and expressly “hangs on the more serious
offense, the prosecution is put to a choice: It may either move for a mistrial and set the entire matter for
a retrial (§§ 1140, 1141), or, if it wishes to accept a verdict on the lesser charge and forgo a chance to
convict on the greater, the prosecution may ask the court to dismiss the greater charge in the interest of
justice (§ 1385).” (People v. Anderson (2009) 47 Cal.4th 92, 114.)
37. Can a jury be instructed on (and defendant convicted of)
more than one lesser included offense when a charge has
multiple lesser included offenses?
“A charged offense may include more than one lesser offense.” (People v. Eid (2014) 59 Cal.4th 650,
656.) “Where a charged offense necessarily includes multiple lesser offenses, it is often the case that the
lesser offenses are, in hierarchical fashion, also lesser included offenses of each other. In such
circumstances, the defendant may be convicted of only one offense because of the rule prohibiting
convictions on both a greater offense and a lesser included offense.” (Id. at p. 656.)
However, in other circumstances, there may be two lesser offenses included within the charged offense,
but neither is a lesser offense of the other. In that circumstance, defendants may properly be convicted
of more than one lesser included offense stemming from a single count. (People v. Eid (2014) 59
Cal.4th 650, 659-661; accord People v. Solis (2015) 232 Cal.App.4th 1108, 1115.)
The latter principle was illustrated in the case of People v. Eid (2014) 59 Cal.4th 650. In Eid, the
defendant and a partner smuggled a wife and a child across the border in exchange for the husband
paying the defendant $4,000 and agreeing to pay another 14,000 in monthly installments. The
defendant kept the wife and child in a motel room while repeatedly asking the husband for more money.
The husband paid the defendant $13,000 but the defendant demanded $14,000 more. The husband did
not have the additional money so the defendant refused to release the wife and child, took their
passports, and threatened to take the wife to someplace else to work to pay off the debt. The wife and
child were eventually freed when police showed up at the motel where they were being kept. The
defendant was charged with kidnapping for ransom but also four lesser included offenses. The jury
found the defendants not guilty on the kidnapping for ransom charges, but guilty of two lesser offenses—
attempted extortion and misdemeanor false imprisonment. The Eid court concluded both lesser
offenses could stand. In coming to its conclusion, the court relied on, inter alia, the fact that “[t]he
purposes underlying the rule requiring instruction on lesser included offenses are served by allowing the
jury to convict on more than one lesser offense if, in the jury's determination, such convictions more
accurately reflect the defendant's culpability in light of the evidence.” (Id. at p. 657.)
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In People v. Solis (2015) 232 Cal.App.4th 1108, the principle adopted in Eid was held to apply in the
unusual circumstance where the parties agreed a jury could be instructed on two lesser related crimes,
neither of which was a lesser included offense of the other. (Solis at pp. 1117–1118.)
The principle adopted in Eid (i.e., that a jury can convict of multiple lesser included offenses of a single
count), however, does not govern the question of whether a reviewing court can uphold convictions for
multiple lesser included offenses after finding insufficient evidence to support the greater offense. (See
this IPG memo, question 43-A at pp. 81-82.)
38. If a defendant is convicted of both the necessarily lesser
included offense and the greater offense, which offense must
be reversed?
Just because a jury is not supposed to convict of both the greater offense and the necessarily lesser
included offense, it still sometimes happens. The question then arises, which offense stands?
The answer is that “[w]hen a defendant is found guilty of both a greater and a necessarily lesser included
offense arising out of the same act or course of conduct, and the evidence supports the verdict on the
greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.”
(People v. Sanders (2012) 55 Cal.4th 731, 736; accord People v. Moran (1970) 1 Cal.3d 755, 763.)
An argument may be crafted that the greater offense should be imposed where a lesser included offense
provides a significantly greater punishment than the greater offense based on some of the rationale
expressed in People v. Schueren (1973) 10 Cal.3d 553. In Schueren, the defendant was charged with
an assault with a deadly weapon with intent to commit murder, in violation of Pen. Code, § 217, which
was, at that time, punishable by imprisonment from 1 to 14 years. The defendant was acquitted of the
charge but convicted of assault with a deadly weapon in violation of Penal Code section 245(a), which, at
that time, was punishable by imprisonment for 6 months to life. The defendant was sentenced on the
violation of section 245(a). (Id. at pp. 553-558.) However, the Supreme Court modified the judgment
and limited the term for which imprisonment could be imposed to 14 years. The Scheuren court
observed that if defendant had pleaded guilty to the charged offense or had been found guilty thereof, his
prison term could not have exceeded 14 years and the possibility of life in prison only arose out of his
assertion of his constitutional rights against self-incrimination and to a jury trial, his successful defense
against the charged crime, and the failure of his defense against the included crime. Under these
circumstances, the court held a term exceeding 14 years amounted to an “unusual” punishment, within
Cal. Const., art. I, § 6, prohibiting cruel or “unusual” punishments. (Id. at pp. 560-562; see also People
v. Cuiriz (2017) 8 Cal.App.5th 744, 755 [characterizing Schueren as holding “that where a defendant
had been convicted of a lesser included offense under the accusatory pleading test for which the
statutory punishment was greater than for the offense charged, the constitutional proscription against
cruel or unusual punishment prohibited imposition of the longer sentence.”].)
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However, this type of argument should not get very far as Schueren expressly limited its reach: “Our
decision should not handicap law enforcement. The People are still free to charge violations of sections
217 and 245 in separate counts. Should a defendant to convicted on both counts thus separately pleaded
Penal Code section 654 precludes multiple punishment for a single act, and normally in order to prevent
multiple punishment the lesser penalty is stayed . . .” (Id. at p. 561.)
39. May a court substitute a lesser included offense for a greater
offense in determining whether to grant a motion for
acquittal pursuant to Penal Code section 1118.1?
“[I]n determining a motion pursuant to Penal Code section 1118.1, the trial judge is entitled to consider
whether, although the evidence is insufficient to establish the commission of the crime specifically
charged in the accusatory pleading, the evidence is sufficient to sustain a conviction of a necessarily
included offense which the evidence tends to prove. A defendant may be convicted of a lesser offense if
he was charged with a felony which included the lesser offense.” (People v. Hamernik (2016) 1
Cal.App.5th 412, 422; People v. Powell (2010) 181 Cal.App.4th 304, 311; People v. Meyer (1985)
169 Cal.App.3d 496, 507 quoting People v. Wong (1973) 35 Cal.App.3d 812, 828.)
A trial court may lose its ability to substitute a lesser included offense if it grants a motion for acquittal of
the greater offense without simultaneously making it clear that its ruling does not apply to the lesser
included offense(s). (See People v. Garcia (1985) 166 Cal.App.3d 1056, 1066-1067; People v.
McElroy (1989) 208 Cal.App.3d 1415, 1423-1424; see also People v. Powell (2010) 181 Cal.App.4th
304, 312 [“Assuming Garcia is correctly decided, the case teaches that a trial court may not resurrect a
charge after defendant has achieved a modicum of repose from prosecution—even if the newly instituted
charge is a lesser included offense.”].)
40. What is the standard on review for error based on failure to
give instructions on lesser included offenses, or on failure to
properly instruct on the “acquittal first rule?”
When a defendant on appeal is claiming the trial court improperly failed to instruct on a lesser included
offense, the appellate court does an independent (de novo) review of the question. (People v. Souza
(2012) 54 Cal.4th 90, 113; People v. Manriquez (2005) 37 Cal.4th 547, 581; People v. Cady (2016) 7
Cal.App.5th 134, 144.) In conducting the review, the reviewing court considers “the evidence in the light
most favorable to the defendant.” (People v. Woods (2015) 241 Cal.App.4th 461, 475; People v.
Millbrook (2014) 222 Cal.App.4th 1122, 1137; People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn.
5.)
In a noncapital case, error in failure to give a sua sponte instruction, or to instruct fully, on all lesser
included offenses which are supported by the evidence only requires reversal under the standard
76
enunciated in People v. Watson (1956) 46 Cal.2d 818, 836, i.e., reversal only occurs if it appears
reasonably probable that a result more favorable to the defendant would have been reached absent the
error. (People v. Beltran (2013) 56 Cal.4th 935, 955; People v. Randle (2005) 35 Cal.4th 987,1003;
People v. Lee (1999) 20 Cal.4th 47, 62; People v. Breverman (1998) 19 Cal.4th 142, 178; but see
People v. Cooper (1991) 53 Cal.3d 771, 827 [where obligation existed to give instruction but defendant
objected, invited error doctrine may preclude reversal]; this IPG memo, question 41 at pp. 79-80.)
Editor’s note: However, notwithstanding the above rule, at least when it comes to lesser included
instructions on voluntary manslaughter, the Courts of Appeal are currently debating whether the erroneous
failure to instruct on a provocation/heat of passion manslaughter is evaluated for prejudicial error under the
Watson standard or the more rigorous standard of review for federal constitutional error under Chapman
v. California (1967) 386 U.S. 18. (See People v. Wright (2015) 242 Cal.App.4th 1461, 1495 citing to
People v. Thomas (2013) 218 Cal.App.4th 630, 633, 641–645; People v. Millbrook (2014) 222
Cal.App.4th 1122, 1145–1146; and People v. Peau (2015) 236 Cal.App.4th 823, 830–831.)
In a capital case, “the United States Supreme Court [has] held that a sentence of death violates the
Fourteenth Amendment when the jury was not permitted to consider a verdict of guilt for a lesser
included noncapital offense and ‘“the evidence would [have] permit[ted] a jury rationally to find [the
defendant] guilty of the lesser included offense and acquit him of the greater.”’” (People v. Nelson
(2016) 1 Cal.5th 513, 540–541, citing to Beck v. Alabama (1980) 447 U.S. 625, 635.) If there is federal
constitutional error of this nature, the standard on review would presumably require the People to show
the error to be harmless beyond a reasonable doubt (i.e., under the standard enunciated in Chapman
v. California (1967) 386 U.S. 18.
However, “Beck’s principles are satisfied if the jury was provided some noncapital third option between
the capital charge and acquittal.” (People v. Nelson (2016) 1 Cal.5th 513, 540–541, citing to Schad v.
Arizona (1991) 501 U.S. 624, 647; see also People v. Banks (2014) 59 Cal.4th 1113, 1161 [failure to
instruct on second degree murder in a capital case does not violate the United States Constitution and,
following Hopkins v. Reeves (1998) 524 U.S. 88, the California Supreme Court has “repeatedly
rejected Beck claims in light of the differences between California’s death penalty scheme and the
Alabama scheme at issue in Beck.”].) Thus, there is no due process or other federal constitutional error
if a jury is provided with the option of first degree murder without special circumstances, or of second
degree murder on two separate theories, or manslaughter. (People v. Nelson (2016) 1 Cal.5th 513,
541.)
“Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily
decides the factual questions posed by the omitted instructions adversely to defendant under other
properly given instructions.” (People v. Chatman (2006) 38 Cal.4th 344,392; People v. Lewis
(2001) 25 Cal.4th 610, 646; but see People v. Campbell (2015) 233 Cal.App.4th 148, 167 [“while a
jury’s determination on a factual issue under other instructions is relevant to determining whether an
77
instructional error is harmless, it does not categorically establish that the error was harmless; the court
must still determine whether, based on an examination of the entire record, it is reasonably probable
that the error affected the outcome.”].)
Editor’s note: There are many cases that have held that a true finding on a felony-murder special
circumstance means that the jury would have convicted the defendant of felony murder regardless of whether
it was instructed on the lesser included offenses of a malice murder; and therefore, the failure to instruct on
the lesser offenses of the latter is necessarily harmless. (See People v. Castaneda (2011) 51 Cal.4th 1292,
1328; People v. Horning (2004) 34 Cal.4th 871, 905-906; People v. Elliot (2005) 37 Cal.4th 453, 475476; People v. Koontz (2002) 27 Cal.4th 1041, 1086-1087; and People v. Earp (1999) 20 Cal.4th 826,
886.) Nevertheless, in People v. Campbell (2015) 233 Cal.App.4th 148, the court held that where a jury is
only instructed on felony murder and not on premeditated and deliberate murder, the error must be viewed
differently than when instructions are given on both forms of murder but lesser included instructions are not
given. The “special circumstance finding may indicate nothing more than that the jury did not want to acquit
the defendant of murder, not that they found the killing was first degree felony murder.” (Id. at p. 168.)
However, in People v. Gonzalez (2016) 246 Cal.App.4th 1358 disagreed with Campbell to the extent it
suggested that the jury’s guilty verdicts on felony murder and its true findings on a robbery special
circumstance allegation did not render the failure to instruct on lesser included offenses of malice murder
harmless under Watson. (Id. at p. 1381.) Gonzalez was subsequently taken up for review on the issue of
whether a trial court's failure to instruct on murder with malice aforethought, lesser included offenses of
murder with malice aforethought, and defenses to murder with malice aforethought was rendered harmless by
the jury's finding of a felony murder special circumstance in People v. Gonzalez (No. S234377).
The general rule that failure to instruct the jury on a lesser included offense is harmless when the jury
necessarily decides the factual questions posed by the omitted instructions adversely to defendant under
other properly given instructions holds true even in a capital case where the error must be shown to be
harmless beyond a reasonable doubt (i.e., under the standard enunciated in Chapman v. California
(1967) 386 U.S. 18). (People v. Elliot (2005) 37 Cal.4th 453, 475-476.)
In assessing whether failure to instruct the jury on a lesser offense was prejudicial, reviewing courts
“may consider defense counsel’s statements during closing argument when determining whether an
error in instructing the jury was prejudicial. (People v. Cady (2016) 7 Cal.App.5th 134, 149 citing to
People v. D'Arcy (2010) 48 Cal.4th 257, 297.) Moreover, the court “may consider ... whether the
evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different
outcome is so comparatively weak,” that there is no reasonable probability the jury would have decided
differently had the trial court instructed on the lesser included offense. (People v. Breverman (1998)
19 Cal.4th 142, 177; People v. Wright (2015) 242 Cal.App.4th 1461, 1495.)
However, in assessing prejudice, “it does not matter that the jury chose to convict the defendant of the
greater offense over acquittal or that the defendant was convicted of the greater offense on sufficient
78
evidence.” (People v. Brown (2016) 245 Cal.App.4th 140, 153; People v. Racy (2007) 148
Cal.App.4th 1327, 1335-1336.)
In assessing whether failure to properly instruct on the “acquittal first” rule (adopted in Stone v.
Superior (1982) 31 Cal.3d 503 and clarified in People v. Kurtzman (1988) 46 Cal.3d 322) requires
reversal, the reviewing court applies the Watson standard in assessing whether the error was harmless
or prejudicial. (People v. Olivas (2016) 248 Cal.App.4th 758, 775.)
41. If a defendant does not ask for an instruction on a lesser
included offense, will the failure to do so prevent reversal on
appeal even if substantial evidence existed to give such an
instruction?
“The trial court’s duty to fully and correctly instruct the jury on the basic principles of law relevant to the
issues raised by the evidence in a criminal case is so important that it cannot be nullified by defense
counsel’s negligent or mistaken failure to object to an erroneous instruction or the failure to request an
appropriate instruction.” (People v. Walker (2015) 237 Cal.App.4th 111, 119 citing to People v.
Avalos (1984) 37 Cal.3d 216, 229.) “A trial court errs in failing to instruct on a lesser included offense
supported by the evidence ‘“‘even when as a matter of trial tactics a defendant not only fails to request
the instruction but expressly objects to its being given.’”’ (People v. Cady (2016) 7 Cal.App.5th 134, 145
citing to People v. Souza (2012) 54 Cal.4th 90, 114.)
A.
How does the “invited error” doctrine work in the context of
deciding whether failure to give a lesser included instruction
requires reversal?
“Nevertheless, even in instances where the trial court errs by failing to instruct on a lesser included
offense supported by the evidence, ‘the claim may be waived under the doctrine of invited error if trial
counsel both “‘intentionally caused the trial court to err’” and clearly did so for tactical reasons.”
(People v. Cady (2016) 7 Cal.App.5th 134, 145 citing to People v. Souza (2012) 54 Cal.4th 90, 114.)
A “defendant may not invoke a trial court’s failure to instruct on a lesser included offense as a basis on
which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to
instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the
doctrine of invited error bars the defendant from challenging on appeal the trial court’s failure to give
the instruction if the defense makes a conscious, deliberate tactical choice to forego an instruction on a
lesser included.” (People v. Beames (2006) 40 Cal.4th 907, 927; People v. Horning (2004) 34
Cal.4th 871, 904, quoting People v. Barton (1995) 12 Cal.4th 186, 198.)
79
However, the tactical decision must be express and unambiguous. (See People v. Castaneda (2011)
51 Cal.4th 1292, 1330 [and cases cited therein].) Moreover, where a “tactical decision” to withdraw a
request for a lesser included instruction is the product of an earlier erroneous ruling by the trial court, “it
may be questionable to impose . . . [the] procedural bar [of the invited error doctrine] if counsel merely
acted defensively and reasonably in direct response to the court's earlier ruling . . .” (People v. Souza
(2012) 54 Cal.4th 90, 115, citing People v. Turner (1990) 50 Cal.3d 668, 704, fn. 18 [counsel's
“defensive acts” in light of a court ruling “do not waive an objection on appeal”].)
In applying the “invited error” doctrine, it does not make a difference whether the trial court actually
relied upon defense counsel’s deliberate choice to forego the instruction on the lesser included offense as
a ground for deciding not to give the instruction. “The purpose of the invited error doctrine is to prevent
a defendant from asserting on appeal that a trial court decision for which he advocated below is error
and therefore a basis for reversal. [Citation omitted.] Therefore, the crucial inquiry is whether
defendant advocated for the erroneous ruling, not whether the trial court’s error was caused by that
advocacy.” (People v. Cady (2016) 7 Cal.App.5th 134, 147.)
Warning: Because the doctrine of invited error is so tightly
construed when it comes to failure to give instructions on
lesser included offenses, prosecutors should make sure to
request that defense counsel state on the record that he or she
is expressly declining to ask for a lesser included offense (that
is supported by substantial evidence) for tactical reasons.
Absent such an expression of tactical purpose, prosecutors
should insist on the lesser included offense instruction being
given. If a court is reluctant to either require counsel to
provide an express tactical purpose on the record or give the
instruction, prosecutors should cite the above-mentioned
cases and call in the cavalry.
42. If a judge erroneously gives instruction on a non-lesser
included offense and the defendant is convicted of that
offense, can the defendant complain about it on appeal?
When defense counsel makes a ‘“conscious, deliberate tactical choice”’ to request an instruction, any
error in the giving of the instruction is invited and cannot be raised on appeal.” (People v. Catlin
(2001) 26 Cal.4th 81, 150.) If a defendant either requests or acquiesces in a conviction of a non-lesserincluded offense, it is not reversible error; he cannot claim lack of notice and the court has jurisdiction to
80
convict him of such offense. (See People v. Goolsby (2015) 62 Cal.4th 360, 367; People v. Toro
(1989) 47 Cal.3d 966, 973; People v. Francis (1969) 71 Cal.2d 66, 74-75; People v. Hamernik
(2016) 1 Cal.App.5th 412, 426; People v. Parks (2004) 118 Cal.App.4th 1, 6; In re Johnny V. (1978)
85 Cal.App.3d 120, 136.)
However, a defendant’s silence when a judge announces he or she is convicting a defendant of a nonlesser included offense (i.e., a lesser related offense) after a court trial, or when a trial court reduces a
conviction to a lesser related offense, does not waive the defendant’s right to complain about the
conviction on appeal. (See People v. Parks (2004) 118 Cal.App.4th 1, 5-10 [and cases cited therein];
People v. Hamernik (2016) 1 Cal.App.5th 412, 426)
43. Can a court that finds insufficient evidence to uphold a
greater offense modify the verdict to reflect a conviction for a
lesser included offense?
Pursuant to Penal Code section 1181, subdivision 6, a trial court may modify a verdict or judgment
without granting or ordering a new trial “if the evidence shows the defendant to be not guilty of the
degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or a lesser crime
included therein.” (Pen. Code, § 1181(6), emphasis added by IPG.) Pursuant to Penal Code section
1260, a reviewing court may “modify a judgment or order appealed from, or reduce the degree of the
offense or attempted offense or the punishment imposed . . .” (Pen. Code, § 1260.)
“The requirement that the lesser offense be included in the greater ‘is based upon due process
considerations: A criminal defendant must be given fair notice of the charges against him in order that
he may have a reasonable opportunity properly to prepare a defense and avoid unfair surprise at trial.’”
(People v. Robinson (2016) 63 Cal.4th 200, 206-207.) “The requirement also preserves the jury's
role as the finder of fact. The modification permitted by section 1181, subdivision 6 ‘merely brings the
jury's verdict in line with the evidence presented at trial.’” (People v. Robinson (2016) 63 Cal.4th 200,
207, citing to People v. Navarro (2007) 40 Cal.4th 668, 679.)
A.
Can a court that finds insufficient evidence to uphold a greater
offense modify a single conviction to reflect convictions for two or
more lesser included offenses?
The principle adopted in People v. Eid (2014) 59 Cal.4th 650 that a jury can convict of multiple lesser
included offenses of a single count in certain circumstances (see this IPG memo, question 37 at pp. 7475) does not govern the question of whether a reviewing court can uphold convictions for multiple lesser
included offenses after finding insufficient evidence to support the greater offense. In those
circumstances, the California Supreme Court has held that sections 1181 and 1260 do not provide a
reviewing court the authority to substitute two lesser included offenses for one greater offense. (People
81
v. Navarro (2007) 40 Cal.4th 668, 674–675; see also People v. Eid (2014) 59 Cal.4th 650, 659
[distinguishing the situation in Navarro from the one presented in Eid because in Navarro the court
was acting pursuant to sections 1181(6)and 1260 and those sections restrict “the reviewing court to the
‘corrective function’ of ‘replac[ing] a single greater offense with a single lesser offense....’” whereas in
Eid the question of the validity of multiple lesser included offenses arose in the context of the jury
“determining the extent of a defendant's culpability in the first instance” – a determination that did not
involve the exercise of a “similar corrective function.”]; accord People v. Solis (2015) 232 Cal.App.4th
1108, 1118.)
B.
May a court reduce a conviction to an attempted offense under
Penal Code sections 1181(6) or 1260?
Penal Code section 1181, subdivision 6 states: When the verdict or finding is contrary to law or evidence,
but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was
convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the
court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial,
and this power shall extend to any court to which the cause may be appealed . . .” (Emphasis added by
IPG.)
Editor’s note: There is no language in section 1260 which expressly limits the court’s power to modify a
judgment by reducing a conviction to convictions that constitute necessarily lesser included offenses.
However, it appears that powers granted by section 1260 do not exceed those granted by section 1181(6)
insofar as those powers allow a court to reduce convictions. (See People v. Navarro (2007) 40 Cal.4th
668, 677-678). Thus, if section 1118(6) would not authorize reduction of an offense to an attempt unless the
attempt constituted a lesser included offense, neither would section 1260.
There is case law, citing to sections 1181(6) and 1260, in conjunction with Penal Code section 1159,
holding that “where the evidence is insufficient to sustain the offense charged but shows that the
defendant is guilty of a lesser included offense, or an attempt to commit the offense, or a lesser degree
of the offense, the court may reduce the crime rather than reverse outright. (People v. Yonko (1987)
196 Cal.App.3d 1005, 1010, emphasis added by IPG.) This suggests that so long as the evidence would
support a reduction of a conviction to an attempted version of the conviction, it is permissible regardless
of whether the attempt is a lesser included offense. And there are cases where the California Supreme
Court has authorized the reduction of a conviction for a general intent crime to a conviction for an
attempted crime. (See also People v. Martinez (1999) 20 Cal.4th 225, 241 [kidnapping reduced to
attempted kidnapping]; People v. Kelly (1992) 1 Cal.4th 495, 528 [rape reduced to attempted rape].)
However, more recent case law from the California Supreme Court indicates that not all attempts qualify
as lesser included crimes and if the attempt is not a lesser included offense because it “includes a
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particularized intent that goes beyond what is required by the completed offense” then a court may not,
pursuant to section 1181(6), reduce an overturned conviction to a conviction for the attempted crime.
(People v. Bailey (2012) 54 Cal.4th 740, 753.)
In Bailey, the court had to decide whether, after finding insufficient evidence to support a conviction
for escape from state prison in violation of Penal Code section 4530(b), an appellate court could reduce
the conviction to attempt to escape, notwithstanding the trial court’s failure to instruct the jury on
attempt. (Id. at p. 744.) The Attorney General argued, inter alia, “a conviction of attempt to commit the
substantive crime is deemed a lesser included offense of the charged substantive offense, by operation of
section 1159 itself” which provides, in pertinent part, that “[t]he jury, or the judge if a jury trial is waived,
may find the defendant guilty of any offense, the commission of which is necessarily included in that
with which he is charged, or of an attempt to commit the offense.” (Id. at p. 752, emphasis in original.)
The Bailey court noted that “[t]he disjunctive language [of section 1159] appears to support the claim a
trial court may reduce a defendant's conviction to an uncharged attempt if supported by the evidence.”
(Id. at p. 752.) It also acknowledged case law stating that attempt is a lesser included offense of any
completed crime and recognized earlier decisions in which it had authorized the reduction of a
conviction for a general intent crime to a conviction for an attempted crime. (Id. at pp. 752-753.)
Nevertheless, the court found that where the jury was never instructed on attempt to escape, and the jury
was never required to make a finding of specific intent to escape, it could not reduce the escape charge to
an attempted case. (Id. at p. 749-752.)
The Bailey court did not expressly overrule its earlier decisions that authorized the reduction of a
conviction for a general intent crime to a conviction for an attempted crime, but did conclude that the
general principle that attempt is a lesser included offense of any completed crime is not applicable
“where the attempted offense includes a particularized intent that goes beyond what is required by the
completed offense.” (Id. at p. 753.)
Several appellate courts, relying on this language in Bailey have held that (at least for purposes of
section 1181(6) and 1260), “[w]hen the completed offense is a general intent crime, an attempt to
commit that offense does not meet the definition of a lesser included offense under the elements test
because the attempted offense includes a specific intent element not included in the complete offense.”
(People v. Hamernik (2016) 1 Cal.App.5th 412, 423; People v. Ngo (2014) 225 Cal.App.4th 126,
156–157; see also People v. Strunk (1995) 31 Cal.App.4th 265, 271 [“an attempt is a specific intent
crime and does not fit within the definition of a necessarily included offense of a general intent crime”].)
The Bailey court did not expressly overrule its earlier decisions in People v. Martinez (1999) 20
Cal.4th 225, 241 and People v. Kelly (1992) 1 Cal.4th 495, 528, nor did it spend time specifically
distinguishing them, so there remains at least some ambiguity whether an attempted general intent
crime can ever be viewed as a necessarily lesser included offense. (See also People v. Bailey (2012)
83
54 Cal.4th 740, 753 [“The law of ‘attempt’ is complex and fraught with intricacies and doctrinal
divergences.”]; People v. Ngo (2014) 225 Cal.App.4th 126, 156 [same].) Suffice to say, assuming there
is evidence to support a reduction, if an attempt is a lesser included crime of the crime for which a
defendant was convicted and a court reverses a conviction for a completed offense, a court may,
pursuant to section 1181(6) reduce a conviction to a conviction for the attempted crime. (See e.g.,
People v. Jones (1999) 75 Cal.App.4th 616, 628 [reducing kidnapping during the commission of
carjacking to attempted carjacking].) On the other hand, it should be presumed that if an attempt
“includes a particularized intent that goes beyond what is required by the completed offense” (People v.
Bailey (2012) 54 Cal.4th 740, 753), it is unlikely courts will reduce an overturned conviction to an
attempted crime unless it can be determined that the jury specifically found that particularized intent
existed.
THE LIST OF LESSER INCLUDED OFFENSES APPEARS ON THE NEXT PAGE
84
LIST OF LESSER INCLUDED OFFENSES
This list describes when one offense is a lesser included offense under the elements test unless otherwise
stated.
Editor’s note: Because readers may use different shorthand references than those used by IPG, it is strongly
recommended that in seeking to find a specific greater or lesser offense, readers use a word search for the
numerical code section.
Accessory (Pen. Code § 32)
Accessory to felony is not a lesser included offense of any felony where guilt as a principal is alleged.
(People v. Markus (1978) 82 Cal.App.3d 477, 480; see this IPG, question 14 at p. 58.
Aiding and Abetting
Being an accessory (Pen. Code § 32) is not a lio within aiding and abetting. (People v. Nguyen (1993)
21 Cal.App.4th 518, 537.)
Aggravated Sexual Assault of a Child Under 14 and More Than 7 years Younger (Pen.
Code § 269(a)(1)-(5)
Lewd acts on a child (Pen. Code § 288(b)) is a lio of aggravated sexual assault of a child. (People v.
Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1581.)
Lewd acts on a child (Pen. Code § 288(b)) is a lio of section 269(a)(4) [oral copulation]. (People v.
Peyton (2009) 176 Cal.App.4th 642, 655, fn. 7 [albeit erroneously referring to subdivision (a) as
subdivision (b)].)
Lewd acts on a child (Pen. Code § 288(b)) is a lio of section 269(a)(5) [penetration by a foreign object].
(People v. Peyton (2009) 176 Cal.App.4th 642, 655, fn. 7 [albeit erroneously referring to subdivision
(a) as subdivision (b)].)
Alcohol -Provision Of (Bus. & Prof. § 25658(a))
Purchasing an alcoholic beverage for minor who then proximately causes gbi or death (Bus. & Prof. §
25658(c) is not a lio of providing alcohol to a minor (Bus. & Prof. § 25658(a)). (In re Jennings (2004)
34 Cal.4th 254, 266, fn. 7.)
Armed with a Deadly or Dangerous Weapon Enhancement (Pen. Code § 12022(b)
Being armed with a firearm in the commission of a felony or attempted felony in violation of Penal Code
section 12022 is not a lio of a section 12022(b) arming enhancement under the elements test because
someone could have personally used a deadly or dangerous weapon in the commission of a felony
without also necessarily being found to have been armed with a firearm. (In re A.L. (2015) 233
Cal.App.4th 496, 500, 504 [albeit finding it was a lesser under the accusatory pleading test because the
petition identified the deadly weapon as a handgun].)
Arson - Aggravated (Pen. Code § 451.5)
Arson (Pen. Code § 451) is a lio of aggravated arson (Pen. Code § 451.5). (People v. Muszynski
(2002) 100 Cal.App.4th 672, 684.)
Arson (Pen. Code § 451)
Arson of property under Penal Code section 451(d) is not a lio of arson of an inhabited structure or
inhabited property under Penal Code section 451(b) because if the person burns their own property the
85
person can be found guilty of section 451(b) but not of 451(d). (People v. Goolsby (2015) 62 Cal.4th
360, 364.) For similar reasons, unlawfully causing a fire of property (Pen. Code § 452(d)) is not a lio of
arson of an inhabited structure or inhabited property under Penal Code section 451(b). (People v.
Goolsby (2015) 244 Cal.App.4th 1220, 1227.)
Unlawfully causing a fire (Pen. Code § 452) is a lio of arson (Pen. Code § 451) in general. (People v.
Lopez (1993) 13 Cal.App.4th 1840, 1846; In re Stonewall F. (1989) 208 Cal.App.3d 1054, 1068;
People v. Hooper (1986) 181 Cal.App.3d 1174, 1181-1182; see also People v. Atkins (2001) 25
Cal.4th 76, 88 [reckless burning is a lesser offense of arson].)
Note: Both §§ 451 and 452 contain parallel subsections; the subsections in 452 are lio of their analogous
subsections in section 451.) For example, unlawfully causing a fire of a structure or forest land (Pen.
Code § 452(c)) is a lio of arson of a structure or forest land (Pen. Code § 451(c)). (See People v.
Schwartz (1992) 2 Cal.App.4th 1319, 1324; People v. Hooper (1986) 181 Cal.App.3d 1174, 1181-1182
[§ 452(c) is a lio of 451(c).).
Assault (Pen. Code § 240)
Battery (Pen. Code § 242) is not a lio of assault. (People v. Delahoussaye (1989) 213 Cal.App.3d 1,
10.)
Assault with a Deadly Weapon Other than a Firearm (Pen. Code § 245(a)(1)
Assault (Pen. Code § 240) is a lio of assault with a deadly weapon. (In re Brandon T. (2011) 191
Cal.App.4th 1491, 1498.)
Assault by force likely to produce great bodily injury (Pen. Code § 245(a)(4) is a lio of assault with a
deadly weapon or instrument other than a firearm. (In re Jonathan R. (2016) 3 Cal.App.5th 963,
966.)
Editor’s note: The Jonathan R. case is somewhat tortured in its analysis. If it is correct, then the crime of
assault with a deadly weapon or instrument is superfluous.
Assault by a Prisoner With a Deadly Weapon or Force Likely to Cause GBI (Pen. Code §
4501)
Assault (Pen. Code § 240) is a lio of assault by a prisoner. (People v. McDaniel (2008) 159
Cal.App.4th 736, 747.)
Assault with a deadly weapon/by means of force likely to cause great bodily injury (former Pen. Code §
245(a)(1)) is a lio of assault by a prisoner. (People v. McDaniel (2008) 159 Cal.App.4th 736, 749.)
Assault by a Prisoner Serving a Life Sentence With a Deadly Weapon or Force Likely to
Cause GBI (Pen. Code § 4500)
Assault with a deadly weapon (Pen. Code, § 245(a)(1)) is a lio of assault with a deadly weapon by a
prisoner serving a life sentence firearm. (People v. Milward (2011) 52 Cal.4th 580, 588.)
Editor’s note: See editor’s note in this IPG, section II at p. 88 [explaining rationale of Milward in greater
depth].)
Murder in the first degree (Pen. Code § 189 [premeditated and deliberate]) is not a lio of assault with a
deadly weapon or gbi by a prisoner serving a life sentence. (People v. Delgado (2017) 2 Cal.5th 544,
572.)
86
Assault on Child with Force Likely to Cause GBI Which Results in Death (Pen. Code §
273ab)
Assault by means of force likely to cause great bodily injury (Pen. Code § 245(a)) is a lio of assault on a
child . . . resulting in death. (People v. Basuta (2001) 94 Cal.App.4th 370, 392; see also People v.
Wyatt (2012) 55 Cal.4th 694, 698 [noting the parties, citing to Basuta, agreed that assault (§ 240) is a
lio of child assault homicide]
Child abuse in violation of Penal Code section 273a(a) is not a lio of child abuse of a child under 8
causing death in violation of section 273ab. (See People v. Hall (2011) 200 Cal.App.4th 778, 781
[former is lesser-related of latter].)
Involuntary manslaughter (Pen. Code § 192(b) is not a lio of assault on a child . . . resulting in death.
(People v. Stewart (2000) 77 Cal.App.4th 785, 795; Orlina v. Superior Court (1999) 73
Cal.App.4th 258, 262.)
Assault with Intent to Commit Mayhem, Rape, Sodomy, Oral Copulation (Pen. Code §
220)
Assault (Pen. Code § 240) is a lio of assault with intent to commit mayhem, etc. (People v. Elam
(2001) 91 Cal.App.4th 298, 308; People v. Carapeli (1988) 201 Cal.App.3d 589, 595.)
Attempted sexual battery (Pen. Code § 243.4) is not a lio of assault with intent to commit rape.
(People v. Dixon (1999) 75 Cal.App.4th 935, 940, 945.)
Assault with a Deadly Weapon or With Force Likely to Cause GBI (Pen. Code § 245(a)(1))
Assault (Pen. Code § 240) is a lio of assault with a deadly weapon or force likely to cause gbi. (People
v. McDaniel (2008) 159 Cal.App.4th 736, 747; People v. Beasley (2003) 105 Cal.App.3d 1078,
1088.)
Battery (Pen. Code § 242) is not a lio of assault with a deadly weapon. (People v. Yeats (1977) 66
Cal.App.3d 874,878; People v. Fuller (1975) 53 Cal.App.3d 417, 422; People v. Lathus (1973) 35
Cal.App.3d 466, 471; People v. Mueller (1956) 147 Cal.App.2d 233, 239.)
Battery with serious bodily injury (Pen. Code § 243(d)) is not a lio of aggravated assault (former 245(a).)
(People v. Corning (1983) 146 Cal.App.3d 83, 90.)
Brandishing (Pen. Code § 417) is not a lio of assault with a deadly weapon. (People v. Escarcega
(1974) 43 Cal.App.3d 391, 396-400 [and cases cited therein].)
Mayhem (Pen. Code § 203) is not a lio of assault with a deadly weapon. (People v. Solis (2015) 232
Cal.App.4th 1108, 1116.)
Assault with the Intent to Commit Rape, Sodomy, Oral Copulation, or Any Violation of
Section 264.1, 288, or 289 in the Commission of a First-Degree Burglary (Pen. Code §
220(b))
Assault with the intent to commit rape (Pen. Code § 220(a) is a lio of assault with intent to commit rape
during the commission of first degree burglary. (People v. Dyser (2012) 202 Cal.App.4th 1015, 1021.)
Burglary of the first degree (Pen. Code, § 459/460) is a lio of section 220(b). (People v. Dyser (2012)
202 Cal.App.4th 1015, 1020.)
87
Assault with a Firearm (Pen. Code § 245(a)(2))
Assault with a deadly weapon is likely a lio of assault with a firearm. (People v. Milward (2011) 52
Cal.4th 580, 588.)
Editor’s note: It would seem the offense of assault with a deadly weapon should not be a lesser included offense
of assault with a firearm because section 245(a)(1) prohibits an “assault with a deadly weapon or instrument other
than a firearm or by any means of force likely to produce great bodily injury[.]” (Pen. Code, § 245(a)(1).)
However, the court in People v. Milward (2011) 52 Cal.4th 580 explained the phrase “other than a firearm” is
“not an element of the crime there described (aggravated assault). The quoted statutory phrase serves simply to
distinguish an assault so committed from the slightly more serious offense of assault “with a firearm,” as set
forth in section 245'’ subdivision (a)(2). (Id. at p. 588, emphasis added by IPG.) “Consequently, when, for
instance, a jury is convinced beyond a reasonable doubt that the defendant assaulted the victim with a deadly
weapon, but because of conflicting evidence is uncertain whether the weapon was indeed a firearm, the jury can
convict the defendant of aggravated assault, the crime set forth in section 245's subdivision (a)(1).” (Id. at p. 588.)
Thus, the Milward court held that assault with a deadly weapon was a lesser included offense of assault with a
deadly weapon by a prisoner serving a life sentence in violation of Penal Code section 4500– even though the
latter offense omitted the phrase “other than a firearm.” (Id. at p. 589.) It follows that if “other than a firearm” is
not an element of section 245(a)(1), a defendant could not commit an assault with a firearm in violation of section
245(a)(2) without necessarily committing an assault with a deadly weapon- the test for determining whether one
offense is a lesser included of another offense. (See People v. Milward (2011) 52 Cal.4th 580, 588.)
Brandishing (Pen. Code § 417) is not a lio of assault with a firearm. (People v. Steele (2000) 83
Cal.App.4th 212, 218-219 [citing nine appellate decisions so holding and noting “it is theoretically
possible to assault someone with a firearm without exhibiting the firearm in a rude, angry or threatening
manner, e.g., firing or pointing it from concealment, or behind the victim's back”]; but see People v.
Wilson (1967) 66 Cal.2d 749, 764 [implying brandishing is lio of adw]; People v. Coffey (1967) 67
Cal.2d 204, 222, fn. 21.) Why Wilson and Coffey are no longer good law on this point is discussed at
length in Steele.
Assault with a Semiautomatic Firearm (Pen. Code § 245(b))
Assault with a firearm (Pen. Code § 245(a)(2) is a lio of assault with a semiautomatic firearm. (People
v. Martinez (2012) 208 Cal.App.4th 197, 199.)
Editor’s note: In People v. Miceli (2002) 104 Cal.App.4th 256, the court assumed, but did not decide, that
assault with a deadly weapon in violation of Penal Code section 245(a)(1) was a lesser included offense of assault
with a semiautomatic firearm. (Id. at p. 272.)
Assault with a Deadly Weapon or Firearm or Semiautomatic Firearm on a Peace
Officer, Etc., Performing Duties (Pen. Code § 245(c) & (d) (formerly § 245(b))
Assault (Pen. Code § 240) is a lio of assault with a deadly weapon, etc., on a peace officer, etc. (People
v. Hood (1969) 1 Cal.3d 444, 450.)
Assault with a deadly weapon, etc., (Pen. Code § 245(a)(1) and (a)(2)) are lios of assault with a deadly
weapon, etc on a peace officer, etc. (People v. Hood (1969) 1 Cal.3d 444, 450; People v. Ryan
(2006) 138 Cal.App.4th 360, 369, fn. 8.)
Battery (Pen. Code § 242) is not a lio of assault with a deadly weapon or firearm on a peace officer
performing his/her duties. (People v. Delahoussaye (1989) 213 Cal.App.3d 1,10; People v. Jones
(1981) 119 Cal.App.3d 749, 754.)
Battery upon a police officer (Pen. Code § 243) is not a lio of assault with a deadly weapon or firearm on
a peace officer performing his/her duties. (People v. Delahoussaye (1989) 213 Cal.App.3d 1, 10;
People v. Jones (1981) 119 Cal.App.3d 749,754.)
Resisting, obstructing, etc a peace officer (Pen. Code § 148(a)(1)) is a lio of battery. (People v. Jones
(1981) 119 Cal.App.3d 749,755.)
88
Editor’s note: Jones came to its conclusion that a violation of section 148 was a lio of assault on a peace officer
based on People v. Perkins (1970) 9 Cal.App.3d 1048, 1050-1051, which held a violation of section 148 was a lio
of battery on a police officer. Perkins is probably no longer good law since it came to its decision based on the
evidence adduced at trial rather than on the elements test. (See Wilkinson v. Zelen (2008) 167 Cal.App.4th 37,
48, fn. 4 [resisting, obstructing, etc a peace officer (Pen. Code § 148(a)(1)) is not a lio of battery on a custodial
officer].) It follows that Jones is also probably no longer good law in this regard.
Attempt (Pen. Code § 664)
See this IPG, questions 12 and 13 at pp. 32-58.
Attempted Murder: See Murder -Attempted (Pen. Code § 187/664)
Attempted Premeditation Murder: See Murder – Premeditated Attempted (Pen. Code §
187/664)
Battery (Pen. Code § 242)
Assault (Pen. Code § 240) is a lio of battery. (People v. Ortega (1998) 19 Cal.4th 686, 692-693.)
Assault with a deadly weapon (Pen. Code § 245(a)(1)) is not a lio of battery. (People v. Fuller (1975)
53 Cal.App.3d 417, 422.)
Lewd acts upon a child under the age of 14 (Pen. Code § 288(a) is not a lio of battery. (People v.
Shockley (2013) 58 Cal.4th 400, 406; see also this IPG memo, question 4-D at pp. 12-13.
Battery Against a Custodial Officer (Pen. Code § 243.1)
Resisting, obstructing, etc a peace officer (Pen. Code § 148(a)(1)) is not a lio of battery on a custodial
officer. (Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, 48, fn. 4.)
Battery by Gassing (Pen. Code § 4501.1)
Battery by a prisoner on a nonprisoner (Pen. Code § 4501.5) is a lio of battery by gassing. (People v.
Flores (2009) 176 Cal.App.4th 924, 927.)
Battery on a Peace Officer, Etc. (Pen. Code § 243(b))
Battery (Pen. Code § 242) is a lio of battery on a peace officer, etc. (People v. Curtis (1969) 70 Cal.2d
347, 357.)
Resisting, obstructing, etc a peace officer (Pen. Code § 148) is a lio of battery on a peace officer, etc.
(People v. Olguin (1981) 119 Cal.App.3d 39, 41, fn. 2.; People v. Jones (1981) 119 Cal.App.3d
749,755; People v. Perkins (1970) 9 Cal.App.3d 1048, 1050-1051.)
Editor’s note: Perkins (and the cases following it, Olguin and Jones) are probably no longer good law since
Perkins decided whether the violation of section 148 was a lio based on the evidence adduced at trial rather than
on the elements test. (See In re Haris B. [unpublished] 2004 WL 1802386, *3; see also Wilkinson v. Zelen
(2008) 167 Cal.App.4th 37, 48, fn. 4 [resisting, obstructing, etc a peace officer (Pen. Code § 148(a)(1)) is not a lio
of battery on a custodial officer].)
Battery on a Peace Officer, Etc. With Injury (Pen. Code § 243(c))
Battery on a peace officer, etc. (Pen. Code § 243(b)) is a lio of battery on peace officer, etc., with injury.
(People v. Wilkinson (2004) 33 Cal.4th 821, 841, fn. 7; People v. Hayes (2006) 142 Cal.App.4th
175, 180 [deputy probation officer].)
89
Battery against a custodial officer (Pen. Code § 243.1) is not a lio of battery on peace officer, etc., with
injury. (People v. Wilkinson (2004) 33 Cal.4th 821, 841, fn. 7.)
Battery on a Spouse: See Spousal Battery
Battery with Serious Bodily Injury (Pen. Code § 243(d)) - See also Corporal Injury to
Child
Assault with a deadly weapon or with force likely to produce gbi (Pen. Code § 245(a)(1)) is not a lio of
battery with serious bodily injury. (In re Jose H. (2000) 77 Cal.App.4th 1090, 1095-1096; In re
Ronnie N. (1985) 174 Cal.App.3d 731, 735.)
Battery (Sexual, by Fraudulent Misrepresentation) (Pen. Code § 243.4(c)
Sexual battery (Pen. Code § 243.4(e)(1)) is not a lio of sexual battery by fraudulent misrepresentation in
violation of Penal Code section 243(c). (People v. Robinson (2016) 63 Cal.4th 200, 205, 210-211;
accord People v. Babaali (2009) 171 Cal.App.4th 982, 998 [albeit for different reasons than
discussed in Robinson]; see also this IPG memo, question 4-D at pp. 13-14)
Attempted sexual battery (Pen. Code § 243.4(e)(1)/664) is not a lio of sexual battery by fraudulent
misrepresentation in violation of Penal Code section 243(c). (People v. Babaali (2009) 171
Cal.App.4th 982, 998 [albeit making its finding based on reasoning, but not conclusion, repudiated in
People v. Robinson (2016) 63 Cal.4th 200]
Battery (Sexual with Restraint) (Pen. Code § 243.4(a))
Assault (Pen. Code § 240) is a lio of sexual battery with restraint (Pen. Code § 243.4(a)). (People v.
Alford (1991) 235 Cal.App.3d 799, 805, fn. 6; People v. Carapeli (1988) 201 Cal.App.3d 589, 595, fn.
3.)
Assault by a public official under color of authority (Pen. Code § 148.9) is not a lio of sexual battery.
(People v. Alford (1991) 235 Cal.App.3d 799, 805.)
Battery (Pen. Code§ 242) is a lio of sexual battery (Pen. Code § 243.4(e). (In re Keith T. (1984) 156
Cal.App.3d 983, 203 [under former 243.4 – now 243.4(e)].)
Sexual battery without restraint (Pen. Code § 243.4(e)) is a lio of sexual battery with restraint. (People
v. King (2010) 183 Cal.App.4th 1281, 1319.)
Battery on a Transportation Worker (Pen. Code § 243.3)
Battery on a person on public transportation (Pen. Code § 243.35) is not a lio of battery on a
transportation worker. (People v. James (2014) 230 Cal.App.4th 1256, 1258–1259.)
Battery (Pen. Code § 242) is a lio of battery on a transportation worker. (People v. James (2014) 230
Cal.App.4th 1256, 1265, fn. 7.)
Bomb Threat (Pen. Code § 148.1)
Telephoning a 911 emergency line with the intent to annoy or harass (Pen. Code § 653x) is not a lio of
making a false report that a bomb has been placed in a public or private place. (People v. Cheaves
(2003) 113 Cal.App.4th 445, 454.)
90
Burglary (Pen. Code § 459)
Receiving stolen property (Pen. Code § 496) is not a lio of burglary. (People v. Lagunas (1994) 8
Cal.4th 1030, 1035; In re Christopher S. (1985) 174 Cal.App.3d 620, 623-624; People v. Hall (1985)
168 Cal.App.3d 624, 626.)
Theft (Pen. Code § 484) is not a lio of burglary. (People v. Smith (2005) 132 Cal.App.4th 924, 930,
fn. 3.)
Trespassing (Pen. Code § 602) is not a lio of burglary. (People v. Foster (2010) 50 Cal.4th 1301, 1343;
People v. Birks (1998) 19 Cal.4th 108, 118, fn. 8; see also People v. Taylor (2010) 48 Cal.4th 574,
622
Burglary (Auto) (Pen. Code § 459-2nd)
Tampering with a vehicle (Veh. Code § 10852) is a lio of auto burglary. (In re Lamont R. (1988) 200
Cal.App.3d 244, 248, fn. 1; People v. Mooney (1983) 145 Cal.App.3d 502, 505.)
Burglary Tools (Pen. Code § 466)
Ex-felon in possession of a firearm (Pen. Code § 29800(a)(1), formerly § 12021) is not a lio of possession
of burglary tools. (People v. Winchell (1966) 248 Cal.App.2d 580, 586.)
Carjacking (Pen. Code § 215)
Robbery (Pen. Code § 211) is not a lio of carjacking because a “carjacking conviction can be based on the
intent to permanently or temporarily deprive the victim of a car, whereas a robbery requires the intent to
permanently deprive a person of property.” (People v. Scott (2009) 179 Cal.App.4th 920, 928.)
Theft (Pen. Code § 487 [grand] or § 484[petty]) is not a lio of carjacking. (People v. Ortega (1998) 19
Cal.4th 686, 692-693.) Attempted theft (Pen. Code § 487 [grand]) is not a lio of attempted carjacking.
(People v. Marquez (2007) 152 Cal.App.4th 1064, 1068 [and noting that this follows because
attempted grand theft requires an intent to permanently deprive while attempted carjacking requires an
intent to either temporarily or permanently deprive].)
Unlawfully taking a vehicle (Veh. Code § 10851(a)) is not a lio of carjacking. (People v. Montoya
(2004) 33 Cal.4th 1031, 1033, 1035 [noting that where a car is stolen and the neighbor of the victim, in
hopes of a reward, see the car being driven by the thief and forcibly removes the thief from the car, the
neighbor has committed a carjacking but not a vehicle taking because he does not intend to permanently
deprive the owner of the car; and disapproving People v. Rush (1993) 16 Cal.App.4th 20]; People v.
Lipsett (2014) 223 Cal.App.4th 1060, 1065-1066.)
Editor’s Note: As to lesser included offenses of kidnapping during the commission of a carjacking (Pen. Code §
209.5), see Kidnapping During Commission of a Carjacking (Pen. Code § 209.5).
Child Abduction (Pen. Code § 278.5)
Contempt (Pen. Code § 166.4) is not a lio of child abduction. (People v. Moses (1996) 43 Cal.App.4th
462, 469.)
Child Abuse (Pen. Code § 273a)
Misdemeanor child abuse (Pen. Code § 273a(b) former 273(a)(2)) is a lio of felony child abuse (Pen.
Code § 273a(a), former 273a(a)(1)). (People v. Moussabeck (2007) 157 Cal.App.4th 975, 980;
People v. Sheffield (1985) 168 Cal.App.3d 158, 166.)
91
Corporal injury to child (Pen. Code § 273d) is not a lio of child abuse. (People v. Lofink (1988) 206
Cal.App.3d 161, 166; People v. Sheffield (1985) 168 Cal.App.3d 158, 163.)
Child Abuse of a Child Under 8 Causing Death (Pen. Code § 273ab): See Assault on Assault
on Child with Force Likely to Cause GBI Which Results in Death (Pen. Code § 273ab)
Chop Shop (Veh. Code § 10801)
There is a split in the case law (between the 2nd and 4th districts) as to whether receiving stolen
property (Pen. Code § 496) is a lio of operating a chop shop. In People v. King (2000) 81 Cal.App.4th
472, the court held that receiving stolen property was a lio of operating a chop shop where the stolen
property received is the same property underlying the chop shop operation. (Id. at p. 476.) In People
v. Strohman (2000) 84 Cal.App.4th 131, the court held receiving stolen property was not a lio of
operating a chop shop on the ground that chop shop violations may be predicated on possession of
property obtained “by theft, fraud, or conspiracy to defraud” and property obtained by fraud "would not
fall under the definition of receiving stolen property," which "applies only to property stolen or obtained
by theft or extortion." (Id. at p. 1316.) More recently, the same court that decided King, reiterated its
holding in People v. Sanchez (2003) 113 Cal.App.4th 325, noting that “fraud” is a form of theft. (Id.
at p., 333.) However, the Sanchez court nevertheless found the receiving stolen property offense was
not a lio of the chop shop violation (and thus two separate convictions were proper) even though the
stolen property came from a single vehicle, because the defendant used the stolen parts for two separate
purposes; namely, the defendant used some parts of a stolen motorcycle in a chop shop operation but
also installed some parts of the motorcycle in his own personal bike. (Id. at p. 334.)
Committing a Felony for the Benefit of a Street Gang Pen. Code § 186.22(b)); see also
Street Terrorism (Pen. Code § 186.22(a))
Street terrorism (Pen. Code § 186.22(a)) is not a lio of committing a felony for the benefit of a street
gang. (See People v. Ybarra (2008) 166 Cal.App.4th 1069, 1095 [noting difference between offenses
to show the former offense was not a lio of committing a murder for the benefit of a street gang].)
Computers -Unauthorized Use of (Pen. Code § 502(c)(1))
Knowingly using or causing to be used computer services (Pen. Code § 502(c)(3) is not a lio of accessing
and altering, damaging, etc for fraudulent purposes (Pen. Code § 502(c)(1). (People v. Tillotson
(2007) 157 Cal.App.4th 517, 540-541 [but finding § 502(c)(3) was in the case before it under the
accusatory pleading test because section 502(c)(1) charge alleged both altering, damaging, etc and “use”
of the computer].)
Conspiracy (Pen. Code § 182)
There is no lesser included offense of the crime of conspiracy in the abstract. However, the target crime
of the conspiracy may have a lesser included offense and where the evidence supports it, a jury should be
instructed on lesser included offenses of the target offense. (People v. Ledesma (2006) 39 Cal.4th
641, 714, fn. 22; People v. Cook (2001) 91 Cal.App.4th 910, 918; People v. Fenenbock (1996) 46
Cal.App.4th 1688, 1706; see e.g., People v. Kelly (1990) 220 Cal.App.3d 1358, 1369 [jury should have
been instructed on conspiracy to commit theft as a lio of conspiracy to commit robbery]; People v.
Baker (1999) 74 Cal.App.4th 243, 252-253 [jury should have been instructed on lesser included
conspiracy to commit misdemeanor simple assault where defendant charged with conspiracy to commit
felony assault with deadly weapon].)
However, if conspiracy is not a charged offense and is only being used as a theory to hold defendant
vicariously liable for offenses committed in furtherance of the conspiracy, then there is no need to give a
lesser instruction on lesser included target offenses. (People v. Ledesma (2006) 39 Cal.4th 641, 714,
fn. 22.)
92
There is a split of authority as to whether overt acts in a conspiracy case may be considered in assessing
whether a target offense is a lesser included target offense under the accusatory pleading test. In People
v. Fenenbock (1996) 46 Cal.App.4th 1688, the court held rejected the argument that the crimes of
assault, battery, or mayhem were lesser included target offenses in a conspiracy to commit murder case
under the accusatory pleading test “[b]ecause overt acts need not be criminal offenses or even acts
committed by the defendant, the description of the overt acts in the accusatory pleading does not
provide notice of lesser offenses necessarily committed by the defendant. Moreover, inasmuch as overt
acts may be lawful acts, the overt acts do not necessarily reveal the criminal objective of the conspiracy.”
(Id. at p. 1709.) On the other hand, in People v. Cook (2001) 91 Cal.App.4th 910, the court did
consider the overt acts alleged (i.e., “defendants . . . acquired a gun” and “shot and killed victim . . .”) in
finding assault with a firearm was a lesser included target offense of murder in a conspiracy to commit
murder case. (Id. at p. 920-922.) The Cook court decided that conspiracy to commit assault by means
of a firearm was a lesser included offense of conspiracy to commit murder because, given the nature of
the overt acts alleged, defendants were in fact charged with conspiracy to commit murder by means of a
firearm. The Cook court concluded the overt acts can provide notice (and did so in the case before it)
of a lesser included offense albeit recognizing that “[t]o the extent an accusatory pleading fails to allege
overt acts sufficient to give notice of a lesser included offense, the trial court may not rely on the
pleading as a basis to instruct on lesser included offenses not included in the allegations of that
pleading.” (Id. at p. 921.)
Conspiracy to commit second degree murder is not a lio of conspiracy to commit murder. (People v.
Vargas (2001) 91 Cal.App.4th 506, 547.)
Contacting a Minor with the Intent to Commit a Sexual Offense (Pen. Code § 288.3)
Crime of arranging a meeting with a minor for the purpose of engaging in lewd and lascivious behavior
(Pen. Code § 288.4) is not a lio of contacting a minor with the intent of committing a lewd act, as it is
possible to commit the crime of luring a minor without arranging a meeting with that minor. (People
v. Keister (2011) 198 Cal.App.4th 442, 452.)
Attempted oral copulation of a minor in violation of section 288a(b)(1)/664 is not a lio of contacting a
minor with the intent to commit a sexual offense (e.g., oral copulation). (People v. Medelez (2016) 2
Cal.App.5th 659, 661.)
Contempt for Violating Restraining Order (Pen. Code § 166(a)(4)
Stalking in violation of a restraining order (Pen. Code § 646.9(b)) is not a lio of contempt for violating a
restraining order because the provisions of section 646.9(b) relating to violation of the restraining order
does not define a substantive offense but is merely a penalty provision. (People v. Kelley (1997) 52
Cal.App.4th 568, 576.)
Controlled Substances (Bringing into Jail) (Pen. Code § 4573)
Possession of a controlled substance in a prison, camp, jail, etc. (Pen. Code § 4573) is a lio of bringing a
controlled substance into a prison, camp, jail, etc. (People v. Nelms (2008) 165 Cal.App.4th 1465,
1474.)
Bringing controlled substance into juvenile hall (Welf & Inst. § 4573) is not a lio of bringing a controlled
substance into a prison, camp, jail, etc. (In re Edward Q. (2009) 177 Cal.App.4th 906, 908.)
Controlled Substances (Possession of) (E.g., Health and Safety Code §§ 11350, 11357,
11377)
Attempted possession of a controlled substance is not a lesser included offense of possession of a
controlled substance (Health & Saf. Code § 11350). (People v. Hamernik (2016) 1 Cal.App.5th 412,
423.)
93
Being knowingly present in any room or place where narcotics are being smoked or used (now
superseded Health & Saf. Code § 11556) is not a lio of possession of a controlled substance (now
superseded Health & Saf. Code § 11530 [marijuana]). (People v. Wilson (1969) 271 Cal.App.2d 60, 62;
accord People v. Cressey (1970) 2 Cal.3d 836, 849, fn. 16.)
Opening or maintaining a place for use of illegal drugs (Health & Saf. Code § 11366) is not a lio of
possession of a controlled substance. (People v. Ferrando (2004) 115 Cal.App.4th 917, 920; accord
People v. West (1970) 3 Cal.3d 595, 612 [former Health & Saf. Code § 11557 (the [predecessor statute
to § 11366) not lio of possession of marijuana].)
Controlled Substances (Possession of While Armed) (E.g., Health and Saf. Code §§
11370.1)
Possession of cocaine (Health & Saf. § 11350) is not a lio of possessing cocaine while armed (Health &
Saf. § 11370.1) under the elements test since the lists of controlled substances prohibited by the latter
included offenses not included in the former. (People v. Sosa (2012) 210 Cal.App.4th 946, 949; see
also People v. Jaffe (2004) 122 Cal.App.4th 1559, 1571 (taken up for review on a different issue and
never republished) [holding possessing a controlled substance, i.e., cocaine (Health & Saf. § 11350) is a
lio of possessing cocaine while armed with a loaded, operable firearm even though, unlike § 11350, §
11370.1 does not state the drug possessed must be ‘usable amount’ just “any amount” because the court
assumed the phrase “any amount” meant “usable amount.”].)
Possession of methamphetamine in violation of Health & Saf. § 11377(a) is not a lio (under the elements
test) of possession of a controlled substance while armed with a loaded firearm in violation of (Health &
Saf. § 11370.1 because a conviction for violating § 11370.1 may also be based on possession of heroin or
cocaine, among other substances, that are not included in § 11377(a). (People v. Williams (2009) 170
Cal.App.4th 587, 645.
Editor’s note: Williams was evaluating whether two convictions could both stand so it was limited to applying
the elements test. Presumably, if the complaint alleged possession of methamphetamine while armed, straight
possession of methamphetamine would be a lesser included offense.
Controlled Substances (Possession for Sale of) (E.g., Health and Saf. Code §§ 11351,
11351.5, 11359, 11378)
Possession of a controlled substance is a lio of possession for sale of a controlled substance in general.
(See People v. Oldham (2000) 81 Cal.App.4th 1, 16; People v. Crone (1997) 54 Cal.App.4th 71, 73;
People v. Adams (1990) 220 Cal.App.3d 680, 690; People v. Magana (1990) 218 Cal.App.3d 951,
954; People v. Saldana (1984) 157 Cal.App.3d 443, 454-455; People v. Shipstead (1971) 19
Cal.App.3d 58, 80; People v. Kilborn (1970) 7 Cal.App.3d 998, 1003; People v. Grant (1969) 1
Cal.App.3d 563, 571; People v. Clay (1969) 273 Cal.App.2d 279, 285.) And this holds true even when
simple possession is an infraction. (People v. Walker (2015) 237 Cal.App.4th 111, 116.)
Possession of cocaine (Health & Saf. Code § 11350) is not a lio of possession for sale of base cocaine
(Health & Saf. Code § 11351.5). (People v. Adams (1990) 220 Cal.App.3d 680, 690-691 [but
recognizing that possession of base cocaine under H&S 11350 would be].)
Possession for sale of cocaine (Health & Saf. Code § 11351) is not a lio of possession for sale of base
cocaine (Health & Saf. Code § 11351.5). (People v. Adams (1990) 220 Cal.App.3d 680, 690.)
Controlled Substances (Offer to Sell or Sale of) (E.g., Health and Saf. Code §§ 11352,
11360, 11379)
Offering to sell is a lio of selling a controlled substance - even though both offering to sell and selling are
equal violations of the sales statutes (i.e., Health & Saf. Code §§ 11352 and 11379). (People v.
Valenzuela (1995) 33 Cal.App.4th 1445, 1452.)
94
Possession of a controlled substance or possession of a controlled substance for sale (Health & Saf. Code
§ 11351.5 is not a lio of sale of a controlled substance. This is because someone can broker a sale
without being in possession of the substance. (See People v. Murphy (2007) 154 Cal.App.4th 979,
984.) Earlier cases holding to the contrary, while numerous (see People v. Francis (1969) 71 Cal.2d
66, 73-74; People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547; People v. Mitchell (1975) 53
Cal.App.3d 21, 24; People v. Clay (1969) 273 Cal.App.2d 279, 285; People v. Juarez (1966) 268
Cal.App.2d 717, 719; People v. Morrison (1964) 228 Cal.App.2d 707, 713; People v. Rosales (1964)
226 Cal.App.2d 588, 592) are no longer good law since the came to the opposite conclusion by applying
the now archaic “evidentiary test.” (See People v. Murphy (2007) 154 Cal.App.4th 979,983-984; see
also People v. Peregrina-Lagrios (1994) 22 Cal.App.4th 1522, 1524 [noting that sale of a controlled
substance “does not require possession at all, much less possession of a usable quantity” as required to
show possession].)
Possession of a controlled substance is not a lio of offering to sell a controlled substance. (See People
v. Blunt (1966) 241 Cal.App.2d 200, 203-204 [possession of marijuana in violation of now superseded
H&S 11530 not lio of offer to sell, etc marijuana in violation of now superseded H&S 11531].)
Controlled Substances (Transportation of) (E.g., Health and Saf. Code §§ 11352, 11360,
11379)
Possession of marijuana (Health & Saf. § 11357(c) is not a lio of transportation of marijuana in violation
of section 11360. (People v. Busch (2010) 187 Cal.App.4th 150, 160.)
Possession of methamphetamine in violation of Health and Safety Code section 11377 is not a lio of
transporting methamphetamine in violation of Health and Safety Code section 11379 under the elements
test. (People v. Eagle (2016) 246 Cal.App.4th 275, 279.)
Possession of a controlled substance (Health & Saf. § 11350) is not a lio of transporting a controlled
substance (Health & Saf. Code § 11351.5). (People v. Thomas (1991) 231 Cal.App.3d 299, 306
[disagreeing with older line of cases which held that where possession was shown to be incidental to, and
a necessary part of, transportation, it was a lio and noting older line inconsistent with current definition
of lio]; see also People v. Rogers (1971) 5 Cal.3d 129, 134 [“one may ‘transport’ marijuana or other
drugs even though they are in the exclusive possession of another”]; People v. Reed (2006) 38 Cal.4th
1224, 1229, fn. 2 [seriously casting into doubt older cases holding that “where defendant's possession is
incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent
possession is shown, the offense of possession is deemed to be necessarily included in the offense of
transportation, and defendant may not be convicted of both charges”]; compare People v. Grant
(1969) 1 Cal.App.3d 563, 571 [indicating now superseded H&S Code § 11500 was lio of HS Code
§11501].)
Possession for sale of a controlled substance (i.e., Health & Saf. Code § 11351) is not a lio of
transportation (i.e., Health & Saf. Code § 11351). (People v. Watterson (1991) 234 Cal.App.3d 942,
947.)
Corporal Injury to Child (Pen. Code § 273d)
Assault (Pen. Code § 240) is a lio of corporal injury on a child. (People v. Moussabeck (2007) 157
Cal.App.4th 975, 982.)
Battery (Pen. Code § 242) is a lio of corporal injury on a child. (People v. Moussabeck (2007) 157
Cal.App.4th 975, 982; People v. Sargent (1999) 19 Cal.4th 1206, 1220; People v. Stewart (1961)
188 Cal.App.2d 88, 90.)
Child abuse whether done under circumstances likely to produce death or great bodily harm (Pen. Code
§ 273a(a), former § 273a(a)(1)) or under circumstances other than those likely to produce death or great
bodily harm (Pen. Code § 273a(b), former § 273a(a)(2)) is not a lesser included offense of corporal
injury to child. (People v. Lofink (1988) 206 Cal.App.3d 161, 166 [felony child abuse]; People v.
Sheffield (1985) 168 Cal.App.3d 158, 163 [felony child abuse]; People v. Moussabeck (2007) 157
95
Cal.App.4th 975, 980-982 [misdemeanor child abuse].)
Corporal Injury on a Cohabitant: See Spousal Battery
Disturbing the Peace (Fighting on School Grounds) (Pen. Code § 415.5(a)(1))
Disturbing the peace by fighting in public (Pen. Code § 415, subd. (1)) is not a lio of disturbing the peace
by fighting on school grounds. (In re Fernando C. (2014) 227 Cal.App.4th 499, 502, 505)
Destructive Devices (Possession of) (Pen. Code § 12303 et. seq.)
Simple possession of a destructive device (Pen. Code § 12303) is a lio of recklessly or maliciously
possessing such a device (Pen. Code § 12303.2). (People v. Morse (1992) 2 Cal.App.4th 620, 648;
People v. Westoby (1976) 63 Cal.App.3d 790, 795.)
Unlawful possession of an explosive (Health & Saf. Code § 12305) is a lio of recklessly or maliciously
possessing a destructive device (Pen. Code § 12303.2). (People v. Westoby (1976) 63 Cal.App.3d 790,
795-796.)
Deterring an Executive Officer in the Performance of Lawful Duty (Pen. Code § 69)
Background info: Penal Code section 69 “sets forth two separate ways in which an offense can be
committed. The first is attempting by threats or violence to deter or prevent an officer from performing
a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or
her duty.” (People v. Smith (2013) 57 Cal.4th 232, 240; see this IPG, question 5-C at p. 19.
Assault (Pen. Code, § 240) is not a lio of deterring an executive officer in the performance of his duties
under the elements test because a “person can violate section 69 in the first way without necessarily
attempting to apply physical force.” (People v. Brown (2016) 245 Cal.App.4th 140, 152.) However,
assault is a lio of resisting by force or violence an officer and thus, it must be given under the accusatory
pleading test if both ways of violating section 69 are alleged in the complaint. (People v. Brown
(2016) 245 Cal.App.4th 140, 152; see this IPG, question 5-C at pp. 19.
Disturbing the peace (Pen. Code § 415) is not a lio of deterring an executive officer from performing a
lawful duty. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1532-1533.)
Resisting arrest (Pen. Code § 148(a)(1)) is not a lio of violating section 69 under the first way but it is a
lio of the second way of violating section 69. (People v. Smith (2013) 57 Cal.4th 232, 240; People v.
Carrasco (2008) 163 Cal.App.4th 978, 982, 985.) Thus, section 148(a)(1) is not a lesser included
offense of section 69 based on the elements test. (Smith at pp. 241-242 [and disapproving People v.
Lacefield (2007) 157 Cal.App.4th 249 “to the extent it held that section 148(a)(1) is a necessarily lesser
included offense of section 69 based upon the statutory elements of those offenses”]; accord People v.
Belmares (2003) 106 Cal.App.4th 19, 26.) However, “[w]here an accusatory pleading alleges both
ways of violating section 69, the trial court should instruct the jury that if it finds beyond a reasonable
doubt that a defendant committed either way of violating section 69, it should find the defendant guilty
of that crime. If not, the jury may return a verdict on the lesser offense of section 148(a)(1) so long as
there is substantial evidence to conclude that the defendant violated section 148(a)(1).” (Smith at p.
245, emphasis added by IPG.)
Discharge of a Firearm from a Motor Vehicle At Another Person (Pen. Code § 12034(c))
Assault with a firearm (Pen. Code § 245(a)(2)) is not a lio of discharging a firearm from a motor vehicle
at another person. (People v. Licas (2007) 41 Cal.4th 362, 365 [overruling In re Edward G. (2004)
124 Cal.App.4th 962].) The Licas court came to its conclusion under the rationale that section
12034(c), unlike assault with a firearm, does not require that the perpetrator have a present ability to
commit a violent injury on another person, i.e., defendant could fire at another person from a vehicle
without being close enough to be able to strike the targeted person. (Id. at pp. 367, 369.)
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Distribution of Harmful Matters to Minors (Pen. Code § 288.2)
Attempted misdemeanor distribution of harmful matter to a minor (Pen. Code § 313.1(a)) is a lio of
distribution of harmful matter to minor in violation of Penal Code section 288.2. (People v. Jensen
(2003) 114 Cal.App.4th 224, 244; see also People v. Nakai (2010) 183 Cal.App.4th 499, 507
[assuming without deciding Jensen correct].)
Editor’s note: In 2013, Penal Code section 288.2 was repealed and replaced. The new language may require a
re-evaluation of the holding in Jensen.
Driving Under the Influence of Alcohol or With a Per Se Level of Alcohol (Veh. Code §
23152(a)&(b)
Driving with a blood alcohol level over .10 (Veh. Code § 23152(b) is not a lio of driving under the
influence (Veh. Code § 23152(a) and vice versa. (Burg v. Municipal Court (1983) 35 Cal.3d 257, 265;
People v. Toure (2015) 232 Cal.App.4th 1096, 1105; People v. Subramani (1985) 173 Cal.App.3d
1106, 1111.)
Reckless driving is not a lio of driving under the influence. (People v. Clenney (1958) 165 Cal.App.2d
241, 249 [albeit case decided when DUI was a violation of § 501 of the Veh. Code and reckless driving
was a violation of § 505 of Veh. Code and elements were different].)
Driving Under the Influence of Drugs (Veh. Code § 23152)
Being under the influence of drugs (Health & Saf. Code § 11550) is not a lio of driving under the
influence of drugs. (People v. McGuire (1993) 14 Cal.App.4th 687, 696.)
Driving Under the Influence of Alcohol or Drugs, or With a Per Se Level of Alcohol with
Injury (Veh. Code § 23153(a)&(b))
Driving under the influence of alcohol or drugs (Veh. Code § 23152(a)) is a lio of driving under the
influence of alcohol or drugs with injury. (People v. Powell (2010) 181 Cal.App.4th 304, 314; People
v. Capetillo (1990) 220 Cal.App.3d 211, 220.)
Driving with a blood alcohol level over .08 (Veh. Code § 23152(b)) is a lio of driving with a per se level of
blood alcohol under the influence of alcohol or drugs with injury. (People v. Powell (2010) 181
Cal.App.4th 304, 314
Driving with a per se blood alcohol level with injury (Veh. Code § 23153(b)) is not a lio of driving under
the influence with injury (Veh. Code § 23153(a) and vice versa.) (People v. Toure (2015) 232
Cal.App.4th 1096, 1106; People v. Subramani (1985) 173 Cal.App.3d 1106, 1111; People v. Duarte
(1984) 161 Cal.App.3d 438, 445-446.)
Reckless driving (Veh. Code § 23101) is not a lio of driving under the influence with injury. (People v.
Schumacher (1961) 194 Cal.App.2d 335, 339 [case decided when DUI with injury was 23101 of the
Veh. Code].)
Driving Under the Combined Influence of Alcohol and Drugs with Injury (Veh. Code §
23153(f))
Driving under the influence of alcohol causing injury (Veh. Code § 23153(a)) is not a lio of driving under
the combined influence of alcohol and drugs with injury (Veh. Code § 23153(f). (People v. Cady
(2016) 7 Cal.App.5th 134, 143.)
Elder Abuse-Felony (Pen. Code § 368(b)(1))
Misdemeanor elder abuse (Pen. Code § 368(c)) is a lio of felony elder abuse (Pen. Code § 368(b)(1)).
People v. Racy (2007) 148 Cal.App.4th 1327, 1335.)
97
Embezzlement (Pen. Code § 503) (See also theft)
Theft (Pen. Code §§ 484 or 487) is not a lio of embezzlement. (People v. Vidana (2016) 1 Cal.5th 632,
648)
Escape from Prison (Forcible) (Pen. Code § 4530(b)
An attempted escape from prison without the use of force or violence in violation of Penal Code section
4530(a) is not a lio of forcible escape from prison in violation of section 4530(a)/664 under the
elements test since it requires additional proof that the prisoner actually intended to escape. (People v.
Bailey (2012) 54 Cal.4th 740, 748.)
Evading a Peace Officer with Wanton and Wilful Disregard for Safety (Veh. Code §
2800.2)
Evading a peace officer (Veh. Code § 2800.1) is a lio of evading a peace officer with wanton and wilful
disregard for safety. (People v. Springfield (1993) 13 Cal.App.4th 1674, 1680; see also People v.
Weddington (2016) 246 Cal.App.4th 468, 488-491.)
Failure to yield to an emergency vehicle (Veh. Code § 21806) is a lesser included offense of evading a
peace office with wanton and willful disregard for safety. (People v. Diaz (2005) 125 Cal.App.4th
1484, 1490.)
Editor’s note: Because Vehicle Code section 2800.2 can be violated by of “three or more violations that are
assigned a traffic violation point count under Section 12810,” each of the traffic violations alleged (whatever they
are) would be a lesser included offense of evading a peace officer with wanton and wilful disregard for safety under
the accusatory pleading test.
Evading a Peace Officer and Causing Serious Injury or Death (Veh. Code § 2800.3)
Evading a peace officer (Veh. Code § 2800.1) is a lio of evading a peace officer and causing serious injury
or death. (People v. Sewell (2000) 80 Cal.App.4th 690, 697.)
Exhibiting Firearm in Presence of an Occupant of a Motor Vehicle (Pen. Code § 417.3)
Brandishing a firearm in the presence of another person (Pen. Code § 417(a)(2) is a lio of exhibiting a
firearm in the presence of an occupant of a motor vehicle. (People v. Howard (2002) 100
Cal.App.4th 94, 99-100.)
Exhibiting Loaded Firearm at Day Care Center (Pen. Code § 417(b)
Exhibiting a non-concealable loaded firearm or a concealable firearm in a nonpublic place (Pen. Code §
417(a)(2)(B)) is a lio of exhibiting a loaded firearm at a day care center. (People v. Rivera (2002) 114
Cal.App.4th 872, 879.)
Exhibiting Weapon at Peace Officer to Prevent Detention (Pen. Code § 417.8)
Brandishing deadly weapon in rude, angry or threatening manner (Pen. Code § 417) is not a lio of
drawing a deadly weapon for purpose of resisting arrest or detention. (People v. Pruett (1997) 57
Cal.App.4th 77, 87-88.)
False Impersonation (Pen. Code § 529(a)(3) [formerly §529(3)]
False identification to an officer during a lawful detention or arrest to evade proper identification (Pen.
Code, § 148.9) is not a lio of false impersonation. (People v. Guion (2013) 213 Cal.App.4th 1426,
1436.)
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False Imprisonment (Felony) (Pen.Code § 236/237)
Misdemeanor false imprisonment is a lio of felony false imprisonment (i.e. false imprisonment effected
by violence, menace, fraud, or deceit). (People v. Matian (1995) 35 Cal.App.4th 480, 487; People v.
Babich (1993) 14 Cal.App.4th 801, 807; People v. Hendrix (1992) 8 Cal.App.4th 1458, 1463.)
Fighting in a Public Place: See Disturbing the Peace (Fighting in Public)
Fighting on School Grounds: See Disturbing the Peace (Fighting on School Grounds)
Firearms (Carrying of Concealed) (Pen. Code § 25400, formerly § 12025):
Carrying a loaded firearm in public by a nonregistered owner (Pen. Code § 25850(c)(6) [former §
12031(a)(2)(F)]) is not a lio of carrying a concealed firearm (Pen. Code § 25400(a)(6) [former §
12025(b)(6)]. (People v. Hall (2010) 183 Cal.App.4th 380, 386.)
Possession of a firearm by a felon (Pen. Code § 29800(a)(1), formerly § 12021(a)) is not a lio of carrying
a concealed weapon within a vehicle (Pen. Code § 25400, formerly § 12025(a)(1)) even where there are
priors alleged in the accusatory pleading so as to render the § 12025(a)(1) charge a felony under §
12025(b)(1) because a felon can “caused to be concealed” a firearm in a vehicle without being in
possession of the firearm. (People v. Padilla (2002) 98 Cal.App.4th 127, 138.)
Possession of a loaded firearm (Pen. Code § 25850(a), formerly § 12031(a)(1)) is not a lio of carrying a
concealed weapon at school (former Pen. Code § 626.9). (In re Joseph G. (1995) 32 Cal.App.4th 1735,
1743.)
Firearms (Carrying of While Active Participant in Criminal Street Gang) (Pen. Code §
25850(c)(3) former § 12031(a)(2)(C):
Possession of a loaded firearm for which he was not the registered owner (Pen. Code § 25850(c)(6),
formerly § 12031(a)(2)(F)) is not a lio of carrying a firearm while an active participant in a criminal
street gang (Pen. Code § 25850(c)(3), formerly § 12031(a)(2)(C)). (People v. Ramon (2009) 175
Cal.App.4th 843, 854.)
Street terrorism (Pen. Code § 186.22(a)) is a lio of carrying a firearm while an active participant in a
criminal street gang (Pen. Code § 25850(c)(3), formerly 12031(a)(2)(C). (People v. Flores (2005) 129
Cal.App.4th 174, 184; but see People v. Schoppe-Rico (2006) 140 Cal.App.4th 1370, 1382
[questioning Flores’ conclusion that a defendant “could not have committed [the street gang firearm
offense] without necessarily committing [the section 186.22(a) offense] at the same time” but then
noting that since the street gang firearm offense happened to have been committed in connection with
an underlying gang crime in Flores, the section 182.22(a) charge became a lesser included offense of
the firearm offense].)
Firearms (Shooting at Inhabited Dwelling, Vehicle, Aircraft) (Pen. Code § 246)
Assault with a deadly weapon (Pen. Code § 245) is not a lio of shooting at a vehicle. (In re Daniel R.
(1993) 20 Cal.App.4th 239, 244; see also People v. Licas (2007) 41 Cal.4th 362, 368 [citing Daniel
R. with approval].)
Grossly negligent shooting of a firearm (Pen. Code § 246.3(a)) is a lio of shooting at an inhabited
dwelling. (People v. Ramirez (2009) 45 Cal.4th 980, 990; People v. Overman (2005) 126
Cal.App.4th 1344, 1362.)
Firearms (Ex-Felon in Possession of) (Pen. Code § 29800(a)(1) (formerly 12021)
Possession of burglary tools (Pen. Code § 466) is not a lio of being an ex-felon in possession of a firearm.
(People v. Winchell (1966) 248 Cal.App.2d 580, 586.)
99
Possession of a firearm after conviction of a specified violent offense (Pen. Code § 29900(a)(1), formerly
§ 12021.1(a)) is not a lio of being an ex-felon in possession of a firearm. (People v. Sanders (2012) 55
Cal.4th 731, 737-739.)
Firearms (Possession of by Person Convicted of Specified Violent Crimes) (Pen. Code §
29900(a)(1), formerly 12021.1(a))
Being an ex-felon in possession of a firearm (Pen. Code § 29800(a)(1), formerly § 12021(a)(1)) is not a
lio of possession of a firearm after conviction of a specified violent offense. (People v. Sanders (2012)
55 Cal.4th 731, 737-739.)
Possession of a sawed-off shotgun (Pen. Code § § 33215, formerly 12020(a)) is not a lio of possession of
a firearm by a person convicted of a violent crime. (People v. Scheidt (1991) 231 Cal.App.3d 162, 165–
166; see also People v. Sanders (2012) 55 Cal.4th 731, 741.)
Firearms, Possession Without Being the Registered Owner (Pen. Code § 25850(c)(6),
formerly § 12031(a)(2)(F))
Carrying a firearm while an active participant in a criminal street gang (Pen. Code § 25850(c)(3),
formerly § 12031(a)(2)(C)) is not a lio of possession of a loaded firearm for which he was not the
registered owner (Pen. Code § 25850(c)(6), formerly § 12031(a)(2)(F). (People v. Ramon (2009) 175
Cal.App.4th 843, 854.)
Firearms (Use Enhancement) (Pen. Code § 12022.5)
Being armed with a firearm enhancement (Pen. Code § 12022(a)) is a lio of use of a firearm
enhancement (Pen. Code § 12022.5). (People v. Allen (1985) 165 Cal.App.3d 616, 627; People v.
Turner (1983) 145 Cal.App.3d 658, 684.)
Firearms (Use Enhancement) (Pen. Code § 12022.53(b)
Personal use of a deadly weapon enhancement (Pen. Code § 12022(b)) is a lio of use of a firearm
enhancement (Pen. Code § 12022.53(b). (People v. Dixon (2007) 153 Cal.App.4th 985, 1001-1002.)
Personal use of firearm enhancement (former Pen. Code § 12022.5) is a lio of the intentional discharge
of a firearm causing gbi or death enhancement of (Pen. Code § 12022.53(d). (People v. Fialho (2014)
229 Cal.App.4th 1389, 1398-1399.)
Forcible Act of Penetration: See Penetration (Forcible) with a Foreign Object (Pen. Code
§ 289(a)(1)(A))
Forgery (Pen. Code § 470(d)
“The various subdivisions of section 470 do not set out greater and lesser included offenses, but different
ways of committing a single offense, i.e., forgery.” (People v. Ryan (2006) 138 Cal.App.4th 360, 364.)
Signing the name of another or fictitious person to “an access card, sales slip, sales draft, or instrument
for the payment of money which evidences an access card transaction” (Pen. Code §484f(b)) is not a lio
of forgery (as identified in subdivision (d) of Penal Code section 470. (People v. Mitchell (2008) 164
Cal.App.4th 442, 461.)
Gross Vehicular Manslaughter (Pen. Code § 192(c)(1))
Misdemeanor vehicular manslaughter (Veh. Code § 192(c)(2)) is a lio of gross vehicular manslaughter.
(People v. Nicolas (2017) 8 Cal.App.5th 1165, 1175.)
100
Gross Vehicular Manslaughter While Intoxicated (Pen. Code § 191.5(a))
Vehicular manslaughter while intoxicated (Pen. Code § 191.5(b) [formerly § 192(c)(3)) is a lio of gross
vehicular manslaughter while intoxicated. (People v. Fields (1996) 13 Cal.4th 289, 300 fn. 2; People
v. Verlinde (2002) 100 Cal.App.4th 1146, 1165-1166.)
Vehicular manslaughter (Pen. Code § 192, subd. (c)(1)) is a lio of gross vehicular manslaughter while
intoxicated. (People v. Miranda (1994) 21 Cal.App.4th 1464, 1467.)
Driving under the influence with injury (Veh. Code § 23153(a)) is a lio of gross vehicular manslaughter
while intoxicated. (People v. Givan (2015) 233 Cal.App.4th 335, 351; Hale v. Superior Court
(2014) 225 Cal.App.4th 268, 276; People v. Miranda (1994) 21 Cal.App.4th 1464, 1468.)
Editor’s note: This assumes though that the victim of the injury is the same victim who was killed. If there were
other victims who were injured (i.e., passengers in the defendant’s car) but not killed, then the section 23153 count
would not be a lio of vehicular manslaughter while intoxicated. (See People v. Martinez [unpublished] 2009 WL
416807, *5.)
Editor’s note: For lesser included offenses of vehicular manslaughter while intoxicated (Pen. Code § 191.5(b)),
see Vehicular Manslaughter While Intoxicated.
Indecent Exposure (Pen. Code § 314)
Lewd and disorderly conduct (Pen. Code § 647(a)) is not a lio of indecent exposure. (People v.
Meeker (1989) 208 Cal.App.3d 358, 362 [and distinguishing People v. Curry (1977) 76 Cal.App.3d
181, 186-187 and People v. Swearington (1977) 71 Cal.App.3d 935, 945, both of which held to the
contrary, on the ground they were decided before the California Supreme Court defined the elements of
lewd conduct in a subsequent case]; People v. Tolliver (1980) 108 Cal.App.3d 171,174; see also
People v. Madden (1981) 116 Cal.App.3d 212, 221.)
Residential burglary (Pen. Code § 459-1st) is not a lio of unlawful entry for indecent exposure (i.e.,
felony indecent exposure). (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1768-1769.)
Inducing False Testimony (Pen. Code § 137)
Misdemeanor offense of knowingly inducing false statement to law enforcement official (Pen. Code §
137(c)) is not a lio of felony attempting by force, threat of force or fraud to induce false statement (Pen.
Code § 137(c)). (People v. Miles (1996) 43 Cal.App.4th 575, 579-580.)
Involuntary Manslaughter (Pen. Code § 192(b)) (See also Voluntary Manslaughter;
Vehicular Manslaughter)
Assault with a deadly weapon or force likely to produce gbi (Pen. Code § 245(a)(1)) is not a lio of
involuntary manslaughter. (People v. Murray (2008) 167 Cal.App.4th 1133, 1140.)
Kidnapping (Pen.Code § 207)
False imprisonment (Pen. Code § 236) is a lio of kidnapping. (People v. Delacerda (2015) 236
Cal.App.4th 282, 289; People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121; People v. Ordonez
(1991) 226 Cal.App.3d 1207, 1233; People v. Patrick (1981) 126 Cal.App.3d 952, 965; People v.
Ratcliffe (1981) 124 Cal.App.3d 808, 819-821; People v. Apo (1972) 25 Cal.App.3d 790, 796; People
v. Morrison (1964) 228 Cal.App.2d 707, 713.)
False imprisonment effected by violence (Pen. Code § 236/237 [i.e. felony false imprisonment]) is a lio
of kidnapping. (People v. Gibbs (1970) 12 Cal.App.3d 526, 547.)
Note: In People v. Castro (2006) 138 Cal.App.4th 137, the court held that misdemeanor false
imprisonment (Pen. Code § 236/237) was a lio of attempted kidnapping under the accusatory pleading
101
test where the language of the information stated not only that defendant attempted to take the victim
but that defendant “did take” the victim. (Id. at p. 144.)
Kidnapping for Ransom or Extortion (Pen. Code § 209(a))
Assault with a deadly weapon (Pen. Code § 245) is not a lio of kidnapping for extortion. (People v.
Norris (1985) 40 Cal.3d 51, 57.)
Attempted kidnapping (Pen. Code § 207/664) is a lio of kidnapping for ransom. (People v. Chacon
(1995) 37 Cal.App.4th 52, 65.)
Attempted extortion (Pen. Code § 518) is a lio of kidnapping for extortion. (People v. Eid (2014) 59
Cal.4th 650, 656.)
False imprisonment (Pen. Code § 236) is a lio of kidnapping for ransom. (People v. Eid (2014) 59
Cal.4th 650, 656; People v. Chacon (1995) 37 Cal.App.4th 52, 65.)
Kidnapping (Pen. Code § 207) is not a lio of kidnapping for ransom or extortion because kidnapping for
ransom, in violation of section 209(a), does not require either asportation or the use or threat of force.
(People v. Greenberger (1997) 58 Cal.App.4th 298, 368 fn. 56.)
Kidnapping for Robbery or Sexual Assault (Pen. Code § 209(b))
Simple kidnapping (Pen. Code § 207) is a lio of kidnapping with the intent to commit robbery. (People
v. Montes (2014) 58 Cal.4th 809, 874; People v. Lewis (2008) 43 Cal.4th 415, 518; People v. Davis
(1987) 191 Cal.App.3d 1365, 1368; People v. John (1983) 149 Cal.App.3d 798, 810; People v. Bailey
(1974) 38 Cal.App.3d 693, 699;
False imprisonment (Pen. Code § 236) is a lio of kidnapping for rape. (People v. Jandres (2014) 226
Cal.App.4th 340, 362; People v. Shadden (2001) 93 Cal.App.4th 164, 171.)
Robbery (Pen. Code § 211) is not a lio of of kidnapping with the intent to commit robbery (People v.
Lewis (2008) 43 Cal.4th 415, 518-519 [and noting a robbery need not be completed for a defendant to
be found guilty of kidnapping for robbery].)
Kidnapping During Commission of a Carjacking (Pen.Code § 209.5)
Carjacking (Pen. Code § 215) is a lio of kidnapping during the commission of a carjacking. (People v.
Dowdell (2014) 227 Cal.App.4th 1388, 1416; People v. Duran (2001) 88 Cal.App.4th 1371, 1374:
People v. Contreras (1997) 55 Cal.App.4th 760, 765.) So is attempted carjacking. (People v.
Medina (2007) 41 Cal.4th 685, 701-702; People v. Jones (1999) 75 Cal.App.4th 616, 626-627.)
Joyriding (Pen. Code § 499b) is not a lio of kidnapping during commission of a carjacking. (People v.
Russell (1996) 45 Cal.App.4th 1083, 1088-1089.)
Kidnapping (Pen. Code § 207) is a lio of kidnapping during commission of a carjacking. (People v.
Ortiz (2012) 208 Cal.App.4th 1354, 1368.) Attempted kidnapping (Pen. Code § 207/664) is a lio of
kidnapping during commission of a carjacking. (People v. Medina (2007) 41 Cal.4th 685,701-702.)
Unlawful taking or driving a vehicle (Veh. Code § 10851) is not a lio of kidnapping during commission of
a carjacking. (People v. Russell (1996) 45 Cal.App.4th 1083, 1088-1089.)
Lewd Act on a Child -Forcible (Pen. Code § 288(b))
Lewd act on a child (Pen. Code § 288(a)) is a lio of forcible lewd act on a child. (People v. Chan
(2005) 128 Cal.App.4th 408, 421; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321-1322;
People v. Ward (1986) 188 Cal.App.3d 459, 472.)
102
Editor’s note: Although battery (Pen. Code, § 242) is not a lio of a nonforcible lewd act on a child (see People v.
Shockley (2013) 58 Cal.4th 400, 403–406), it may be a lio of a forcible lewd act.
Lewd Act on a Child (Pen. Code § 288(a))
Battery (Pen. Code § 242) is not a lio of committing a lewd act upon a child under the age of 14 in
violation of section 288(a). (People v. Shockley (2013) 58 Cal.4th 400, 406 [disapproving People v.
Thomas (2007) 146 Cal.App.4th 1278, 1293]; accord People v. Santos (1990) 222 Cal.App.3d 723,
739.
Child annoyance (Pen. Code § 647.6) is not a lio of committing a lewd act upon a child under the age of
14. (People v. Lopez (1998) 19 Cal.4th 282, 285 [disapproving a long line of cases to contrary re:
predecessor statute - § 647a].)
Contributing to the delinquency of a minor (Pen. Code § 272) is not a lio of a lewd act upon a child
under the age of 14. (People v. Memro (1995) 11 Cal.4th 786, 872-873; People v. Vincze (1992) 8
Cal.App.4th 1159, 1164.)
Unlawful sexual intercourse, i.e, statutory rape (Pen. Code § 261.5) is not a lio of committing a lewd act
upon a child under the age of 14. (People v. Montero (1986) 185 Cal.App.3d 415, 433; People v.
Gordon (1985) 165 Cal.App.3d 839, 862-864.)
Rape (Pen. Code, § 261) is not a lio of committing a lewd act upon a child under the age of 14. (People
v. Montero (1986) 185 Cal.App.3d 415, 433.)
Sodomy (Pen. Code, § 286(c)) is not a lio of committing a lewd act upon a child under the age of 14.
(People v. Gordon (1985) 165 Cal.App.3d 839, 862-864 [noting attempted sodomy is also not a lio of §
288].)
Lewd Act on a Child by Someone 10 Years Older or a Caretaker (Pen. Code § 288(c))
Battery (Pen. Code § 242) is not a lio of committing a lewd act upon a child by someone 10 years older
(Pen. Code § 288(c)) since battery of not a lio of committing a lewd act on a child. (See People v.
Shockley (2013) 58 Cal.4th 400, 406 [overruling People v. Thomas (2007) 146 Cal.App.4th 1278,
1293 which had held battery is a lio of a lewd act on a child.)
Lewd Act on a Child-3 or More Acts of Substantial Sexual Conduct (Pen. Code § 288.5)
Lewd act on a child (Pen. Code § 288) is not a lio of 3 or more acts of substantial sexual conduct (Pen.
Code § 288.5). (People v. Avina (1993) 14 Cal.App.4th 1303, 1313-1314; see also People v. Johnson
(2002) 28 Cal.4th 240, 246 [“continuous sexual abuse and other sexual offenses, lacking certain
common elements, do not stand in the relation of greater and lesser included offenses”]; People v.
Torres (2002) 102 Cal.App.4th 1053, 1057 [“although some of the same acts may underlie the
continuous sexual abuse conviction and the specific sex offenses, the specific counts are not lesser
included offenses of a violation of section 288.5"]; accord People v. Palmer (2001) 86 Cal.App.4th
440, 445; People v. Valdez (1994) 23 Cal.App.4th 46, 47-48.)
Lewd Act on a Dependent Adult by a Caretaker (Pen. Code § 288(c)(2).)
Battery (Pen. Code § 242) is not a lio of lewd act on a dependent adult by a caretaker in violation of Penal
Code section 288(c)(2)). (People v. Chenelle (2016) 4 Cal.App.5th 1255, 1259.)
Luring a Child (Pen. Code § 288.3): See Contacting a Minor with the Intent to Commit a
Sexual Offense
103
Lynching (Pen. Code § 405a)
The misdemeanor offenses of rout, unlawful assembly, and remaining present at a place of riot or rout or
unlawful assembly (respectively Penal Code §§ 406, 407 and 409) are lesser and necessarily included
offenses within the offense of lynching. (People v. Patino (1979) 95 Cal.App.3d 11, 23.)
Manslaughter- Vehicular: See Vehicular Manslaughter
Manufacture, Distribution, or Sale of False Citizenship Documents (Pen. Code § 113)
Manufacture or sale of false government documents (Pen. Code § 112) is not a lio of manufacturing,
distributing, or selling false citizenship documents. (People v. Valladares (2009) 173 Cal.App.4th
1388, 1396 [and noting that section 112 and 113 are essentially the same offense, with a different penalty,
i.e., it is wobbler divided into two different statutes].)
Possession of a counterfeit government seal (Pen. Code § 472) is a lio of manufacturing, distributing, or
selling false citizenship documents. (People v. Valladares (2009) 173 Cal.App.4th 1388, 1396.)
Mayhem (Pen. Code § 203)
Assault (Pen. Code § 240) is a lio of mayhem, where the assault is a continuing event and the mayhem
results during the course of the assault. (See People v. Ausbie (2004) 123 Cal.App.4th 855, 860, fn.
2; People v. De Angelis (1979) 97 Cal.App.3d 837, 841; see also People v. Quintero (2006) 135
Cal.App.4th 1152, 1168.)
Assault by means of force likely to produce great bodily injury (Pen. Code § 245(a)(1) is not a lio of
mayhem. (People v. Ausbie (2004) 123 Cal.App.4th 855, 859, 862 [and noting assailant might use
force not likely to cause gbi but nonetheless producing a disfiguring result]; see also People v.
Quintero (2006) 135 Cal.App.4th 1152, 1168.)
Assault with a deadly weapon (Pen. Code § 245(a)(1) is not a lio of mayhem. (People v. Solis (2015)
232 Cal.App.4th 1108, 1116; People v. Ausbie (2004) 123 Cal.App.4th 855, 863, fn. 5.)
Battery (Pen. Code § 242) is a lio of mayhem. (People v. Ausbie (2004) 123 Cal.App.4th 855, 860, fn.
2.)
Battery with serious bodily injury (Pen. Code § 243(d) is not a lio of mayhem. (People v. Poisson
(2016) 246 Cal.App.4th 121, 125.)
Editor’s note: Poisson distinguished earlier cases holding to the contrary (i.e., People v. Ausbie (2004) 123
Cal.App.4th 855, 859 and People v. Quintero (2006) 135 Cal.App.4th 1152, 1168) as no longer valid in light of
the holding in People v. Santana (2013) 56 Cal.4th 999 that simple mayhem does not require proof of “serious
bodily injury.” (Poisson at pp. 124-125.)
Mayhem -Aggravated (Pen. Code § 205)
Assault (Pen. Code § 240) is a lio of aggravated mayhem. (People v. Quintero (2006) 135
Cal.App.4th 1152, 1168.)
Assault by means of force likely to produce great bodily injury (Pen. Code § 245(a)) is not a lio of
aggravated mayhem. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1168.)
Assault with a deadly weapon (Pen. Code § 245(a)) is not a lio of aggravated mayhem. (People v.
Quintero (2006) 135 Cal.App.4th 1152, 1168.)
Battery with serious bodily injury (Pen. Code § 243(d) is a lio of aggravated mayhem. (People v.
Quintero (2006) 135 Cal.App.4th 1152, 1168 but see unpublished portion of People v. Pre (2004) 117
Cal.App.4th 413 [battery with serious bodily injury (Pen. Code § 243(d)) is not a lio of aggravated
104
mayhem (Pen. Code § 205)]
Mayhem (Pen. Code § 203) is a lio of aggravated mayhem. (People v. Robinson (2014) 232
Cal.App.4th 69, 79.)
Murder (Pen. Code § 187 - Human Being) (See also Murder of a Fetus, Manslaughter
(Voluntary))
First degree premeditated murder, is not a lio of felony murder. Although their elements differ, first
degree premeditated murder and felony murder are different theories of the “single statutory offense of
murder.” (People v. Valdez (2004) 32 Cal.4th 73, 114, fn. 17; People v. Wilson (2008) 43 Cal.4th 1,
16, fn. 5.)
The Valdez court did not address the question of whether second degree murder is a lesser offense of
felony-murder, but it did note the argument made by the Attorney General that second-degree murder
requires malice and felony-murder does not. (Id. at pp. 114-115, fn. 17.)
Second degree (express or implied malice) murder is a lio of a first degree (malice) murder. (People v.
Taylor (2010) 48 Cal.4th 574, 623; People v. Bradford (1997) 15 Cal.4th 1229, 1345; People v.
Cooper (1991) 53 Cal.3d 771, 827.)
Second degree (malice) murder is probably not a lio of first degree felony murder. The California
Supreme Court has expressly declined to decide “whether second degree murder is a lesser included
offense when, as here, the prosecution proceeds solely on the theory that the killing is first degree
murder under the felony-murder rule and does not argue that the killing is first degree murder because it
is willful, deliberate, and premeditated.” (People v. Romero (2008) 44 Cal.4th 386, 402; People v.
Valdez (2004) 32 Cal.4th 73, 114-115, fn. 17; see also People v. Taylor (2010) 48 Cal.4th 574, 623;
People v. Wilson (2008) 43 Cal.4th 1, 16; People v. Huynh (2012) 212 Cal.App.4th 285, 314; but
see People v. Jenkins (2006) 140 Cal.App.4th 805, 817-818 [finding, under accusatory pleading test,
second degree murder based upon malice was a necessarily included offense of the charged offense of
first degree murder (alleged as murder with malice aforethought) even though prosecutor proceeded
solely on felony murder theory].) Nonetheless, California Supreme Court decisions defining the
elements of felony murder indicate that second degree murder is not a lesser included offense of felony
murder because malice is not an element of felony murder. (See People v. Cavitt (2004) 33 Cal.4th
187, 197; People v. Balderas (1985) 41 Cal.3d 144, 197; see also People v. Huynh (2012) 212
Cal.App.4th 285, 314 [noting that “[w]here the evidence points indisputably to a killing committed in the
perpetration of one of the felonies section 189 lists, the only guilty verdict a jury may return is first
degree murder” and rejecting defense argument that since all of the listed felonies are “inherently
dangerous to life or pose a significant prospect of violence,” committing one of them is tantamount to
implied malice]; People v. Anderson (2006) 141 Cal.App.4th 430, 444-448 [assuming arguendo that
if felony murder were the only crime charged, second degree murder and voluntary manslaughter would
not be lesser included offenses but finding, under accusatory pleading test, lios of second degree and
voluntary manslaughter should have been given where information specifically stated murder was
committed with malice aforethought and felony murder language was only belatedly added].)
Second degree felony murder can be a lio of first degree felony murder. (See People v. Beames
(2006) 40 Cal.4th 907, 928.) For example, in People v. Blair (2005) 36 Cal.4th 686, the defendant
was charged with, and convicted of, first degree murder under a theory the murder was perpetrated by
means of poison. The court held that, in general, if a jury is “not satisfied that a defendant acted with
either express or implied malice, it may find the defendant guilty of second degree murder on a [second
degree] felony murder theory.” (Id. at p. 745, bracketed words added by IPG.) The Blair court pointed
out that when a person violates Penal Code section 347 (which prohibits the willful mingling of any
poison or harmful substance with any food, drink, medicine, or pharmaceutical product ... where the
person knows or should have known that the same would be taken by any human being to his or her
injury) and death results either accidentally or negligently, he or she may be guilty of second degree
felony murder. (Id. at p. 745.) In such a circumstance, it is not necessary that there exists an intent to
kill or even a conscious disregard for life, all that need be shown is the intent to injure or intoxicate the
victim. Accordingly, the court concluded that defendant was entitled to an instruction on second degree
105
felony murder if there was evidence from which reasonable jurors could have concluded that defendant
intended only to injure the victim when he poisoned her. (Id. at p. 745 [albeit finding, there was not
sufficient evidence of merely an intent to injure the victim to justify giving the lio of second degree felony
murder]; see also People v. Cole (2004) 33 Cal.4th 1158, 1218-1219 [assuming, arguendo, that
defendant charged with first degree felony murder based on arson could theoretically be entitled to lio of
second degree felony murder based on unlawfully causing a fire in violation of Penal Code section 452
but finding lack of substantial evidence defendant recklessly set fire to bed of victim without also
intending to burn her house].)
Editor’s note: Presumably giving an instruction on second degree felony murder as a lio would only apply in
circumstances where there is evidence the underlying crime is an inherently dangerous felony that does not merge
with the killing itself. (See People v. Chun (2009) 45 Cal.4th 1172.)
Voluntary manslaughter (Pen. Code § 192(a)) is a lio of murder based on malice or implied malice.
(People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Randle (2005) 35 Cal.4th 987, 994.)
But no instruction on either voluntary manslaughter or attempted voluntary manslaughter should be
given if there is not substantial evidence of provocation, heat of passion, or imperfect self-defense. (See
People v. Gutierrez (2003) 112 Cal.App.4th 704, 708-710.)
Editor’s note: Courts, however, sometimes simply state that voluntary manslaughter is a lio of murder without
drawing a distinction between a malice murder and a felony murder. (See e.g., People v. Booker (2011) 51
Cal.4th 141, 181.)
Voluntary manslaughter (Pen. Code § 192(a)) is not a lio of murder based on a first-degree felony
murder theory. (See People v. Balderas (1985) 41 Cal.3d 144, 197 [noting “neither ‘heat of passion’
nor provocation can ever reduce a murder properly based on the felony-murder doctrine to voluntary
manslaughter]; People v. Price (2017) 8 Cal.App.5th 409, 430 [“Voluntary manslaughter thus is not a
lesser included offense of felony murder.”]; People v. Anderson (2006) 141 Cal.App.4th 430, 444
[assuming arguendo that if felony murder were the only crime charged voluntary manslaughter would
not be lesser included offense]; see also People v. Redd (2010) 48 Cal.4th 691, 733 [implicitly
assuming possibility that voluntary manslaughter could be a lio in a felony murder case but finding no
need to give it in absence of evidence that crime was anything but a felony-murder].)
Voluntary manslaughter (Pen. Code § 192(a)) is not a lio of murder when the murder is based on a
second-degree felony murder theory (i.e., where the defense is that defendant killed without malice in
the commission of an inherently dangerous assaultive felony). This is because “[a] defendant who has
killed without malice in the commission of an inherently dangerous assaultive felony must have killed
without either an intent to kill or a conscious disregard for life.” (People v. Bryant (2013) 56 Cal.4th
959, 970.) And “[s]uch a killing cannot be voluntary manslaughter because voluntary manslaughter
requires either an intent to kill or a conscious disregard for life.” (Ibid [and overruling People v.
Garcia (2008) 162 Cal.App.4th 18, 31 to the extent it suggested that an unlawful killing during the
commission of an inherently dangerous felony, even if unintentional, is at least voluntary
manslaughter”]; accord People v. Landry (2016) 2 Cal.5th 52, 98.)
“Editor’s note: Under the felony-murder rule, a defendant who kills in the commission of an inherently
dangerous felony not enumerated in Penal Code section 189 is liable for second degree murder. However, under
the merger doctrine, if that inherently dangerous felony “is assaultive in nature,” the felony-murder rule does not
apply, and a defendant may not be found guilty of murder under that theory (i.e., without proof of malice).
(People v. Bryant (2013) 56 Cal.4th 959, 970 citing to People v. Chun (2009) 45 Cal.4th 1172, 1200.) “[A]
killing without malice in the commission of a noninherently dangerous felony would constitute involuntary
manslaughter if ‘committed without due caution and circumspection.’” (Bryant at p. 966 citing to People v.
Burroughs (1984) 35 Cal.3d 824, 835.)
Involuntary manslaughter (Pen. Code § 192(b)) is a lio of a malice murder. (People v. Thomas (2012)
53 Cal.4th 771, 813; People v. Abilez (2007) 41 Cal.4th 472, 515; People v. Lee (1999) 20 Cal.4th 47,
60-61; People v. McDonald (2015) 238 Cal.App.4th 16, 33, fn. 40; People v. Butler (2010) 187
Cal.App.4th 998, 1006.) It is not, however, a lio of voluntary manslaughter since voluntary
manslaughter can be committed without committing involuntary manslaughter. (People v. Orr (1994)
22 Cal.App.4th 780, 784.) Moreover, involuntary manslaughter is not a lio of murder when the acts
106
underlying the commission of the involuntary manslaughter are committed in the driving of a vehicle.
(See People v. Ferguson (2011) 194 Cal.App.4th 1070, 1082; Pen. Code, § 192(b) [“This subdivision
shall not apply to acts committed in the driving of a vehicle.”].)
Whether involuntary manslaughter is a lesser included offense of felony murder (which has no malice
requirement) is not fully resolved. (See People v. Yu (unpublished) 2013 WL 1618828, at *5.) It may
be where the defendant is charged with felony murder under an aiding and abetting theory. In People
v. McDonald (2015) 238 Cal.App.4th 16, the defendant was convicted of being an aider and abettor in
a robbery felony murder case. The case was reversed. On remand, the appellate court instructed the
trial court that if it were to find sufficient evidence to give instructions on grand theft as a lesser included
offense of the target offense of robbery, it should also instruct on involuntary manslaughter. This is
because grand theft is not an inherently dangerous felony and could not support a second-degree felony
murder conviction but the jury could find defendant was guilty of involuntary manslaughter based on
the fact the victim was killed in the commission of a felony that was not inherently dangerous. (Id. at p.
33, fn. 42.)
An instruction on “involuntary manslaughter as a lesser included offense must be given when a rational
jury could entertain a reasonable doubt that an unlawful killing was accomplished with implied malice
during the course of an inherently dangerous assaultive felony.” (People v. Brothers (2015) 236
Cal.App.4th 24, 33–34, emphasis added by IPG.)
Gross vehicular manslaughter while intoxicated (Pen. Code § 191.5(a)) is not a lio of murder. (People
v. Sanchez (2001) 24 Cal.4th 983, 985, 991-992 [also indicating the same analysis would hold true for
all forms of vehicular manslaughter]; People v. Johnson (2016) 6 Cal.App.5th 505, 512; People v.
Batchelor (2014) 229 Cal.App.4th 1102, 1116; People v. Doyle (2013) 220 Cal.App.4th 1251, 1265;
People v. Johnigan (2011) 196 Cal.App.4th 1084, 1093.)
Attempted murder (and/or attempted voluntary manslaughter) is not a lio of an implied malice murder.
A person may be convicted of murder based on implied malice (i.e., when a defendant acts with a
conscious disregard for life). (Pen. Code § 188; People v. Taylor (2004) 32 Cal.4th 863, 867-868.)
However, the crime of attempted murder requires an intent to kill. (People v. Parks (2004) 118
Cal.App.4th 1, 4, fn. 3; People v. Montes (2003) 112 Cal.App.4th 1543, 1549-1550.) As does the crime
of attempted voluntary manslaughter. (People v. Montes (2003) 112 Cal.App.4th 1543, 1549.) Thus,
where a defendant is charged with murder or voluntary manslaughter and there is no evidence of an
intent to kill, a defendant is not entitled to an instruction on the lesser included offense of attempted
murder or attempted voluntary manslaughter. (People v. Gutierrez (2003) 112 Cal.App.4th 704, 710.)
Accessory after the fact (Pen. Code § 32) is not a lio of murder. (People v. Schmeck (2005) 37 Cal.4th
240, 291; People v. Majors (1998) 18 Cal.4th 385, 408; see also People v. Markus (1978) 82
Cal.App.3d 477, 480 [accessory to felony is not a lio of any crime where guilt as a principal is alleged].)
Assault (Pen. Code § 240) is not a lio of murder. (People v. Fenenbock (1996) 46 Cal.App.4th 1688,
1707.)
Assault with a deadly weapon/force likely to cause gbi (Pen. Code § 245(a)(1) & (a)(4), formerly both
included in § 245(a)(1)) is not a lio of murder. (People v. Benjamin (1975) 52 Cal.App.3d 63, 71;
accord In re Johnny V. (1978) 85 Cal.App.3d 120, 135) or even attempted murder (People v.
Young (1981) 120 Cal.App.3d 683, 690; accord People v. Daly (1992) 8 Cal.App.4th 47, 58 [assault
with a firearm on a police officer is not a lio of att. murder].) This is because murder can be committed
without committing an assault with a deadly weapon (People v. Sanchez (2001) 24 Cal.4th 983, 988)
or by means of force likely to produce great bodily injury (People v. Benjamin (1975) 52 Cal.App.3d
63, 71 [noting one can commit a murder by withholding food and drink from an invalid].)
Assault with a firearm (Pen. Code § 245(a)(2)) is not a lio of attempted murder. (People v. Bragg
(2008) 161 Cal.App.4th 138, 1397; People v. Parks (2004) 118 Cal.App.4th 1, 6; People v. Cook
(2001) 91 Cal.App.4th 910, 918-919.)
107
Assault on a child with force likely to cause GBI by a caretaker of the child which results in death (Pen.
Code § 273ab) is not a lio of murder. (People v. Malfavon (2002) 102 Cal.App.4th 727, 743-744 [and
finding it was not a lesser included offense under the statutory pleading test].
Battery (Pen. Code § 242) is not a lio of murder. (People v. Fenenbock (1996) 46 Cal.App.4th 1688,
1707.)
Brandishing (Pen. Code § 417) is not a lio of murder. (People v. Beach (1983) 147 Cal.App.3d 612,
626.)
Conspiracy to commit second degree murder is not a lio of conspiracy to commit murder. (People v.
Vargas (2001) 91 Cal.App.4th 506, 547.)
Mayhem (Pen. Code § 203) is not a lio of murder. (People v. Fenenbock (1996) 46 Cal.App.4th 1688,
1707.)
Murder (Pen. Code § 187 -Fetus) (See also Murder of a Human Being, Manslaughter
(Voluntary)
Attempted murder of a fetus (Pen. Code § 187) is not a lio of murder where defendant is charged only
with murder of a human being. (See People v. Taylor (2004) 119 Cal.App.4th 628, 641 [no right to
instruction on attempted murder of fetus where defendant struck pregnant girlfriend causing the child to
be born prematurely that day and the prematurity of the birth contributed substantially to causing the
death of the child died one month later; and defendant was charged with murder of human being, not
murder of fetus].)
Manslaughter is not a lesser included offense of murder of a fetus. (People v. Brown (1995) 35
Cal.App.4th 1585, 1592.)
Murder -Attempted (Pen. Code § 187/664)
Assault with a deadly weapon (Pen. Code § 245(a)(1)) is not a lio of attempted murder. (People v.
Alarcon (2012) 210 Cal.App.4th 432, 439.)
Battery with serious bodily injury (Pen. Code § 243(d)) is not a lesser included offense of attempted
murder. (People v. Toro (1989) 47 Cal.3d 966, 972.)
Attempted voluntary manslaughter (Pen. Code 192(a)) is a lio of attempted murder. (People v.
Beltran (2013) 56 Cal.4th 935, 942; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1136; People
v. Speight (2014) 227 Cal.App.4th 1229, 1241.)
Murder – Premeditated Attempted (Pen. Code § 187/664)
Assault with a deadly weapon (Pen. Code § 245(a)(1)) is not a lio of premeditated attempted murder.
(People v. Solis (2015) 232 Cal.App.4th 1108, 1116.)
Attempted murder is not a lesser included offense of premeditated attempted murder. (People v.
Favor (2012) 54 Cal.4th 868, 879; People v. Douglas (1990) 220 Cal.App.3d 544, 549; see also
People v. Sedillo (2015) 235 Cal.App.4th 1037, 1049 [“attempted murder and premeditated attempted
murder are the same offense” – the premeditated attempted murder provision “is separate from the
underlying offense and does not set forth elements of the offense or a greater degree of the offense
charged” – however, attempted murder was treated as a lesser included offense for statute of limitations
purposes].)
Mayhem (Pen. Code § 203) is not a lio of premeditated attempted murder. (People v. Solis (2015)
232 Cal.App.4th 1108, 1116.)
108
Oral Copulation (Forcible) (Pen. Code § 288a(a)&(c)
Nonforcible oral copulation of a minor (Pen. Code § 288a(b)(1) is a lio of forcible oral copulation of a
minor under section 288a (c)(2)(C). (People v. Woods (2015) 241 Cal.App.4th 461, 474–475.)
Sexual battery (Pen. Code § 243.4(a)) is not a lio of forcible oral copulation. (People v. Muniz (1989)
213 Cal.App.3d 1508, 1517.)
Oral Copulation (Forcible) of a Minor in Concer (Pen. Code § 288a(d)(3))
Nonforcible oral copulation of a minor (Pen. Code § 288a(b)(1)) is a lio of forcible oral copulation of a
minor in concert under section 288a (d)(3). (People v. Woods (2015) 241 Cal.App.4th 461, 474–475.)
Oral Copulation on a Minor (Pen. Code § 288a(b)(1))
Contacting a minor with the intent to commit a sexual offense (e.g., oral copulation) is not a lio of
attempted oral copulation of a minor in violation of section 288a(b)(1)/664. (People v. Medelez
(2016) 2 Cal.App.5th 659, 661.)
Oral Copulation with a Child Under 10 (Pen. Code § 288.7(b)
Attempted sodomy with a child under 10 (Pen. Code § 288.7(a)) is not a lio of sexual intercourse with a
child under 10. (People v. Mendoza (2015) 240 Cal.App.4th 72, 83-84.)
Oral Copulation on an Unconscious Person (Pen. Code § 288a(f)(3))
Battery (Pen. Code § 242) is a lio of oral copulation on an unconscious person. (People v.
Stuedemann (2007) 156 Cal.App.4th 1, 9, fn. 6.)
Oral copulation of a person too intoxicated to resist (Pen. Code § 288a(i)) is not a lio of oral copulation
of an unconscious person. (People v. Gonzalez (2014) 60 Cal.4th 533, 539.)
Oral Copulation of a Person Too Intoxicated to Resist (Pen. Code § 288a(i))
Oral copulation of an unconscious person (Pen. Code § 288a(f)) is not a lio of oral copulation of a
person too intoxicated to resist. (People v. Gonzalez (2014) 60 Cal.4th 533, 539.)
Penetration (Forcible) with a Foreign Object (Pen. Code § 289(a)(1)(A))
Sexual battery in violation of section Penal Code section 243.4(e)(1) is not a lio of forcible sexual
penetration in violation of section 289(a)(1)(A) under the statutory elements test because forcible sexual
penetration could be committed without the touching required to commit sexual battery. (People v.
Ortega (2015) 240 Cal.App.4th 956, 966-967 [albeit finding it was under accusatory pleading test].)
Penetration with a Foreign Object on an Unconscious Person (Pen. Code § 289(d)(3)
Battery (Pen. Code § 242) is a lio of rape by a foreign object on an unconscious person. (People v.
Stuedemann (2007) 156 Cal.App.4th 1, 9, fn. 6.)
Penetration with a Foreign Object by Artifice or Pretense (Pen. Code § 289(f))
Assault with intent to commit rape or other sexual offense (Pen. Code § 220) is not a lio of sexual
penetration with a foreign object by artifice or pretense in violation of section 289, subdivision (f))
(People v. Leal (2009) 180 Cal.App.4th 782, 793.)
Penetration with a Foreign Object on a Child Aged 10 or Younger (Pen. Code § 288.7(b))
Attempted sexual penetration of a child, as defined in Section 289, with a child who is 10 years of age or
109
younger is a lio of the substantive offense (Pen. Code 288.7(b)). (People v. Ngo (2014) 225
Cal.App.4th 126, 157; see also People v. Mendoza (2015) 240 Cal.App.4th 72, 83, fn. 10.)
Pimping (Pen. Code § 266(h)
Prostitution (Pen. Code § 647b) is not a lio of pimping. (People v. Gibson (2001) 90 Cal.App.4th 371,
386.)
Possession (Reckless or Malicious) of an Explosive Device (Pen. Code § 12303.2)
Simple possession of an explosive or destructive device (Pen. Code § 12303) is a lio of reckless or
malicious possession of an explosive or destructive device. (People v. Morse (1992) 2 Cal.App.4th
620, 648.)
Preventing or Dissuading Witness from Attending or Giving Testimony Under Certain
Circumstances (Pen. Code § 136.1(c))
Attempting to preventing or dissuade a witness (Pen. Code § 136.1(b)) is a lio of preventing or
dissuading a witness accompanied by various circumstances (Pen. Code § 136.1(c)). (People v.
Brenner (1992) 5 Cal.App.4th 335, 341; People v. Upsher (2007) 155 Cal.App.4th 1311, 1321 [§
136.1(b)(1) is a lio of § 136.1(c)(3)].)
Preventing or Dissuading a Victim or Witness from Causing Charges to be Sought and
Prosecuted or from Assisting the Prosecution (Pen. Code § 136.1(b)(2)
Knowingly inducing another person to give false testimony or material information, or withhold true
testimony or material information pertaining to a crime (Pen. Code, § 137(c) is not a lio of preventing or
dissuading a victim or witness in violation of Penal Code section 136.1(b)(2). (People v. Brown (2016)
6 Cal.App.5th 1074, 1081.)
Rape (Pen. Code § 261)
Assault (Pen. Code § 240) is a lio of rape by force or fear (Pen. Code § 261(a)(2)). (People v. Lema
(1987) 188 Cal.App.3d 1541, 1545; People v. Krupa (1944) 64 Cal.App.2d 592, 597.)
Assault (Pen. Code § 240) is not a lio of attempted rape. (People v. Rundle (2008) 43 Cal.4th 76, 143
[assault].)
Assault with intent to commit rape or other sexual offense (Pen. Code § 220) is not a lio of rape by
artifice or pretense in violation of section 261(a)(5). (People v. Leal (2009) 180 Cal.App.4th 782, 793.)
Attempted rape of an unconscious person is not a lio of rape of unconscious person in violation of Penal
Code section 261(a)(3). (People v. Braslaw (2015) 233 Cal.App.4th 1239, 1251-1252 [distinguishing
two older Supreme Court cases (People v. Atkins (2001) 25 Cal.4th 76, 81–82 and People v. Kelly
(1992) 1 Cal.4th 495, 528) that had suggested attempted rape might, at least in some circumstances, be a
lesser included offense of rape on ground they pre-dated People v. Bailey (2012) 54 Cal.4th 740, 752,
and neither applied the elements test set forth in that case]; see also this IPG, questions 13 at p. 55 and
33-B at p. 82 [discussing Bailey];People v. Mendoza (2015) 240 Cal.App.4th 72, 83 [holding
attempted sexual intercourse, attempted sodomy and attempted oral copulation with a child 10 years of
age or younger are not lesser included offenses of the charged general intent crimes]; but see People
v. Sims (unpublished) 2013 WL 6271372, at *6 [stating Bailey cited to Kelly “without criticism” and
that “the specific intent required both for attempted forcible rape and for attempted forcible oral
copulation is not a ‘particularized intent that goes beyond what is required by the completed offense’ of
forcible rape or forcible oral copulation.”], emphasis added by IPG.)
Editor’s note: For a more extensive discussion of whether attempted rape is a lesser included of rape, see this
this IPG, questions 13, at pp. 55-56.
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Battery (Pen. Code § 242) is a lio of rape by force or fear (Pen. Code § 261(a)(2)). (People v.
Guiterrez (1991) 232 Cal.App.3d 1624, 1636; People v. Lema (1987) 188 Cal.App.3d 1541, 1545.)
However, battery is not a lio of attempted rape. (People v. Marshall (1997) 15 Cal.4th 1, 39.)
Battery (Pen. Code § 242) is not a lio of rape of an unconscious person (Pen. Code § 261(a)(4)) because
there is no requirement that the defendant use force or violence to accomplish the act of sexual
intercourse. (People v. Manning (2014) 226 Cal.App.4th 1133, 1140; People v. Hernandez (2011)
200 Cal.App.4th 1000, 1006.)
Lewd conduct (Pen. Code § 288(a) is not a lio of rape. (People v. Benavides (2005) 35 Cal.4th 69,
97; People v. Montero (1986) 185 Cal.App.3d 415, 433 [forcible lewd conduct not a lio of rape].)
Unlawful sexual intercourse with a minor, i.e, statutory rape (Pen. Code § 261.5), is not a lio of rape.
(People v. Woods (2015) 241 Cal.App.4th 461, 475 [and noting that none of the substantive
subdivisions ((b), (c), or (d)) of section 261.5 are lios of forcible rape in violation of section 261(a)(2)];
People v. Montero (1986) 185 Cal.App.3d 415, 433; People v. Gutierrez (1982) 137 Cal.App.3d 542,
548; People v. Chapman (1975) 47 Cal.App.3d 597, 603.)
Receiving Stolen Property (Pen. Code § 496)
Failure to return lost property is not a lio of receiving stolen property. (In re Greg F. (1984) 159
Cal.App.3d 466, 469.)
Theft (Pen. Code § 484) is not a lio of receiving stolen property. (People v. Ceja (2010) 49 Cal.4th 1,
6.)
Reckless Driving (Veh. Code § 23103)
Speeding in excess of 100 mph (Veh. Code § 22348) is not a lio of reckless driving. (People v.
Dibacco (2004) 117 Cal.App.4th Supp. 1, 4.)
Resisting Arrest with Removal of Firearm (Pen. Code § 148(c))
Resisting arrest (Pen. Code § 148(a)) is a lio of resisting arrest with removal of a firearm. (People v.
Matthews (1999) 70 Cal.App.4th 164, 176.)
Robbery (Pen. Code § 211)
Assault (Pen. Code § 240) is not a lio of robbery under the elements test because robbery can be
committed by force or fear. (People v. O'Malley (2016) 62 Cal.4th 944, 984; People v. Parson
(2008) 44 Cal.4th 332, 349; People v. Wolcott (1983) 34 Cal.3d 92, 100.)
Editor’s note: See also this IPG, question 5-D at pp. 21 [discussing whether force and fear are actually separate
elements]
Assault with a deadly weapon (Pen. Code § 245) is not a lio of robbery, even a robbery with a use clause.
(People v. Wolcott (1983) 34 Cal.3d 92, 102; see also People v. Sheldon (1989) 48 Cal.3d 935,
961-962.)
Carrying a concealed firearm (Pen. Code § 25400(a), formerly § 12025) is not a lio of robbery. (People
v. Coleman (1970) 8 Cal.App.3d 722, 734.)
False imprisonment (Pen. Code § 236) is not a lio of robbery. (People v. Reed (2000) 78 Cal.App.4th
274, 282; People v. Von Villas (1992) 10 Cal.App.4th 201, 255; see also People v. Tufunga (1999)
21 Cal.4th 935, 949 [same conclusion but stated in dicta].)
Theft by larceny (Pen. Code § 487 [grand] or § 484 [petty]) is a lio of robbery. (People v. Whalen
(2013) 56 Cal.4th 1, 69; People v. Castaneda (2011) 51 Cal.4th 1292, 1331; People v. Parson (2008)
44 Cal.4th 332,352; People v. Ortega (1998) 19 Cal.4th 686, 699; People v. Ramkeesoon (1985) 39
111
Cal.3d 346, 351; People v. Church (1897) 116 Cal. 300, 302–304; People v. Jones (1878) 53 Cal. 58,
59.) And attempted theft is a lio of attempted robbery. (People v. Reeves (2001) 91 Cal.App.4th 14,
51-53.)
Editor’s note: Although no currently published case has directly addressed the question, “theft by false
pretenses” cannot be a lio of robbery since the California Supreme Court in People v. Williams (2013) 57
Cal.4th 776 has held that the words “felonious taking” in the definition of robbery definition “were intended to
refer only to theft committed by larceny and not to theft by false pretenses.” (Id. at p. 790.) That was holding of
the court in People v. Powell (2013) 214 Cal.App.4th 106, which was taken up for review pending decision in
Williams but review was dismissed without further publication after Williams issued. (People v. Powell (Cal.
2013) 163 Cal.Rptr.3d 1.)
Editor’s Note: For purposes of deciding whether a theft is a lesser included offense of robbery, it does not make a
difference that the defendant has an “elevating” prior that would make conviction of the theft a felony under Penal
Code section 484/666. The prior conviction is not an element of the offense. Thus, a defendant can be convicted
of theft as a lesser included offense of robbery and still be sentenced for a felony violation of section 484/666.
(See e.g. People v. Robinson (2004) 122 Cal.App.4th 275, 281-282 [noting § 666 establishes neither “a
separate substantive offense of petty theft with a prior conviction” nor an “enhancement” but is simply a
“discretionary sentencing statute” which establishes an alternate and elevated penalty for a petty theft conviction
when a recidivist defendant has served a prior term in a penal institution for a listed offense”]; People v. Tardy
(2003) 112 Cal.App.4th 783, 787, 790 [same].)
Sexual Assault: Aggravated Sexual Assault of a Child Under 14; Battery (Sexual); Lewd
Act on a Child; Oral Copulation; Penetration with a Foreign Object; Rape; Sexual
Intercourse with a Child Under 10; Sodomy; Unlawful Sexual Intercourse
Sexual Battery (See Battery (Sexual))
Sexual Intercourse with a Child Under 10 (Pen. Code § 288.7(a))
Attempted sexual intercourse with a child under 10 is not a lio of sexual intercourse with a child under
10. (People v. Mendoza (2015) 240 Cal.App.4th 72, 83.)
Shooting at an Inhabited Dwelling (Pen. Code § 246)
Grossly negligent discharge of a firearm (Pen. Code § 246.3) is a lio of shooting at an inhabited dwelling.
(People v. Ramirez (2009) 45 Cal.4th 980, 990; accord People v. Overman (2005) 125
Cal.App.4th 1344, 1360.)
Sodomy (Pen. Code § 286(c))
Battery (Pen. Code § 242) is a lio of forcible sodomy. (People v. Hughes (2002) 27 Cal.4th 287, 366.)
Lewd and disorderly conduct (Pen. Code § 647(a)) is not a lio of forcible sodomy. (People v. Madden
(1981) 116 Cal.App.3d 212, 221 [disagreeing with earlier case of People v. Babb (1951) 103 Cal.App.2d
326 because § 647(a) has since been amended and no longer describes the offense discussed in Babb].)
Lewd conduct (Pen. Code § 288(a)) is not a lio of sodomy. (People v. Benavides (2005) 35 Cal.4th
69, 97; People v. Pearson (1986) 42 Cal.3d 351, 355.)
Sodomy with a Child 10 Years or Younger (Pen. Code § 288,7(a)
Attempted sodomy with a child under 10 (Pen. Code § 288.7(a)) is not a lio of sexual intercourse with a
child under 10. (People v. Mendoza (2015) 240 Cal.App.4th 72, 83-84.)
Spousal Abuse (Pen. Code § 273.5)
Assault (Pen. Code § 240) is a lio of spousal abuse. (People v. Gutierrez (1985) 171 Cal.App.3d 944,
952; see also People v. Van Os (1950) 96 Cal.App.2d 204, 206 [finding assault was lio of Pen. Code §
112
273d -the predecessor statute to Pen. Code § 273.5]; People v. Burns (1948) 88 Cal.App.2d 867, 871
[same].)
Assault by means of force likely to produce gbi (Pen. Code § 245(a)(1)) is not a lio of spousal abuse.
(People v. Sloan (2007) 42 Cal.4th 110, 117.)
Battery (Pen. Code § 242) is a lio of spousal abuse. (People v. Abrego (1993) 21 Cal.App.4th 133, 138;
People v. Gutierrez (1985) 171 Cal.App.3d 944, 952.)
Battery on a spouse (Pen. Code § 243) is a lio of spousal abuse. (People v. Hamlin (2009) 170
Cal.App.4th 1412, 1457; People v. Beasley (2003) 105 Cal.App.4th 1078, 1086; People v. Jackson
(2000) 77 Cal.App.4th 574, 575, 580.)
Stalking After Issuance of Restraining Order or Felony Conviction for Certain Offenses
(Pen. Code § 646.9(b)&(c)
Stalking (Pen. Code § 646.9(a)) is a lio of stalking in violation of a restraining order or after having been
convicted of a felony -to the extent subdivision (a) is a distinct offense. (People v. Muhammad
(2007) 157 Cal.App.4th 484, 490, fn. 6 [albeit noting later that subdivisions (b) and (c) are simply
penalty provisions, not separate offenses].)
Statutory Rape (See Unlawful Sexual Intercourse)
Street Terrorism (Pen. Code § 186.22(a) (see also Committing a Felony for the Benefit of
a Street Gang Pen. Code § 186.22(b))
Attempted murder (Pen. Code § 187/664) is not a lio of street terrorism. (People v. Burnell (2005)
132 Cal.App.4th 938, 944.)
Mayhem (Pen. Code § 203) is not a lio of street terrorism. (People v. Burnell (2005) 132 Cal.App.4th
938, 944.)
Receiving stolen property (Pen. Code § 496) is not a lio of street terrorism. (People v. Burnell (2005)
132 Cal.App.4th 938, 944.)
Robbery (Pen. Code § 211) is not a lio of street terrorism. (People v. Burnell (2005) 132 Cal.App.4th
938, 944.)
Vehicle theft (Veh. Code § 10851) is not a lio of street terrorism. (People v. Burnell (2005) 132
Cal.App.4th 938, 944.)
Tampering with Vehicle (Veh. Code § 10802)
Alteration of vehicle identification marks (Veh. Code § 10752) is not a lio of vehicle tampering. (People
v. Joiner (2000) 84 Cal.App.4th 946, 973.)
Theft [Petty and Grand] (Pen. Code §§ 484, 487)
Carjacking (Pen. Code § 215) is not a lio of theft (grand or petty). (People v. Ortega (1998) 19 Cal.4th
686, 693.)
Embezzlement (Pen. Code § 503) is not a lio of theft. (People v. Vidana (2016) 1 Cal.5th 632, 648)
Filing a false financial statement (Pen. Code § 532a(1) is not a lio of grand theft, regardless of whether
the grand theft is based on a theory of theft by larceny or trick. (People v. Whitmer (2014) 230
Cal.App.4th 906, 922.)
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Receiving stolen property (Pen. Code § 496) is not a lio of theft. (In re Christopher S. (1985) 174
Cal.App.3d 620, 623-624; People v. Hall (1985) 168 Cal.App.3d 624, 626.)
Petty theft (Pen. Code § 484), even petty theft with a prior (Pen. Code § 484/666), is a lio of grand theft
(Pen. Code § 487.) (Gomez v. Superior Court (1958) 50 Cal.2d 640, 643–647; People v. Scott
(2013) 221 Cal.App.4th 525, 533; People v. Tabb (2009) 170 Cal.App.4th 1142, 1150.)
Theft [Grand-Auto] (Pen. Code § 487(d))
Tampering with a vehicle (Veh. Code § 10852) is a lio of auto burglary. (People v. Anderson (1975) 15
Cal.3d 806, 811.)
Threats [Criminal] (Pen. Code § 422)
Threatening a public official (Pen. Code § 71) is not a lio of criminal threats. (People v. Chaney
(2005) 131 Cal.App.4th 253, 256.)
Editor’s note: In In re Marcus T. (2001) 89 Cal.App.4th 468, 474-475, the court held that
threatening a public official (Pen. Code § 71) did not appear to be a lio of criminal threats but found it
was under the accusatory pleading test. However, the Chaney court disagreed with the Marcus T.
court to the extent Chaney held that if the pleading described the victim as a public officer, then section
71 would be a lio of section 422. (Chaney at p. 258.)
Threatening Public Official (Pen. Code § 71)
Criminal threats (Pen. Code § 422) is not a lio of threatening a public official. (In re Marcus T.
(2001) 89 Cal.App.4th 468, 472.)
Throwing a Substance Capable of Doing Serious Bodily Harm at a Vehicle (Veh. Code §
23110(b))
Throwing any substance at a vehicle or any occupant on a highway (Veh. Code § 23110(a)) is a lio of
throwing or projecting any substance capable of doing bodily harm in violation of section 2311o(b).
(People v. Mullendore (2014) 230 Cal.App.4th 848, 854.)
Torture (Pen. Code (Pen. Code § 206)
Assault with a deadly weapon (Pen. Code § 245(a)(1)) is not a lio of torture. (People v. Martinez
(2005) 125 Cal.App.4th 1035, 1044.)
Assault with force likely to cause gbi might be a lio of torture. (People v. Hamlin (2009) 170
Cal.App.4th 1412,1456; People v. Martinez (2005) 125 Cal.App.4th 1035, 1042.)
Battery (Pen. Code § 242) is not a lio of torture. (People v. Lewis (2004) 120 Cal.App.4th 882, 888.)
False imprisonment by violence (Pen. Code § 236) is not a lio of torture. (People v. Martinez (2005)
125 Cal.App.4th 1035, 1042.)
Rape (forcible) (Pen. Code § 261(a)(2) is not a lio of torture. (People v. Martinez (2005) 125
Cal.App.4th 1035, 1042.)
Oral copulation (forcible) (Pen. Code § 288a(c)) is not a lio of torture. (People v. Martinez (2005)
125 Cal.App.4th 1035, 1042.)
Preventing or dissuading witness by force or threats (Pen. Code § 136.1(c)(1)) is not a lio of torture.
(People v. Martinez (2005) 125 Cal.App.4th 1035, 1042.)
114
Spousal abuse (Pen. Code § 273.5) is not a lio of torture. (People v. Martinez (2005) 125 Cal.App.4th
1035, 1042.)
Threats (criminal) (Pen. Code § 422) is not a lio of torture. (People v. Martinez (2005) 125
Cal.App.4th 1035, 1042.)
Editor’s note: The rationale for why offenses like battery or assault with force likely to cause great bodily injury
are not lesser included offenses of torture is that while torture requires actual infliction of great bodily injury, it
does not require that the injury be inflicted by any means of touching or force. For example, a caretaker would be
guilty of torturing an immobile person in his care if the caretaker, acting with the intent to cause extreme suffering
for a sadistic purpose, deprived that person of food and water for an extended period of time without ever touching
the person or using force. (See People v. Hamlin (2009) 170 Cal.App.4th 1412,1456; People v. Lewis (2004)
120 Cal.App.4th 882, 888.)
Unlawful Sexual Intercourse (Pen. Code § 261.5)
Contributing to the delinquency of a minor (Pen. Code § 272) is not a lio of unlawful sexual intercourse
(“statutory rape”). (People v. Bobb (1989) 207 Cal.App.3d 88, 96 [disagreeing with older cases
because of subsequent statutory changes]; see also People v. Vincze (1992) 8 Cal.App.4th 1159, 1163.)
Vandalism -Felony (Pen. Code § 594)
Misdemeanor vandalism (Pen. Code § 594(a)) is a lio of felony vandalism (Pen. Code § 594(b));
Sangha v. La Barbera (2006) 146 Cal.App.4th 79, 87, fn. 6.)
Vehicular Manslaughter While Intoxicated (Pen. Code § 191.5(b), formerly § 192(c)(3))
Driving under the influence of alcohol and causing injury (Veh. Code § 23153(a)) is a lio of vehicular
manslaughter while intoxicated. (People v. Binkerd (2007) 155 Cal.App.4th 1143, 1147; see also
People v. Vela (2012) 205 Cal.App.4th 942, 945.)
Editor’s Note: This assumes though that the victim of the injury is the same victim who was killed. If there were
other victims who were injured (i.e., passengers in the defendant’s car) but not killed, then the section 23153 count
would not be a lio of vehicular manslaughter while intoxicated. (See People v. Martinez [unpublished] 2009
WL 416807, *5.)
Vehicular Manslaughter with Gross Negligence (Pen. Code § 192(c)(1)
Vehicular manslaughter with simple negligence (Pen. Code § 192(c)(2) is a lio of vehicular manslaughter
with gross negligence. (People v. Traylor (2009) 46 Cal.4th 1205, 1219.)
Vehicle - Theft or Taking of (Veh. Code § 10851)
Joyriding (Pen. Code § 499b) is not a lio of vehicle theft. (People v. Moon (2005) 37 Cal.4th 1, 26;
People v. Russell (1996) 45 Cal.App.4th 1083, 1088; People v. Green (1995) 34 Cal.App.4th 165,
174-175) However, joyriding can be a lio under the accusatory pleading test where the language of
theft charge accuses defendant of “driving and taking a vehicle without the owner's permission.”
(People v. Moon (2005) 37 Cal.4th 1, 26-27; People v. Delgado (1983) 149 Cal.App.3d 208, 210-212
[same]; see also People v. Barrick (1982) 33 Cal.3d 115, 133; People v. Smith (2013) 57 Cal.4th
232, 242-243.)
Editor’s note: The statutory elements of Penal Code section 499b were changed in 1996 so that it no longer
applies to the taking of motor vehicles (see United States v. Vidal (9th Cir. 2007) 504 F.3d 1072, 1080, fn. 13).
Thus, if the vehicle taken is a motor vehicle, section 499b cannot be a lio of vehicle theft.
115
Voluntary Manslaughter (Pen. Code § 192(a)) (See also Involuntary Manslaughter;
Vehicular Manslaughter)
Assault with a deadly weapon/force likely to cause gbi (Pen. Code § 245) is not a lio of manslaughter or
attempted voluntary manslaughter. (People v. Wilson (1976) 62 Cal.App.3d 370, 373-374.)
Involuntary manslaughter (Pen. Code § 192(b) is not a lio of voluntary manslaughter (albeit both are lio
of murder). (People v. Orr (1994) 22 Cal.App.4th 780, 784.)
Warning: The elements of a statutory offense are subject to
change, as are the code sections which describe the offense.
Where changes to the elements have taken place after the
publication of a decision interpreting what is or is not a
lesser included offense of the statutory offense, the decision
may be rendered obsolete.
Editor’s Note: The CJER Mandatory Criminal Jury Instruction Handbook (2015) published by CEB also
provides a good list of crimes and their lesser included offenses.
NEXT EDITION: IPG KEEPS GETTING SIDETRACKED BUT WE THINK WE WILL
FINALLY GET TO OUR DISCUSSION OF PROPOSITION 64 AND ISSUES ARISING
FROM ITS IMPLEMENTATION.
Suggestions for future topics to be covered by the Inquisitive Prosecutor’s Guide, as well as any other comments or criticisms, should be
directed to Jeff Rubin at (408) 792-1065.
116