statutory elements test in California

2021(People v. Reed (2006) 38 Cal.4th 1224 , 1228–1229.) Appellant concedes battery with serious bodily injury is not a lesser included offense of mayhem under the statutory elements test because serious bodily injury is not an element of mayhem.

2021The statutory elements test requires that “the statutory elements of the greater offense include all of the statutory elements of the lesser offense” (People v. Reed, supra, 38 Cal.4th at p. 1228 .) “ ‘[O]nly a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding.

2025(People v. Ramirez (2009) 45 Cal.4th 980 , 984–985; People v. Licas (2007) 41 Cal.4th 362, 366 ; People v. Lopez (1998) 19 Cal.4th 282, 288 (Lopez).) The statutory 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.’ ” (Lopez, at p. 288.) Thus, “if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” (Ibid.; see People v. Birks (1998) 19 Cal.4th 108, 117 .) Under the statutory elements test, the char

2022(People v. Foster (2010) 50 Cal.4th 1301, 1344 ; Taylor, supra, 48 Cal.4th at p. 622 ; Birks, supra, 19 Cal.4th at p. 118, fn. 8 .) Hill argues, however, that these cases at most establish trespass is not a lesser included offense of burglary under one of the two tests for determining whether an offense is a lesser included offense, the statutory elements test.

2023In other words, force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave a mark.’ ” (Shockley, supra, 58 Cal.4th at p. 404 .) As did the defendant in Shockley, defendant questions whether a defendant can ever “engage in lewd conduct with a child younger than 14 years without also perpetrating the lesser offense of battery.” (Shockley, supra, 58 Cal.4th at p. 405 .) However, the high court declined to resolve that question, and instead, applying the statutory elements test, held battery is not a lesser included offen

2023In other words, force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave a mark.’ ” (Shockley, supra, 58 Cal.4th at p. 404 .) As did the defendant in Shockley, defendant questions whether a defendant can ever “engage in lewd conduct with a child younger than 14 years without also perpetrating the lesser offense of battery.” (Shockley, supra, 58 Cal.4th at p. 405 .) However, the high court declined to resolve that question, and instead, applying the statutory elements test, held battery is not a lesser included offen

2021On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.’ [Citation.]” ( Smith, supra, 57 Cal.4th at pp. 239-240.) “For purposes of determining a trial court’s instructional duties, . . . ‘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.’” (Smith, supra, 57 Cal.4th at p. 240 .) We rely on the st

2021On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.’ [Citation.]” ( Smith, supra, 57 Cal.4th at pp. 239-240.) “For purposes of determining a trial court’s instructional duties, . . . ‘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.’” (Smith, supra, 57 Cal.4th at p. 240 .) We rely on the st

2022(See People v. O’Malley (2016) 62 Cal.4th 944, 984 [“assault is not a lesser included offense of robbery under the statutory elements test, because 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”]; People v. Wolcott (1983) 34 Cal.3d 92, 99 [assault is not a lesser included offense of 113 robbery because “[n]either an attempt to inflict violent injury, nor the present ability to do so, is required for the crime of robbery”].) Instead, Molina relies on Cook and the

2022(People v. Tufunga (1999) 21 Cal.4th 935, 949 ; see People v. Parson (2008) 44 Cal.4th 332, 349 [assault is not a lesser included offense of robbery under the statutory elements test because robbery can be committed strictly by means of fear]; People v. Wolcott (1983) 34 Cal.3d 92, 100 [same].) As for the accusatory pleading test, Wright, supra, 52 Cal.App.4th 203 is instructive here.

2014(See People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417 [ 125 Cal.Rptr.3d 903 ]; People v. Mejia (1999) 72 Cal.App.4th 1269, 1272 [ 85 Cal.Rptr.2d 690 ] [defendant need not physically have the weapon on his person; constmctive possession of a firearm “is established by showing a knowing exercise of dominion and control” over it].) “To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person.” (People v. Sifuentes, supra, 195 Cal.App.4th at p. 1417 .) Thus, while the act of

2014(See People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417 [ 125 Cal.Rptr.3d 903 ]; People v. Mejia (1999) 72 Cal.App.4th 1269, 1272 [ 85 Cal.Rptr.2d 690 ] [defendant need not physically have the weapon on his person; constmctive possession of a firearm “is established by showing a knowing exercise of dominion and control” over it].) “To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person.” (People v. Sifuentes, supra, 195 Cal.App.4th at p. 1417 .) Thus, while the act of

2014(See People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417 [ 125 Cal.Rptr.3d 903 ]; People v. Mejia (1999) 72 Cal.App.4th 1269, 1272 [ 85 Cal.Rptr.2d 690 ] [defendant need not physically have the weapon on his person; constmctive possession of a firearm “is established by showing a knowing exercise of dominion and control” over it].) “To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person.” (People v. Sifuentes, supra, 195 Cal.App.4th at p. 1417 .) Thus, while the act of

2014(See People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417 [ 125 Cal.Rptr.3d 903 ]; People v. Mejia (1999) 72 Cal.App.4th 1269, 1272 [ 85 Cal.Rptr.2d 690 ] [defendant need not physically have the weapon on his person; constmctive possession of a firearm “is established by showing a knowing exercise of dominion and control” over it].) “To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person.” (People v. Sifuentes, supra, 195 Cal.App.4th at p. 1417 .) Thus, while the act of

2021In general, “a defendant who commits a single act or course of conduct may be convicted ‘of any number of the offenses charged.’” (People v. Williams (2009) 170 Cal.App.4th 587, 643 (Williams), quoting § 954.) “But a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses.” (People v. Montoya (2004) 33 Cal.4th 1031, 1034 (Montoya).) In deciding whether an offense is necessarily included in another when multiple offenses arise out of a single course of conduct, we apply the statutory elements test.

2015(People v. Reed, supra, 38 Cal.4th at p. 1227 ; People v. Montoya (2004) 33 Cal.4th 1031, 1034 .) The statutory elements test is applied to determine whether one charged offense is necessarily included in another charged offense.

2014The California Supreme Court has explained that “ ‘[i]t is the availability—the ready access—of the weapon that constitutes arming.’ ” (People v. Bland (1995) 10 Cal.4th 991, 997 [ 43 Cal.Rptr.2d 77 , 898 P.2d 391 ] (Bland), quoting People v. Mendival (1992) 2 Cal.App.4th 562, 574 [ 3 Cal.Rptr.2d 566 ].) “The statutory elements of a violation of section 12021 [(a)(1)] ... are that a person, who has previously been convicted of a felony, had in his or her possession or under his or her custody or control any firearm.” (People v. Padilla (2002) 98 Cal.App.4th 127, 138 [ 119 Cal.Rptr.2d 457 ], it

2014The California Supreme Court has explained that “ ‘[i]t is the availability—the ready access—of the weapon that constitutes arming.’ ” (People v. Bland (1995) 10 Cal.4th 991, 997 [ 43 Cal.Rptr.2d 77 , 898 P.2d 391 ] (Bland), quoting People v. Mendival (1992) 2 Cal.App.4th 562, 574 [ 3 Cal.Rptr.2d 566 ].) “The statutory elements of a violation of section 12021 [(a)(1)] ... are that a person, who has previously been convicted of a felony, had in his or her possession or under his or her custody or control any firearm.” (People v. Padilla (2002) 98 Cal.App.4th 127, 138 [ 119 Cal.Rptr.2d 457 ], it

2025ANALYSIS “ ‘ “[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. Braslaw (2015) 233 Cal.App.4th 1239, 1247 .) “Where the accusatory pleading, as in this case [AOB 90], tracks the statutory language rather than reciting factual details of the offense, ‘only the statutory elements test is relevant in determining if an uncharged cr

2025(People v. Braslaw (2015) 233 Cal.App.4th 1239, 1247 (Braslaw).) “ ‘[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 10 of the lesser offense, such that the greater cannot be committed without also committing the lesser.’ ” (People v. Licas (2007) 41 Cal.4th 362, 366 ; see People v. Bailey (2012) 54 Cal.4th 740, 748 [describing elements test and accusatory pleading test].) “Where the accusatory pleading, as in this case, tracks the statutory

2024Specifically, 8 section 191.5 requires proof that the homicide was committed ‘in the driving of a vehicle’ and that the driving was in violation of specified Vehicle Code provisions prohibiting driving while intoxicated.” (Sanchez, supra, 24 Cal.4th at p. 989 .) Gross vehicular manslaughter is not a lesser included offense under the statutory elements test because “Although as a factual matter, a murder may be carried out by means of a vehicle and by an intoxicated driver, in the abstract it obviously is possible to commit a murder without committing gross vehicular manslaughter while intoxica

2024Specifically, section 191.5 requires proof that the homicide was committed ‘in the driving of a vehicle’ and that the driving was in violation of specified Vehicle Code provisions prohibiting driving while intoxicated.” (Sanchez, supra, 24 Cal.4th at p. 989 .) Gross vehicular manslaughter is not a lesser included offense under the statutory elements test because “[a]lthough as a factual matter, a murder may be carried out by means of a vehicle and by an intoxicated driver, in the abstract it obviously is possible to commit a murder without committing gross vehicular manslaughter while intoxica

2025(People v. Braslaw (2015) 233 Cal.App.4th 1239, 1247 (Braslaw).) “ ‘[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 10 of the lesser offense, such that the greater cannot be committed without also committing the lesser.’ ” (People v. Licas (2007) 41 Cal.4th 362, 366 ; see People v. Bailey (2012) 54 Cal.4th 740, 748 [describing elements test and accusatory pleading test].) “Where the accusatory pleading, as in this case, tracks the statutory

2025(People v. Ramirez (2009) 45 Cal.4th 980 , 984–985; People v. Licas (2007) 41 Cal.4th 362, 366 ; People v. Lopez (1998) 19 Cal.4th 282, 288 (Lopez).) The statutory 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.’ ” (Lopez, at p. 288.) Thus, “if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” (Ibid.; see People v. Birks (1998) 19 Cal.4th 108, 117 .) Under the statutory elements test, the char

2025(People v. Ramirez (2009) 45 Cal.4th 980 , 984–985; People v. Licas (2007) 41 Cal.4th 362, 366 ; People v. Lopez (1998) 19 Cal.4th 282, 288 (Lopez).) The statutory 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.’ ” (Lopez, at p. 288.) Thus, “if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” (Ibid.; see People v. Birks (1998) 19 Cal.4th 108, 117 .) Under the statutory elements test, the char

2016When, as here, the accusatory pleading incorporates the statutory *1262 definition of the charged offense without referring to the particular facts, a reviewing court must rely on the statutory elements to determine if there is a lesser included offense.” (People v. Robinson (2016) 63 Cal.4th 200, 207 [ 202 Cal.Rptr.3d 485 , 370 P.3d 1043 ] (Robinson); see Shockley, supra, 58 Cal.4th at p. 404 .) Using the statutory elements test, in Shockley, supra, 58 Cal.4th 400 , our Supreme Court analyzed whether simple battery is a necessarily included lesser offense of lewd conduct with a child (§ 288,

2025(Breverman, supra, 19 Cal.4th at p. 162 .) That is, the “trial court need not . . . instruct on lesser included offenses when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime.” (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5 .) 12 B.

2013Under the statutory elements test, simple possession of a controlled substance is not a lesser included offense of sale because "[a] conviction for selling controlled substances does not require proof of possession at all, much less possession of a usable quantity." (People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 ; People v. Murphy (2007) 154 Cal.App.4th 979, 983 .) We need not address whether simple possession is a lesser included offense of sale under the accusatory pleading test because resolution of that issue is unnecessary to our disposition of this appeal. 6 committed witho

2023(Gray v. Dignity Health (2021) 70 Cal.App.5th 225 , 237, fn. 11.) This is true when a claim is based on unlawful conduct, because without supporting 7 facts demonstrating the illegality of the business practice, “an allegation that it is in violation of a specific statute is purely conclusionary and insufficient to withstand demurrer.” (People v. McKale (1979) 25 Cal.3d 626, 635 ; see Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619 [“A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutor

2022(Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1253 .) A UCL plaintiff “must state with reasonable particularity the facts supporting the statutory elements of the violation. [Citations.]” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619 (Khoury); see also Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845 , 857.) b.

2025(People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) Two tests are used to determine whether an offense is a lesser included offense: the statutory elements test or the accusatory pleading test.

2015Subdivision (b) of section 192 defines the offense of involuntary manslaughter and further provides that “[t]his subdivision shall not apply to acts committed in the driving of a vehicle.” Subdivision (c) of section 192 defines the offense of vehicular manslaughter under three separate subdivisions, each of which requires the element of “driving a vehicle” as part of the offense. “[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 162 .) Case law sets

2014The California Supreme Court has explained that “ ‘[i]t is the availability—the ready access—of the weapon that constitutes arming.’ ” (People v. Bland (1995) 10 Cal.4th 991, 997 [ 43 Cal.Rptr.2d 77 , 898 P.2d 391 ] (Bland), quoting People v. Mendival (1992) 2 Cal.App.4th 562, 574 [ 3 Cal.Rptr.2d 566 ].) “The statutory elements of a violation of section 12021 [(a)(1)] ... are that a person, who has previously been convicted of a felony, had in his or her possession or under his or her custody or control any firearm.” (People v. Padilla (2002) 98 Cal.App.4th 127, 138 [ 119 Cal.Rptr.2d 457 ], it

2014The California Supreme Court has explained that “ ‘[i]t is the availability—the ready access—of the weapon that constitutes arming.’ ” (People v. Bland (1995) 10 Cal.4th 991, 997 [ 43 Cal.Rptr.2d 77 , 898 P.2d 391 ] (Bland), quoting People v. Mendival (1992) 2 Cal.App.4th 562, 574 [ 3 Cal.Rptr.2d 566 ].) “The statutory elements of a violation of section 12021 [(a)(1)] ... are that a person, who has previously been convicted of a felony, had in his or her possession or under his or her custody or control any firearm.” (People v. Padilla (2002) 98 Cal.App.4th 127, 138 [ 119 Cal.Rptr.2d 457 ], it

2015(Id. at p. 753 [no duty to instruct on attempted escape because it had more specific intent requirement than crime of escape].) “ ‘[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. Licas (2007) 41 Cal.4th 362, 366 [ 60 Cal.Rptr.3d 31 , 159 P.3d 507 ] (Licas).) Where the accusatory pleading, as in this case, tracks the statutory l

2015(Id. at p. 753 [no duty to instruct on attempted escape because it had more specific intent requirement than crime of escape].) “ ‘[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. Licas (2007) 41 Cal.4th 362, 366 [ 60 Cal.Rptr.3d 31 , 159 P.3d 507 ] (Licas).) Where the accusatory pleading, as in this case, tracks the statutory l

2014Thus, to the extent this portion of Wilson is premised on reasoning adopted in Geiger, such reasoning no longer remains good law in the wake of Birks. 15 deadly weapon.15 We decline to conclude that the Wilson court sub silentio abrogated the "at least four published appellate court decisions decided [before Wilson] that [concluded] brandishing a firearm was not a lesser included offense to assault with a deadly weapon (firearm)." ( Steele, supra, 83 Cal.App.4th at pp. 214-215.)16 Further, we conclude that because "an assault with a firearm may be committed without the defendant brandishing su

2014Thus, to the extent this portion of Wilson is premised on reasoning adopted in Geiger, such reasoning no longer remains good law in the wake of Birks. 15 deadly weapon.15 We decline to conclude that the Wilson court sub silentio abrogated the "at least four published appellate court decisions decided [before Wilson] that [concluded] brandishing a firearm was not a lesser included offense to assault with a deadly weapon (firearm)." ( Steele, supra, 83 Cal.App.4th at pp. 214-215.)16 Further, we conclude that because "an assault with a firearm may be committed without the defendant brandishing su

2025(People v. Ramirez (2009) 45 Cal.4th 980 , 984–985; People v. Licas (2007) 41 Cal.4th 362, 366 ; People v. Lopez (1998) 19 Cal.4th 282, 288 (Lopez).) The statutory 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.’ ” (Lopez, at p. 288.) Thus, “if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” (Ibid.; see People v. Birks (1998) 19 Cal.4th 108, 117 .) Under the statutory elements test, the char

2022(People v. Ramirez (2009) 45 Cal.4th 980, 984 .) Courts use the statutory elements test in determining whether an offense necessarily includes a lesser 7 offense.

2023(See People v. Wilcox (1986) 177 Cal.App.3d 715, 717 .) The statutory elements of misdemeanor sexual battery are (1) touching an intimate part of another person, (2) against the will of the other person, (3) for the purpose of sexual arouse, gratification, or abuse. (§ 243.4, subd. (a).) Touching means “physical contact with the skin of another person,” either directly or through the person’s clothing. (§ 243.4, subd. (f).) Intimate part means the sexual organ, anus, groin, buttocks, or breasts. (§ 243.4, subd. (g)(1).) In People v. Ortega (2015) 240 Cal.App.4th 956 , the court held sexual bat

2023(See People v. Ortega, supra, 240 Cal.App.4th at p. 968 .) Here, however, the accusatory pleading merely tracks the language of the statute and alleges defendant “did willfully and unlawfully cause the penetration, however slight, of the genital opening of the victim, to wit, R.B., when the act of penetration was accomplished against the victim’s will by means of force, violence, duress, menace and fear of immediate and unlawful bodily injury to the victim.” “Where the accusatory pleading, as in this case, tracks the statutory language rather than reciting factual details of the offense, ‘only

2016Nonetheless, even if we reach the issue, we apply the statutory elements test (People v. Sloan (2007) 42 Cal.4th 110, 118 (Sloan)) to determine whether an appellant has suffered impermissible multiple convictions; the accusatory pleading test does not apply because notice is irrelevant to this determination.

2015Moreover, we note that claims are not subject to forfeiture when they are based on section 654, which governs “the closely related question of when a defendant may receive multiple sentences based upon a single act or course of conduct.” (People v. Ortega (1998) 19 Cal.4th 686, 692 , italics omitted; People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3 ; People v. Mustafaa 17 (1994) 22 Cal.App.4th 1305, 1312, fn. 2 .) We therefore consider the merits of Scott’s claim.27 In other contexts, two tests have developed for determining whether an uncharged offense is a lesser included offense of another:

2025(People v. Sanders (2012) 55 Cal.4th 731, 736 .) Under the statutory elements test, first degree burglary is a lesser included offense of assault with intent to commit rape during the commission of first degree burglary.

2013Although the statutory elements test for lesser included offenses does not look to “the underlying facts of the case or the language of the accusatory pleading” (People v. Sanders, supra, 55 Cal.4th at p. 739 ) in deciding whether a theft is necessarily included in a robbery, it is necessary to determine whether the crimes were part of a single incident, or were separate crimes.

2013(People v. Belmares (2003) 106 Cal.App.4th 19, 24 [ 130 Cal.Rptr.2d 400 ] [“By the statutory elements test, . . . resisting is not a lesser included offense of deterring since one can deter an officer’s duty in the future (§ 69) without resisting the officer’s discharge or attempted discharge of a duty at that time (§ 148, subd. (a)(1)).”]; People v. Lopez (2005) 129 Cal.App.4th 1508, 1532 [ 29 Cal.Rptr.3d 586 ] [“section 148 is not a lesser included offense of section 69, because section 69 can involve a present attempt to deter an officer’s future duty”].) We disapprove People v. Lacefield,

2013(People v. Belmares (2003) 106 Cal.App.4th 19, 24 [ 130 Cal.Rptr.2d 400 ] [“By the statutory elements test, . . . resisting is not a lesser included offense of deterring since one can deter an officer’s duty in the future (§ 69) without resisting the officer’s discharge or attempted discharge of a duty at that time (§ 148, subd. (a)(1)).”]; People v. Lopez (2005) 129 Cal.App.4th 1508, 1532 [ 29 Cal.Rptr.3d 586 ] [“section 148 is not a lesser included offense of section 69, because section 69 can involve a present attempt to deter an officer’s future duty”].) We disapprove People v. Lacefield,

2025ANALYSIS “ ‘ “[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. Braslaw (2015) 233 Cal.App.4th 1239, 1247 .) “Where the accusatory pleading, as in this case [AOB 90], tracks the statutory language rather than reciting factual details of the offense, ‘only the statutory elements test is relevant in determining if an uncharged cr

2025(People v. Braslaw (2015) 233 Cal.App.4th 1239, 1247 (Braslaw).) “ ‘[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 10 of the lesser offense, such that the greater cannot be committed without also committing the lesser.’ ” (People v. Licas (2007) 41 Cal.4th 362, 366 ; see People v. Bailey (2012) 54 Cal.4th 740, 748 [describing elements test and accusatory pleading test].) “Where the accusatory pleading, as in this case, tracks the statutory

2024Specifically, 8 section 191.5 requires proof that the homicide was committed ‘in the driving of a vehicle’ and that the driving was in violation of specified Vehicle Code provisions prohibiting driving while intoxicated.” (Sanchez, supra, 24 Cal.4th at p. 989 .) Gross vehicular manslaughter is not a lesser included offense under the statutory elements test because “Although as a factual matter, a murder may be carried out by means of a vehicle and by an intoxicated driver, in the abstract it obviously is possible to commit a murder without committing gross vehicular manslaughter while intoxica

2024Specifically, section 191.5 requires proof that the homicide was committed ‘in the driving of a vehicle’ and that the driving was in violation of specified Vehicle Code provisions prohibiting driving while intoxicated.” (Sanchez, supra, 24 Cal.4th at p. 989 .) Gross vehicular manslaughter is not a lesser included offense under the statutory elements test because “[a]lthough as a factual matter, a murder may be carried out by means of a vehicle and by an intoxicated driver, in the abstract it obviously is possible to commit a murder without committing gross vehicular manslaughter while intoxica