accusatory pleading test in California

2026(People v. Morgan (2026) 19 Cal.5th 12 132, 143[“[R]esistance by force or violence under section 69 does not necessarily include the crime of assault”]; People v. Smith (2013) 57 Cal.4th 232, 241 [“[S]ection 148(a)(1) is not a lesser included offense of section 69 based on the statutory elements of each offense”].) For the sake of judicial efficiency, we will assume, without deciding, that the lesser offenses are included under the accusatory pleading test.

2026(See, e.g., People v. Banks (2014) 59 Cal.4th 1113, 1160 [“When applying the accusatory pleading test, ‘[t]he trial court need only examine the accusatory pleading’ ”], overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3 ; People v. Smith (2013) 57 Cal.4th 232, 244 [application of the accusatory pleading test “does not require or depend on an examination of the evidence adduced at trial”]; People v. Montoya (2004) 33 Cal.4th 1031, 1036 [“Consistent with the primary function of the accusatory pleading test—to determine whether a defendant is entitled to instruction o

2026Under 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 .) Our Supreme Court has repeatedly held that when applying the accusatory pleading test to determine whether one offense is necessarily included in another, courts do not look to evidence beyond the actual pleading and its allegations regarding the purported greater offense.

2025Under 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 .) Appellant was convicted of felony murder, but the information did not charge this specific offense.

2026(See, e.g., People v. Banks (2014) 59 Cal.4th 1113, 1160 [“When applying the accusatory pleading test, ‘[t]he trial court need only examine the accusatory pleading’ ”], overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3 ; People v. Smith (2013) 57 Cal.4th 232, 244 [application of the accusatory pleading test “does not require or depend on an examination of the evidence adduced at trial”]; People v. Montoya (2004) 33 Cal.4th 1031, 1036 [“Consistent with the primary function of the accusatory pleading test—to determine whether a defendant is entitled to instruction o

2025“A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ (People v. Montoya, supra, 33 Cal.4th at p. 1034 .) ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the 10 latter is a lesser included offense within the former.’ (People v. Lopez (1998) 19 Cal.4th 282, 288 .)” (Reed, supra, 38 Cal.4th at p. 1227 .) Reed went on to hold that “the accusatory pleading test does not apply in deciding whether multiple conviction of charged offenses is proper. . . .

2024(People v. 8 Birks (1998) 19 Cal.4th 108, 118 .) However, a defendant is not entitled to instruction on lesser offenses “which are not necessarily included in the charged.” (Id. at p. 119.) “Rather, a jury need only be instructed on offenses that the prosecution actually charged either explicitly or implicitly (because they were necessarily included within explicitly charged offenses).” (People v. Hicks (2017) 4 Cal.5th 203, 211 .) To determine whether one offense is a lesser included offense of another, courts apply either the elements test or the accusatory pleading test.

2024(People v. Jennings (2010) 50 Cal.4th 616, 668 ; People v. Birks (1998) 19 Cal.4th 108 ,136–137.) “A defendant has no right to instructions on lesser related offenses, even if he or she requests the instruction and it would have been supported by substantial evidence, because California law does not permit a court to instruct concerning an uncharged lesser related crime unless agreed to by both parties.” (People v. Jennings, supra, 50 Cal.4th at p. 668 .) “To determine if an offense is lesser and necessarily included in another offense for this purpose, [courts] apply either the elements test

2025Under 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. Shockley (2013) 58 Cal.4th 400, 404 .) C.

2025Under 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. Shockley (2013) 58 Cal.4th 400, 404 .) “On appeal, we independently review whether a trial court erroneously failed to instruct on a lesser included offense.” (People v. Trujeque (2015) 61 Cal.4th 227, 271 .) 29.

2025“A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ (People v. Montoya, supra, 33 Cal.4th at p. 1034 .) ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the 10 latter is a lesser included offense within the former.’ (People v. Lopez (1998) 19 Cal.4th 282, 288 .)” (Reed, supra, 38 Cal.4th at p. 1227 .) Reed went on to hold that “the accusatory pleading test does not apply in deciding whether multiple conviction of charged offenses is proper. . . .

2024The 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.’ ” [Citation.] ‘Under the accusatory pleading test, a lesser offense is included within the greater charged offense “ ‘if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.’ ” ’ ” (People v. Herrera (2006) 136 Cal.App.4th 1191, 1198 (Herrera), quoting People v. Lopez (1998) 19 Cal.4th 282 , 288–289.) Bar

2026(See, e.g., People v. Banks (2014) 59 Cal.4th 1113, 1160 [“When applying the accusatory pleading test, ‘[t]he trial court need only examine the accusatory pleading’ ”], overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3 ; People v. Smith (2013) 57 Cal.4th 232, 244 [application of the accusatory pleading test “does not require or depend on an examination of the evidence adduced at trial”]; People v. Montoya (2004) 33 Cal.4th 1031, 1036 [“Consistent with the primary function of the accusatory pleading test—to determine whether a defendant is entitled to instruction o

2024(See, e.g., People v. Banks (2014) 59 Cal.4th 1113 , 1160 . . . [‘When applying the accusatory pleading test, “[t]he trial court need only examine the accusatory pleading” ’], overruled in part in People v. Scott (2015) 61 Cal.4th 363, 391 ; accord, People v. Smith (2013) 57 Cal.4th 232, 244 ; see also People v. Montoya (2004) 33 Cal.4th 1031 , 1036 . . . [‘Consistent with the primary function of the accusatory pleading test—to determine whether a defendant is entitled to instruction on a lesser uncharged offense—we consider only the pleading for the greater offense’].) ¶ Indeed, in cases such

2023(People v. Wolcott (1983) 34 Cal.3d 92 , 100–102.) Following the Supreme Court’s decision, appellate “courts have concluded that under the accusatory pleading test, gun use and great bodily injury enhancement allegations accompanying an attempted murder charge do not render assault with a deadly weapon a lesser included offense of the charged attempted murder.

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.

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.

2022“An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test).” (People v. Parson (2008) 44 Cal.4th 332, 349 .) Trespass is not a lesser necessarily included offense of burglary under the statutory elements test “because burglary, the entry of specified places with intent to steal or commit a felony (§ 459), can be perpetrated without

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.

2024However, “ ‘[u]nder California law, 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. Breverman (1998) 19 Cal.4th 142, 154, fn. 5 .) Barooshian does not argue that the accusatory pleading test applies in the instant matter.

2025Analysis To determine whether one crime is necessarily included in another, courts “apply either the elements test or the accusatory pleading test.” (People v. Shockley (2013) 58 Cal.4th 400, 404 ; see People v. Robinson (2016) 63 Cal.4th 200, 207 .) “‘Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.’” (Shockley, at p. 404; see also People v. Gonzalez (2018) 5 Cal.5th 186, 197 [“Under the elements test, one offense is another’s ‘lesser included’ counterpart if

2023While the forcible penetration statute encompasses contact by “any foreign object,” the sexual battery statute only encompasses touching by the offender’s body. (§§ 289, subd. (k)(1), 243.4; see also Ortega, supra, 240 Cal.App.4th at p. 967 .) As for the accusatory pleading test, here the pleading tracked the statutory language of section 289, subdivision (a)(1) and alleged that defendant “did unlawfully cause the penetration of the genital opening of [C.], for the purpose of sexual arousal, gratification, and abuse by a foreign object, substance, instrument and device, and by an unknown objec

2025Relevant Legal Principles A defendant “cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act.” (People v. Sanchez (2001) 24 Cal.4th 983, 987 ; People v. Pearson (1986) 42 Cal.3d 351, 355 [“[M]ultiple convictions may not be based on necessarily included offenses”].) “To determine if an offense is lesser and necessarily included in another offense for this purpose, we apply either the elements test or the accusatory pleading test. ‘Under the elements test, if the statutory elements of the greate

2024Under 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, supra, 38 Cal.4th at pp. 1227-1228.) In other words, courts must evaluate whether “ ‘ “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. Sanchez (2001) 24 Cal.4th 983, 988 .) “Courts should c

2007An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.' (People v. Scheidt, supra, at pp. 165-166 [ 282 Cal.Rptr. 228 ].) "The accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime. `As to a lesser included offense, the required notice is given when the specific language of the accusatory pleading adequately warns the defendant that the People will seek to prove the elements of the lesser offense.' (People v. Lohbauer, supra, 29 Cal.3d at pp.

2006(See People v. Scott (2000) 83 Cal.App.4th 784, 796 [ 100 Cal.Rptr.2d 70 ] [“the accusatory pleading test has nothing to do with double jeopardy principles or section 1023”]; People v. Miranda (1994) 21 Cal.App.4th 1464, 1467 [ 26 Cal.Rptr.2d 610 ] [for purpose of deciding the propriety of multiple convictions, necessarily included offenses are determined by the elements test]; People v. Scheidt (1991) 231 Cal.App.3d 162, 165-166 [ 282 Cal.Rptr. 228 ] [“an offense that may be a lesser included offense because of the specific nature of the accusatory pleading” is not subject to the bar against

2025Several appellate courts have rejected Ortega’s reasoning as inconsistent with Montoya, supra, 33 Cal.4th at p. 1036, and many other Supreme Court cases state “that the accusatory pleading test looks solely to the language of the pleading itself.” (People v. Munoz (2019) 31 Cal.App.5th 143, 158 ; accord People v. Alvarez (2019) 32 Cal.App.5th 781, 787 ; People v. Macias (2018) 26 Cal.App.5th 957, 964 .) We agree that we are bound to consider “only the pleading for the greater offense” when applying the accusatory pleading test.

2024(People v. Macias (2018) 26 Cal.App.5th 957, 963 ; People v. Alvarez (2019) 32 Cal.App.5th 781, 789 ; People v. Munoz (2019) 31 Cal.App.5th 143, 156 (Munoz).) “The Supreme Court has indicated repeatedly . . . that when applying the accusatory pleading test to determine whether one offense is necessarily included in another, courts do not look to evidence beyond the actual pleading and its allegations regarding the purported greater offense.

2026(See, e.g., People v. Banks (2014) 59 Cal.4th 1113, 1160 [“When applying the accusatory pleading test, ‘[t]he trial court need only examine the accusatory pleading’ ”], overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3 ; People v. Smith (2013) 57 Cal.4th 232, 244 [application of the accusatory pleading test “does not require or depend on an examination of the evidence adduced at trial”]; People v. Montoya (2004) 33 Cal.4th 1031, 1036 [“Consistent with the primary function of the accusatory pleading test—to determine whether a defendant is entitled to instruction o

2024(See, e.g., People v. Banks (2014) 59 Cal.4th 1113 , 1160 . . . [‘When applying the accusatory pleading test, “[t]he trial court need only examine the accusatory pleading” ’], overruled in part in People v. Scott (2015) 61 Cal.4th 363, 391 ; accord, People v. Smith (2013) 57 Cal.4th 232, 244 ; see also People v. Montoya (2004) 33 Cal.4th 1031 , 1036 . . . [‘Consistent with the primary function of the accusatory pleading test—to determine whether a defendant is entitled to instruction on a lesser uncharged offense—we consider only the pleading for the greater offense’].) ¶ Indeed, in cases such

2025We rejected such a test in Alvarez, concluding the test—articulated in People v. Ortega (2015) 240 Cal.App.4th 956 , 967—conflicts with Supreme Court precedent holding courts may only consider the pleading when applying the accusatory pleading test to determine whether a defendant is entitled to instruction on a lesser uncharged offense.

2025Nonetheless, relying on People v. Ortega (2015) 240 Cal.App.4th 956 (Ortega), defendant argues we should apply an “expanded accusatory pleading test,” and look not only to the pleading document, but also the preliminary hearing transcript to establish for purposes of the accusatory pleading test that defendant is more than 10 years older than Doe.

2025Several appellate courts have rejected Ortega’s reasoning as inconsistent with Montoya, supra, 33 Cal.4th at p. 1036, and many other Supreme Court cases state “that the accusatory pleading test looks solely to the language of the pleading itself.” (People v. Munoz (2019) 31 Cal.App.5th 143, 158 ; accord People v. Alvarez (2019) 32 Cal.App.5th 781, 787 ; People v. Macias (2018) 26 Cal.App.5th 957, 964 .) We agree that we are bound to consider “only the pleading for the greater offense” when applying the accusatory pleading test.

2024(People v. Macias (2018) 26 Cal.App.5th 957, 963 ; People v. Alvarez (2019) 32 Cal.App.5th 781, 789 ; People v. Munoz (2019) 31 Cal.App.5th 143, 156 (Munoz).) “The Supreme Court has indicated repeatedly . . . that when applying the accusatory pleading test to determine whether one offense is necessarily included in another, courts do not look to evidence beyond the actual pleading and its allegations regarding the purported greater offense.

2022Under 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. Sloan (2007) 42 Cal.4th 110, 117 .) Where, as here, the information “merely ‘incorporate[d] the statutory definition of the charged offense without referring to the particular facts’ in detail, we ‘must rely on the statutory elements’ alone.” (People v. Fontenot (2019) 8 Cal.5th 57, 65 .) Defendant’s convictions on counts 1 through 15 for aggravated sexual assault of a minor under the age o

2020(See, e.g., People v. Alvarez (2019) 32 Cal.App.5th 781 , 787–790 (Alvarez); People v. Munoz (2019) 31 Cal.App.5th 143 , 156–158 (Munoz); People v. Macias (2018) 26 Cal.App.5th 957 , 963–965.) As the court in Munoz explained: “The Supreme Court has indicated repeatedly . . . that when applying the accusatory pleading test to determine whether one offense is necessarily included in another, courts do not look to evidence beyond the actual pleading and its allegations regarding the purported greater offense.” (Munoz, at p. 156; see also People v. Smith (2013) 57 Cal.4th 232, 244 [“[t]he trial co

2022Under 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 ; People v. Ramirez (2009) 45 Cal.4th 980, 984-985 [“if a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense”].) However, “the accusatory pleading test does not apply in deciding whether multiple conviction of charged offenses is proper.” (People v. Reed, supra, 38 Cal.4th at p. 1229 [“The ac

2016(People v. Shockley (2013) 58 Cal.4th 400, 404 [ 165 Cal.Rptr.3d 497 , 314 P.3d 798 ] (Shockley); People v. Ramirez (2009) 45 Cal.4th 980, 984-985 [ 89 Cal.Rptr.3d 586 , 201 P.3d 466 ]; People v. Birks (1998) 19 Cal.4th 108, 117 [ 77 Cal.Rptr.2d 848 , 960 P.2d 1073 ].) “ ‘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.’ [Citation.]” (Shockley, at p. 404.) However, this test does not apply where the accusatory pleading does not allege facts specific t

2025Several appellate courts have rejected Ortega’s reasoning as inconsistent with Montoya, supra, 33 Cal.4th at p. 1036, and many other Supreme Court cases state “that the accusatory pleading test looks solely to the language of the pleading itself.” (People v. Munoz (2019) 31 Cal.App.5th 143, 158 ; accord People v. Alvarez (2019) 32 Cal.App.5th 781, 787 ; People v. Macias (2018) 26 Cal.App.5th 957, 964 .) We agree that we are bound to consider “only the pleading for the greater offense” when applying the accusatory pleading test.

2024(People v. Macias (2018) 26 Cal.App.5th 957, 963 ; People v. Alvarez (2019) 32 Cal.App.5th 781, 789 ; People v. Munoz (2019) 31 Cal.App.5th 143, 156 (Munoz).) “The Supreme Court has indicated repeatedly . . . that when applying the accusatory pleading test to determine whether one offense is necessarily included in another, courts do not look to evidence beyond the actual pleading and its allegations regarding the purported greater offense.

2024(People v. Smith (2013) 57 Cal.4th 232, 240 .) “The elements test is satisfied if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, such that all legal elements of the lesser offense are also elements of the greater.” (People v. Bailey (2012) 54 Cal.4th 740, 748 (Bailey).) The accusatory pleading test inquires whether the “ ‘facts actually alleged in the accusatory pleading[] include all the elements of the lesser offense, such 1 Undesignated statutory references are to the Penal Code. 3 that the greater cannot be committed without also

2023(See People v. Bailey (2012) 54 Cal.4th 740, 751-752 [“the accusatory pleading test only applies in determining whether a defendant received notice of the charges against him in order to have a reasonable opportunity to prepare and present his defense” and “is not applicable” where “concerns about notice are not at issue”]; Huynh, supra, 212 Cal.App.4th at pp. 312-313 [“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 defendant “knew from the get-go that his case was being prosecuted only

2025Relevant Legal Principles A defendant “cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act.” (People v. Sanchez (2001) 24 Cal.4th 983, 987 ; People v. Pearson (1986) 42 Cal.3d 351, 355 [“[M]ultiple convictions may not be based on necessarily included offenses”].) “To determine if an offense is lesser and necessarily included in another offense for this purpose, we apply either the elements test or the accusatory pleading test. ‘Under the elements test, if the statutory elements of the greate

2023Relevant Legal Principles A defendant “cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act.” (People v. Sanchez (2001) 24 Cal.4th 983, 987 ; People v. Pearson (1986) 42 Cal.3d 351, 355 [“[M]ultiple convictions may not be based on necessarily included offenses”].) “To determine if an offense is lesser and necessarily included in another offense for this purpose, we apply either the elements test or the accusatory pleading test. ‘Under the elements test, if the statutory elements of the greate

2026In Woods, the appellate court rejected an argument similar to the one Freeman raises, ruling unlawful sexual intercourse with a minor was not a lesser included offense of forcible rape under the accusatory pleading test. ( Woods, supra, 241 Cal.App.4th at pp. 477–482.) In Woods, the information alleged, inter alia, numerous counts of “forcible rape” and numerous counts of “forcible oral copulation of a minor aged 14 or older.” (Id. at p. 469.) It further alleged the defendant was subject to the One Strike law “in that he committed multiple offenses on separate occasions against the same victim

2026In Woods, the appellate court rejected an argument similar to the one Freeman raises, ruling unlawful sexual intercourse with a minor was not a lesser included offense of forcible rape under the accusatory pleading test. ( Woods, supra, 241 Cal.App.4th at pp. 477–482.) In Woods, the information alleged, inter alia, numerous counts of “forcible rape” and numerous counts of “forcible oral copulation of a minor aged 14 or older.” (Id. at p. 469.) It further alleged the defendant was subject to the One Strike law “in that he committed multiple offenses on separate occasions against the same victim

2021In that case, we noted that “many Supreme Court cases . . . stat[e] that the accusatory pleading test looks solely to the language of the pleading itself.” (Munoz, supra, 31 Cal.App.5th at p. 158 .) In particular, two Supreme Court cases, People v. Montoya (2004) 33 Cal.4th 1031 , 1036 and People v. Ortega (1998) 19 Cal.4th 686, 698 , disapproved a Court of Appeal case3 for looking beyond the accusatory pleading itself to the preliminary hearing evidence to determine whether an offense was a lesser included offense.

2019(See, e.g., People v. Banks (2014) 59 Cal.4th 1113 , 1160, 176 Cal.Rptr.3d 185 , 331 P.3d 1206 ( Banks ) ["When applying the accusatory pleading test, '[t]he trial court need only examine the accusatory pleading' "], overruled in part by People v. Scott (2015) 61 Cal.4th 363 , 391, 188 Cal.Rptr.3d 328 , 349 P.3d 1028 ; accord, People v. Smith (2013) 57 Cal.4th 232 , 244, 159 Cal.Rptr.3d 57 , 303 P.3d 368 ; see also People v. Montoya (2004) 33 Cal.4th 1031 , 1036, 16 Cal.Rptr.3d 902 , 94 P.3d 1098 ( Montoya ) ["Consistent with the primary function of the accusatory pleading test-to determine wh

2025(People v. Licas (2007) 41 Cal.4th 362, 366 .) To do so, “we apply either the elements test or the accusatory pleading test.

2024(People v. Licas (2007) 41 Cal.4th 362, 366 .) To determine whether one offense is a lesser included offense of another, courts apply either the elements test or the accusatory pleading test.

2023(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 .) “A trial court has a sua sponte duty to instruct the jury on any uncharged lesser offense that is necessarily included in a charged offense if 7 there is substantial evidence from which the jury could reasonably conclude that the defendant committed the lesser included offense but not the charged offense.” (People v. Lopez (2020) 9 Cal.5th 254, 269 ; People v. Duff (2014) 58 Cal.4th 527, 561 .) “To determine if an offense is lesser and necessarily included in another offense . . . , we apply either the elements test or the

2023“Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily 31 included in the former.”’” (People v. Lopez (2020) 9 Cal.5th 254, 269-270 .) “What that test requires is determining whether a given crime’s elements together constitute a mere subset of another crime’s elements. [Citation.] If the answer is yes, the greater offense ‘“‘“cannot be committed without also necessarily committing [the] lesser offense.”’”’ [Citation.] Which means that, so long as some additional evidence is required to s

2022People v. Cook (2001) 91 Cal.App.4th 910, 918 (Cook) reached the opposite conclusion, holding that the pleading of overt acts puts a defendant on notice of the facts alleged and may be considered in determining whether conspiracy to commit lesser crimes were committed under the accusatory pleading test.

2021(People v. Cook (2001) 91 Cal.App.4th 910, 918-919 (Cook).) There is, however, a split of authority on the application of the accusatory pleading test in conspiracy cases.