When one hears the legal term “lesser included offense,” it means that the crime at hand is part of a greater crime. Simply put, one can’t commit the greater criminal offense without committing the lesser criminal offense and this is known as the “lesser included offense.”
A “lesser included offense” (or “necessarily included offense”) is a criminal law term for a crime that’s contained within a greater crime—you can’t commit the greater offense without committing the lesser.
Defining a Lesser Included Offense
A “lesser included offense” can be proven, typically, by the exact facts that can prove the more serious crime. A prosecuting attorney in California could charge an individual with armed robbery, for example. However, if that prosecutor is unable to prove the elements needed for an armed robbery conviction, the defendant could still be convicted of the “lesser included offense.” In this case, the defendant may be charged with larceny, as it is a “lesser included offense” to armed robbery. In the State of California, it is not uncommon for a prosecutor and criminal defense attorney to agree on a plea bargain. A plea bargain specifically gives a defendant the opportunity to plead “guilty” or “no contest” to a “lesser included offense.” This allows the accused offender to avoid a trial and a conviction to the greater offense.
When it is a Lesser Included Offense?
In the State of California, a criminal offense is a “lesser included offense” if:
- It is established by the elements of the same or with less than all the elements needed to establish the offense charged; or
- It consists of an attempt to commit the offense charged or to commit a “lesser included offense;” or
- It is specifically defined by statute as a lesser degree of the offense charged; or
- It varies from the offense charged only in that a less serious injury or risk of injury to the same person, property or public interest resulted.
The Tests for a Lesser Included Offense?
It is common for courts to rely on the “elements test” when determining “lesser included offenses.” According to the “elements test” used, a serious crime consists of all the elements of a “lesser included crime,” as well as one additional element. To better understand this concept, consider the following example. Often, the charge of drug possession is known as a “lesser included offense” of the charge of drug possession with the intent to distribute (sell). The elements of drug possession are the physical possession of drugs; possessing a usable amount of a controlled substance (drug); and the defendant knew he or she was in possession of the substance. These elements are the same as the charge of drug possession with the intent to distribute (sell), with the added element that the defendant did indeed plan to sell the drug.
The existence of “lesser included offenses” can be of benefit to defendants. The issue of “lesser included offenses” in California can be complicated, however. It is beneficial for an accused offender in California to seek explanation and advice concerning “lesser included offenses” from a knowledgeable criminal defense attorney.