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Lesser Included Offenses: How An Experienced Criminal Defense Attorney Could Save you From a Felony Conviction

Most felonies could be charged as lesser offenses. In other words, the lesser offenses are a part of the felony because they include the same elements. Typically, the jury must be instructed on the lesser included offense.

For example, the crime of felony assault includes the lesser offense of simple assault. Simple assault requires that the prosecution prove the following elements:

  • The defendant willfully attempted to inflict injury upon another, or the defendant willfully attempted to threaten to inflict injury upon another; and
  • The defendant had an apparent present ability to carry out such injury or threat; and
  • This injury or threat causes the victim to have a reasonable apprehension of immediate bodily harm.

Felony assault requires that the prosecution prove the elements of simple assault plus the fact that the defendant used a deadly weapon. Thus, all the elements of simple assault are required to prove felony assault. The jury would be given instructions to convict the defendant of either felony or simple assault, rather than only be given instructions to convict the defendant of felony assault.

An instruction on a lesser-included offense is warranted if

  1. “the elements of the lesser offense are a subset of the elements of the charged offense, and
  2. the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit [him/her] of the greater.” Schmuck v. United States, 489 U.S. 705, 716 (1989); Keeble v. United States, 412 U.S. 205, 208 (1973)).

Thus, a district court does not abuse its discretion in refusing to give a lesser-included offense instruction if the jury could not have convicted the defendant of the lesser-included offense without finding the element(s) that would convert the lesser offense to the greater. See United States v. Torres-Flores, 502 F.3d 885, 888 (9th Cir. 2007).

In short, you need the expertise and experience of a well-prepared and well-qualified attorney in order to ensure that the jury gets the right instructions. The Southern California assault defense attorneys at Wallin & Klarich have over 30 years of trial experience and are very familiar with lesser included offenses. In the example above, the addition of the instruction for the lesser included offense of simple assault could mean the difference between spending a small amount of time in county jail or many years in prison for a strikable felony offense. The attorneys at Wallin & Klarich aggressively defend each of our clients to ensure the best defense possible. The defense isn’t over until the jury gets the right instructions. Our attorneys can be reached by phone at 1-888-280-6839 or through our website at www.wklaw.com.

About Wallin & Klarich

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Wallin & Klarich was established in 1981. Over the past 32 years, our law firm has helped tens of thousands of families in their time of legal need. Regardless of whether our clients faced criminal or DUI charges, the loss of their driving privilege, or wanted to clean up their criminal record, we have been there to help them.