A lesser included offense is a crime which is proved by the same facts as a more serious crime. For example, a prosecutor may charge a person with armed robbery and if he fails to prove all the elements needed to convict the criminal on the armed robbery charge, the criminal may still be convicted on a lesser included offense of larceny, a less serious theft offense. A plea bargain will often give the accused the option of pleading guilty or no contest to a lesser included offense rather than face trial and possibly be convicted on a greater offense.
The following is an example of a state statute governing lesser included offense:
"An offense is an included one if:
- It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
- It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
- It is specifically designated by statute as a lesser degree of the offense charged; or
- It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.
(b) The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense."
“A lesser included offense is defined as one that is "necessarily included" within the statutory elements of another offense.” James v. Adams, 2009 U.S. Dist. LEXIS 86128 (E.D. Cal. Sept. 4, 2009)