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Name: People v. Cook
Case #: C030492
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/22/2001
Subsequent History: Modified on den. of rehrg. 9/20/01; rev. den. 11/28/01

“The trial court may look to the overt acts pleaded in a charge of conspiracy to determine whether the charged offense includes the lesser included offense. Under the accusatory pleading test for determining lesser included offenses, we find that conspiracy to commit assault by means of a firearm is a lesser included offense of conspiracy to commit murder as that offense was pleaded in the accusatory pleading. The overt acts alleged in the information gave notice to defendants of the lesser included offense and the defendants do not claim the facts shown at the preliminary heearing failed to give them notice of the lesser offense or that they were surprised by the evidence presented at trial.” The court rejected the argument the trial court erred in instructing the jury that if they had a reasonable doubt that a defendant was guilty of conspiracy to commit murder, they could convict him on the lesser offense of conspiracy to commit assault with a firearm.