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Name: People v. Dyser
Case #: C064558
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 01/13/2012
Summary

Both first degree burglary and assault with intent to commit rape are lesser included offenses of assault with intent to commit rape during the commission of first degree burglary. The statutory elements test is applied to determine if the greater offense includes all of the elements of the lesser offense. In this case, the Attorney General conceded that burglary (Pen. Code, sec. 459-460) is a lesser included offense of assault with intent to commit rape during the commission of first degree burglary (Pen. Code, sec. 220, subd. (b).) The assault with intent to commit rape described in Penal Code section 220, subdivision (a) describes the offense as assault with intent to commit rape, and other listed offenses, “[e]xcept as provided in subdivision (b).” Subdivision (b) describes the same offenses committed while in the commission of a burglary of the first degree. The two lesser offenses were reversed.