P.

Defendant Dewone T. Smith was charged with resisting an executive officer in the performance of his duties under Penal Code section 69 (hereafter section 69) and convicted by a jury. During the trial, the superior court denied defendant’s request to instruct the jury that it could instead convict him of the lesser offense of resisting a public officer under Penal Code section 148, subdivision (a)(1) (hereafter section 148(a)(1)), a crime that defendant contends is necessarily included within section 69. We hold that section 148(a)(1) was á necessarily included lesser offense of section 69 as alleged in the amended information. But because the record does not reveal substantial evidence that defendant violated section 148(a)(1) without also violating section 69, the trial court was not required to instruct on section 148(a)(1). Accordingly, we affirm defendant’s conviction.

I.

On the morning of April 21, 2008, Los Angeles Deputy Sheriff Deloy Baker was working as a prowl deputy in Module 1700 of the Men’s Central Jail. Deputy Baker explained: “A prowl deputy just walks the tiers, ensures everyone’s safety, that everyone is alive, and also provide[s] security when need…

I concur in the majority's conclusion that Penal Code section 148, subdivision (a)(1) (hereafter section 148(a)(1)) 1 was a lesser included offense of section 69 as alleged in the amended information. Our holding in People v. Barrick (1982) 33 Cal.3d 115, 133 [ 187 Cal.Rptr. 716 , 654 P.2d 1243 ] (Barrick) compels this result. I write separately to express my view that Barrick’’& interpretation of the accusatory pleading test is ill reasoned and lacks persuasive force. However, because neither party has urged us to overrule Barrick on that point, the question must await another day.

*246 We have employed two tests to determine whether a lesser offense is necessarily included in a charged offense for purposes of the trial court’s instructional duties: “a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117 [ 77 Cal.Rptr.2d 848 , 960 P.2d 1073 ], italics added (Birks).) The majority correctly…

Filed 7/18/

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

) Plaintiff and Respondent, ) ) S201186 v. ) ) Ct.App. 2/1 B223181

DEWONE T. SMITH, )

) Los Angeles County Defendant and Appellant. ) Super. Ct. No. BA337647 ____________________________________)

Defendant Dewone T. Smith was charged with resisting an executive officer in the performance of his duties under Penal Code section 69 (hereafter section 69) and convicted by a jury. During the trial, the superior court denied defendant‘s request to instruct the jury that it could instead convict him of the lesser offense of resisting a public officer under Penal Code section 148, subdivision (a)(1) (hereafter section 148(a)(1)), a crime that defendant contends is necessarily included within section 69. We hold that section 148(a)(1) was a necessarily included lesser offense of section 69 as alleged in the amended information. But because the record does not reveal substantial evidence that defendant violated section 148(a)(1) without also violating section 69, the…