People v. Smith, 57 Cal. 4th 232

Defendant Smith was charged with resisting an executive officer under Penal Code §69 and convicted by a jury.
The court did not instruct on the lesser offense of resisting a public officer under §148(a)(1), though the information alleged dual theories of §69 liability.
Two relevant incidents (April 21, 2008 and September 11, 2008) formed the core factual basis for the §69 charges, involving resistance and threats toward deputies.
The amended information alleged §69 in two ways: resisting by force/violence and deterring by threat of force, asserting multiple avenues for the offense.
The jury found both counts of deterring or resisting under §69; one count was a special verdict, and the other not to that specific lesser-offense theory.
The Court of Appeal affirmed the conviction but remanded on sentencing; the Supreme Court granted review to resolve whether §148(a)(1) is a necessarily included offense of §69.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is §148(a)(1) a necessarily included offense of §69 as charged?	People argued not a lesser included offense (related, not included).	Smith contends §148(a)(1) is necessarily included when §69 is charged for resisting with force/violence.	Yes, §148(a)(1) was a necessarily included offense as alleged.
Should the trial court have instructed on the lesser offense sua sponte given the amended information?	No duty to instruct if not supported by substantial evidence.	The court should have instructed because the pleading alleged two ways of committing §69.	Yes, the court must instruct where the pleading alleges a lesser offense necessarily subsumed by the greater.
Does the conjunctive charging in the information affect the accusatory pleading test for lesser offenses?	Barrick principle may apply; conjunctive pleading expands theories.	Barrick’s accusatory pleading approach is ill-reasoned and not controlling here.	The conjunctive pleading here did not prevent a duty to instruct on a necessarily included lesser offense.

People v. Birks, 19 Cal.4th 108 (Cal. 1998) (necessity of lesser included offenses based on evidentiary support)
People v. Breverman, 19 Cal.4th 142 (Cal. 1998) (instruction on lesser included offenses when supported by evidence)
People v. Barrick, 33 Cal.3d 115 (Cal. 1982) (accusatory pleading test; Barrick’s impact on lesser included offenses)
People v. Moon, 37 Cal.4th 1 (Cal. 2005) (confronts Barrick interpretation in light of multiple theories)
People v. Lacefield, 157 Cal.App.4th 249 (Cal. App. 2007) (noting limitations of statutory elements test for lesser included offenses)
People v. Lopez, 129 Cal.App.4th 1508 (Cal. App. 2005) (not a lesser included offense under elements; discussion of theories)
People v. Marshall, 48 Cal.2d 394 (Cal. 1957) (how accusatory pleading can compel inclusion of lesser offenses when pleaded descriptively)