Guilt of Included Offense Permitted: Defined

(a) The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is included in that with which he is charged. (b) An offense is included under Subsection (a) when: (1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) It consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or (3) 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 interest or a lesser kind of culpability suffices to establish its commission. NOTE: Section 105.58 continues the substance of former Rule 31(c) however, it now includes a reference to court-tried cases and Subsection (b) has been added to give statutory guidance to the determination of what is an included offense. Subsection (b) is substantively the same as Model Penal Code § 1.07(4). Compare former § 1151. See also Cal. Pen. Code § 1159; Fed. R. Crim. P. 31(c). See generally B. Witkin, California Criminal Procedure Judgment and Attack in Trial Court §§ 541-543 (1963, Supp. 1973); 8 Moore, Federal Practice &31.03(1974).