lesser offense instruction in California

1999(See People v. Ramkeesoon, supra, 39 Cal.3d at p. 352 ; and People v. Morales (1975) 49 Cal.App.3d 134, 141, fn. 4 [ 122 Cal.Rptr. 157 ].) The People argue that any error in this respect was harmless since the jury received a written instruction on the offense of grand theft by larceny (§ 487, subd. 1) during its deliberations and was verbally instructed prior to deliberations on the offense of grand theft from the person (§ 487, subd. 2) as a lesser included offense of the robbery charged in count two.

1996Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.’ [Citation.]” (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351 [ 216 Cal.Rptr. 455 , 702 P.2d 613 ], italics omitted.) An offense is a necessarily included lesser where the greater offense cannot be committed without necessarily committing the lesser.

2015(See Montes, at pp. 874-875.) This court has explained that "a special circumstance is a penalty enhancement." (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1231 , italics added.) Citing Wolcott, supra, 34 Cal.3d at page 101 , we also explained in Jurado that "[p]enalty enhancements are not part of the greater or lesser offense analysis." (Jurado, p. 1231.) We further explained that "[i]n California criminal procedure special circumstances are decided during the guilt phase, after a verdict of first degree murder has been reached by the jury." (Ibid., italics added, citing Peop

1992(People v. Odie (1988) 45 Cal.3d 386, 411, fn. 11 [ 247 Cal.Rptr. 137 , 754 P.2d 184 ].) Penalty enhancements are not part of the greater or lesser offense analysis.

2013Schmuck states that “where the jury suspects that the defendant is plainly guilty of some offense, but one of the elements of the charged offense remains in doubt, in the absence of a lesser offense instruction, the jury will likely fail to give full effect to the reasonable doubt standard, resolving its doubts in favor of conviction. [Citation.] The availability of a lesser included offense instruction protects the defendant from such improper conviction.” (Schmuck, at p. 717, fn. 9 [ 103 L.Ed.2d at p. 747, fn. 9 ].) Defendant argues “[t]he logic of Schmuck is equally applicable here.

1998Schmuck concluded that because rule 31(c) embodies a strict elements approach to lesser necessarily included offenses, the parties to a federal criminal action are not entitled to instructions on lesser offenses which, though arguably related to the charged offense in some way, contain statutory elements not found in the charged offense. ( Schmuck, supra, 489 U. S. at pp. 715-721, 109 S.Ct. 1443 .) The defendant in Schmuck , like the accused in Keeble , had requested a lesser offense instruction, and in both decisions, the court noted the long-standing principle that the rule entitles the defe

2002(Beck v. Alabama (1980) 447 U.S. 625, 633-638 [ 100 S.Ct. 2382, 2387-2390 , 65 L.Ed.2d 392 ]; Keeble v. United States (1973) 412 U.S. 205, 212-213 [ 93 S.Ct. 1993, 1998 , 36 L.Ed.2d 844 ] [“[A] defendant is entitled to a lesser offense instruction . . . precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory.

2002(Beck v. Alabama (1980) 447 U.S. 625, 633-638 [ 100 S.Ct. 2382, 2387-2390 , 65 L.Ed.2d 392 ]; Keeble v. United States (1973) 412 U.S. 205, 212-213 [ 93 S.Ct. 1993, 1998 , 36 L.Ed.2d 844 ] [“[A] defendant is entitled to a lesser offense instruction . . . precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory.

2002(Beck v. Alabama (1980) 447 U.S. 625, 633-638 [ 100 S.Ct. 2382, 2387-2390 , 65 L.Ed.2d 392 ]; Keeble v. United States (1973) 412 U.S. 205, 212-213 [ 93 S.Ct. 1993, 1998 , 36 L.Ed.2d 844 ] [“[A] defendant is entitled to a lesser offense instruction . . . precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory.

2002(Beck v. Alabama (1980) 447 U.S. 625, 633-638 [ 100 S.Ct. 2382, 2387-2390 , 65 L.Ed.2d 392 ]; Keeble v. United States (1973) 412 U.S. 205, 212-213 [ 93 S.Ct. 1993, 1998 , 36 L.Ed.2d 844 ] [“[A] defendant is entitled to a lesser offense instruction . . . precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory.

1987The purpose of the Flannel instruction is to mitigate due to the absence of malice, not to absolve the defendant of criminal responsibility—Flannel did not take the step of excusing an offense due to an unreasonable belief in the need for self defense. 5 The duty to instruct sua sponte on unreasonable belief thus goes hand in hand with the duty to instruct on lesser included offenses: if the evidence would justify a conviction of a lesser included offense, the court must instruct on that lesser offense (People v. Wickersham, supra, [(1982)] 32 Cal.3d. 307, 325 [ 185 Cal.Rptr. 436 , 620 P.2d 31

1987The purpose of the Flannel instruction is to mitigate due to the absence of malice, not to absolve the defendant of criminal responsibility — Flannel did not take the step of excusing an offense due to an unreasonable belief in the need for self defense. [5] The duty to instruct sua *704 sponte on unreasonable belief thus goes hand in hand with the duty to instruct on lesser included offenses: if the evidence would justify a conviction of a lesser included offense, the court must instruct on that lesser offense ( People v. Wickersham, supra, [(1982)] 32 Cal.3d. 307, 325 [ 185 Cal. Rptr. 436 ,

2015(See Montes, at pp. 874-875.) This court has explained that "a special circumstance is a penalty enhancement." (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1231 , italics added.) Citing Wolcott, supra, 34 Cal.3d at page 101 , we also explained in Jurado that "[p]enalty enhancements are not part of the greater or lesser offense analysis." (Jurado, p. 1231.) We further explained that "[i]n California criminal procedure special circumstances are decided during the guilt phase, after a verdict of first degree murder has been reached by the jury." (Ibid., italics added, citing Peop

2015(See Montes, at pp. 874-875.) This court has explained that "a special circumstance is a penalty enhancement." (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1231 , italics added.) Citing Wolcott, supra, 34 Cal.3d at page 101 , we also explained in Jurado that "[p]enalty enhancements are not part of the greater or lesser offense analysis." (Jurado, p. 1231.) We further explained that "[i]n California criminal procedure special circumstances are decided during the guilt phase, after a verdict of first degree murder has been reached by the jury." (Ibid., italics added, citing Peop

1999(See People v. Ramkeesoon, supra, 39 Cal.3d at p. 352 ; and People v. Morales (1975) 49 Cal.App.3d 134, 141, fn. 4 [ 122 Cal.Rptr. 157 ].) The People argue that any error in this respect was harmless since the jury received a written instruction on the offense of grand theft by larceny (§ 487, subd. 1) during its deliberations and was verbally instructed prior to deliberations on the offense of grand theft from the person (§ 487, subd. 2) as a lesser included offense of the robbery charged in count two.

1999(See People v. Ramkeesoon, supra, 39 Cal.3d at p. 352 ; and People v. Morales (1975) 49 Cal.App.3d 134, 141, fn. 4 [ 122 Cal.Rptr. 157 ].) The People argue that any error in this respect was harmless since the jury received a written instruction on the offense of grand theft by larceny (§ 487, subd. 1) during its deliberations and was verbally instructed prior to deliberations on the offense of grand theft from the person (§ 487, subd. 2) as a lesser included offense of the robbery charged in count two.

2024(See People v. Cooper (1991) 53 Cal.3d 771, 827 [under the doctrine of invited error, the defendant could not complain of the court’s failure to instruct on a lesser offense where defense counsel objected to the instruction]; but see In re Andrews (1976) 18 Cal.3d 208, 212 [the doctrine of invited error does not apply to an unauthorized sentence].) To the extent defendant is arguing consideration of whether his release around the age of 75 would endanger public safety was an impermissible factor for the trial court to consider, the argument is meritless.

2016As the majority states, a trial court has a duty to instruct the jury sua sponte “ ‘ “on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.” ’ ” (Maj. opn., ante, at pp. 488-489, quoting People v. Breverman (1998) 19 Cal.4th 142, 154 [ 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ] (Breverman).) The lesser offense instruction must be given when substantial evidence could support a finding that the defendant is guilty of the lesser offe

2016As the majority states, a trial court has a duty to instruct the jury sua sponte “ ‘ “on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.” ’ ” (Maj. opn., ante, at pp. 488-489, quoting People v. Breverman (1998) 19 Cal.4th 142, 154 [ 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ] (Breverman).) The lesser offense instruction must be given when substantial evidence could support a finding that the defendant is guilty of the lesser offe

2002Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.”] (Italics in original.).) “An offense is necessarily included in another if. . . the greater statutory offense cannot be committed without committing the lesser because all of *366 the elements of the lesser offense are included in the elements of the greater.” (People v. Clark (1990) 50 Cal.3d 583, 636 [ 268 Cal.Rptr. 399 , 789 P.2d 127 ].) In other words, when the greater crime “cannot be committed without al

2002Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.”] (Italics in original.).) “An offense is necessarily included in another if. . . the greater statutory offense cannot be committed without committing the lesser because all of *366 the elements of the lesser offense are included in the elements of the greater.” (People v. Clark (1990) 50 Cal.3d 583, 636 [ 268 Cal.Rptr. 399 , 789 P.2d 127 ].) In other words, when the greater crime “cannot be committed without al

2002Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.”] (Italics in original.).) “An offense is necessarily included in another if. . . the greater statutory offense cannot be committed without committing the lesser because all of *366 the elements of the lesser offense are included in the elements of the greater.” (People v. Clark (1990) 50 Cal.3d 583, 636 [ 268 Cal.Rptr. 399 , 789 P.2d 127 ].) In other words, when the greater crime “cannot be committed without al

2002Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.”] (Italics in original.).) “An offense is necessarily included in another if. . . the greater statutory offense cannot be committed without committing the lesser because all of *366 the elements of the lesser offense are included in the elements of the greater.” (People v. Clark (1990) 50 Cal.3d 583, 636 [ 268 Cal.Rptr. 399 , 789 P.2d 127 ].) In other words, when the greater crime “cannot be committed without al