lesser non-included offense instruction in Colorado

2016Unlike a lesser included offense, "a lesser non-included offense instruction may be given only if the defendant requests it or consents to it." People v. Skinner, 825 P.2d 1045 , 1047 (Colo.App.1991).

2015Id. at 1047-48 . ¶ 10 No absolute right to a lesser non-included offense instruction exists.

2015People v. Rivera, 186 Colo. 24, 28 , 525 P.2d 431, 434 (1974); Skinner, 825 P.2d at 1047 ; see also Mathews v. United States, 485 U.S. 58, 63 , 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988) (“As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.”). ¶ 11 Whether the record contains evidentiary support for a lesser non-included offense instruction is a factual inquiry which we review for an abuse of discretion.

2015People v. Rivera, 186 Colo. 24, 28 , 525 P.2d 431, 434 (1974); Skinner, 825 P.2d at 1047 ; see also Mathews v. United States, 485 U.S. 58, 63 , 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988) (“As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.”). ¶ 11 Whether the record contains evidentiary support for a lesser non-included offense instruction is a factual inquiry which we review for an abuse of discretion.

2012Because the merger doctrine applicable to lesser included offenses does not preclude a defendant from being convicted of both the original charge and a lesser nonineluded offense, "a defendant's request for a lesser non-included offense instruction is in the nature of a strategy." Id. at 1047-48 ; accord Arko v. People, 183 P.3d 555, 558 (Colo.2008).

2008Two dissenting justices concluded "the decision to request a lesser non-included offense instruction ... implicates a fundamental right, and therefore must remain with the defendant himself rather than his counsel." Id. at 561 (Coats, J., with Eid, J., dissenting).

2007See People v. Bielecki, 964 P.2d 598 (Colo.App.1998) (a lesser non-included offense instruction may be given only if the defendant requests it or consents to it).

2000See People v. Bielecki, 964 P2d 598 (Colo.App.1998).

2009Accordingly, we must review the record independently. 4, Application to this Case A defendant is entitled to a lesser non-included offense instruction if there is "a rational basis in the evidence to support a verdict acquitting [him] of a greater offense and convicting [him] of the lesser offense." People v. Trujillo, 83 P.3d 642, 645 (Colo. 2004) (internal punctuation omitted); accord People v. Garcia, 940 P.2d 357, 361 (Colo. 1997).

2009What *362 is clear, however, is that failure to give a lesser non-included offense instruction may be harmless-and perhaps may not even be error-if "the defendant's theory could be argued under the other instructions given by the court." Trujillo, 83 P.3d at 645 (stating "error" in such cases "is not prejudicial," and "[nlo error occurs when the trial court refuses to give a defense theory instruction when the contents of other instructions suffice") (internal quotations and other punctuation omitted).

2015The failure to give a lesser non-included offense instruction may be harmless if “the defendant’s theory could be argued under the other instructions given by the court.” People v. Rubio, 222 P.3d 355, 362 (Colo.App.2009) (internal quotation marks omitted). ¶30 It is undisputed -that the jury was instructed on the lesser non-included offense of harassment related to Naranjo’s actions not involving the gun.

2015Cf. Rubio, 222 P.3d at 362 (“[A] trial court’s refusal to give a lesser non-included offense instruction will not justify reversal ... if the court instructed on comparable lesser non-included offenses.”).

2008People v. Bustos, 725 P.2d 1174, 1175-76 (Colo.App.1986) (defendant was not entitled to a lesser non-included offense instruction that was inconsistent with his theory of defense that he did not know the substance in his possession was cocaine); cf. People v. Villarreal, 131 P.3d 1119, 1125 (Colo.App.2005) (defendant was not entitled to instruction on defense of voluntary intoxication where it was inconsistent with her theory of defense that she was not the person who attacked the victim).

1991Thus, an instruction on a lesser non-included offense should be given “if there is a rational basis for the jury to acquit the defendant of the offense charged and simultaneously find him guilty of the lesser offense.” People v. Bustos, supra. Another important distinction is that both the prosecutor and the defendant may ask the court to instruct the jury on lesser included offenses; however a lesser non-included offense instruction may be given only if the defendant requests it or consents to it.

2015People v. Rivera, 186 Colo. 24, 28 , 525 P.2d 431, 434 (1974); Skinner, 825 P.2d at 1047 ; see also Mathews v. United States, 485 U.S. 58, 63 , 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988) (“As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.”). ¶ 11 Whether the record contains evidentiary support for a lesser non-included offense instruction is a factual inquiry which we review for an abuse of discretion.

2015People v. Rivera, 186 Colo. 24, 28 , 525 P.2d 431, 434 (1974); Skinner, 825 P.2d at 1047 ; see also Mathews v. United States, 485 U.S. 58, 63 , 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988) (“As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.”). ¶ 11 Whether the record contains evidentiary support for a lesser non-included offense instruction is a factual inquiry which we review for an abuse of discretion.

2009But there is no constitutional right to a lesser included instruction in a non-capital case, see United States v. Eddy, 523 F.3d 1268, 1270 (10th Cir.2008) (citing Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.2004)), much less to a lesser non-included offense instruction.

2009But there is no constitutional right to a lesser included instruction in a non-capital case, see United States v. Eddy, 523 F.3d 1268, 1270 (10th Cir.2008) (citing Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.2004)), much less to a lesser non-included offense instruction.

2009Accordingly, we must review the record independently. 4, Application to this Case A defendant is entitled to a lesser non-included offense instruction if there is "a rational basis in the evidence to support a verdict acquitting [him] of a greater offense and convicting [him] of the lesser offense." People v. Trujillo, 83 P.3d 642, 645 (Colo. 2004) (internal punctuation omitted); accord People v. Garcia, 940 P.2d 357, 361 (Colo. 1997).

2009Defendant argues a lesser non-included offense instruction should be no different than any other theory of defense instruction, required as long as "the record contains any evidence to support it." People v. Fuller, 781 P.2d 647, 651 (Colo.1989).

2009See also People v. Carey, 198 P.3d 1223, 1233-34 (Colo.App.2008) (citing several cases applying this standard).

2008People v. Bustos, 725 P.2d 1174, 1175-76 (Colo.App.1986) (defendant was not entitled to a lesser non-included offense instruction that was inconsistent with his theory of defense that he did not know the substance in his possession was cocaine); cf. People v. Villarreal, 131 P.3d 1119, 1125 (Colo.App.2005) (defendant was not entitled to instruction on defense of voluntary intoxication where it was inconsistent with her theory of defense that she was not the person who attacked the victim).