lesser included instruction in California

2025We disagree because we find that there is not substantial evidence to support the lesser included instruction. “‘On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.’” (People v. Avila (2009) 46 Cal.4th 680 , 704–705.) A trial court has a sua sponte duty to give the jury “instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present.” (People v. Breverman (1998) 19 Cal.4th 142 , 154–155.) However, this requirement is limited: “the existence of

2023(E.g., People v. Breverman, supra, 19 Cal.4th at p. 154 ; People v. Smith (2013) 57 Cal.4th 232, 245 .) The question here, however, is not whether the court erred in failing to give a lesser included instruction, but whether it erred in giving it.

2014Voluntary manslaughter Defendant asserts there was substantial evidence to support a lesser included instruction on voluntary manslaughter based on “the unlawful killing of a human being without malice aforethought ‘upon a sudden quarrel or heat of passion.’ [Citation.]” (Cole, supra, 33 Cal.4th at p. 1215 .) “Heat of passion arises when ‘at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion ra

2014(People v. Gutierrez (2003) 112 Cal.App.4th 704 , 708–709.) A lesser included instruction on voluntary manslaughter may be based on “the unlawful killing of a human being without malice aforethought ‘upon a sudden quarrel or heat of passion.’ [Citation.]” (Cole, supra, 33 Cal.4th at p. 1215 .) “Heat of passion arises when ‘at the time of the killing, the reason of the accused was obscured or 14. disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than fr

2026In contending that we must not presume his defense counsel’s election was tactical, Reyes cites People v. Walker (2015) 237 Cal.App.4th 111, 119 (Walker) and People v. Wickersham (1982) 32 Cal.3d 307, 335 (Wickersham) for the proposition that “[t]he mere existence of a possible tactical purpose for acquiescing to omission of a lesser included instruction does not suffice” because, “[i]f this were the test, ‘then invited error would be found wherever the accused had a tactical reason not to seek a necessarily included instruction.

2016"Error in failing to give a lesser included instruction is reviewed for prejudice under the People v. Watson (1956) 46 Cal.2d 818 [ 299 P.2d 243 ] standard." ( People v. Walker (2015) 237 Cal.App.4th 111 , 115, 187 Cal.Rptr.3d 606 .) Under that standard, reversal is warranted only if it appears "reasonably probable" the defendant would have obtained a more favorable outcome had the error not occurred. ( Watson , at p. 836, 299 P.2d 243 .) We may consider defense counsel's statements during closing argument when determining whether an error in instructing the jury was prejudicial. ( People v. D

2025(People v. Chandler (2014) 60 Cal.4th 508, 514 (Chandler); Toledo, supra, 26 Cal.4th at p. 226 .) “ ‘[I]f a defendant . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat.’ ” (Chandler, at p. 515.) We need n

2023(People v. Chandler (2014) 60 Cal.4th 508, 514 (Chandler); Toledo, supra, 26 Cal.4th at p. 226 .) “ ‘[I]f a defendant . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat.’ ” (Chandler, at p. 515.) We need n

2025(People v. Chandler (2014) 60 Cal.4th 508, 514 (Chandler); Toledo, supra, 26 Cal.4th at p. 226 .) “ ‘[I]f a defendant . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat.’ ” (Chandler, at p. 515.) We need n

2023(People v. Chandler (2014) 60 Cal.4th 508, 514 (Chandler); Toledo, supra, 26 Cal.4th at p. 226 .) “ ‘[I]f a defendant . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat.’ ” (Chandler, at p. 515.) We need n

2024The parties’ primary disagreement is whether the lesser included instruction on section 288(a) for count 3 the court provided to the jury was sufficient.4 In deciding whether instructional error occurred, we “assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” (People v. Mills (1991) 1 Cal.App.4th 898, 918 ; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 915 .) “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or f

2021The parties’ primary disagreement is whether the lesser included instruction on section 288(a) for count 3 the court provided to the jury was sufficient.4 In deciding whether instructional error occurred, we “assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” (People v. Mills (1991) 1 Cal.App.4th 898, 918 ; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 915 .) “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or f

2024The parties’ primary disagreement is whether the lesser included instruction on section 288(a) for count 3 the court provided to the jury was sufficient.4 In deciding whether instructional error occurred, we “assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” (People v. Mills (1991) 1 Cal.App.4th 898, 918 ; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 915 .) “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or f

2021The parties’ primary disagreement is whether the lesser included instruction on section 288(a) for count 3 the court provided to the jury was sufficient.4 In deciding whether instructional error occurred, we “assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” (People v. Mills (1991) 1 Cal.App.4th 898, 918 ; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 915 .) “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or f

2024The parties’ primary disagreement is whether the lesser included instruction on section 288(a) for count 3 the court provided to the jury was sufficient.4 In deciding whether instructional error occurred, we “assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” (People v. Mills (1991) 1 Cal.App.4th 898, 918 ; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 915 .) “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or f

2021The parties’ primary disagreement is whether the lesser included instruction on section 288(a) for count 3 the court provided to the jury was sufficient.4 In deciding whether instructional error occurred, we “assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” (People v. Mills (1991) 1 Cal.App.4th 898, 918 ; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 915 .) “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or f

2024The parties’ primary disagreement is whether the lesser included instruction on section 288(a) for count 3 the court provided to the jury was sufficient.4 In deciding whether instructional error occurred, we “assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” (People v. Mills (1991) 1 Cal.App.4th 898, 918 ; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 915 .) “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or f

2021The parties’ primary disagreement is whether the lesser included instruction on section 288(a) for count 3 the court provided to the jury was sufficient.4 In deciding whether instructional error occurred, we “assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” (People v. Mills (1991) 1 Cal.App.4th 898, 918 ; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 915 .) “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or f

2024The parties’ primary disagreement is whether the lesser included instruction on section 288(a) for count 3 the court provided to the jury was sufficient.4 In deciding whether instructional error occurred, we “assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” (People v. Mills (1991) 1 Cal.App.4th 898, 918 ; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 915 .) “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or f

2021The parties’ primary disagreement is whether the lesser included instruction on section 288(a) for count 3 the court provided to the jury was sufficient.4 In deciding whether instructional error occurred, we “assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” (People v. Mills (1991) 1 Cal.App.4th 898, 918 ; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 915 .) “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or f

2025“Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.] In addition, a lesser included instruction need not be given when there is no evidence that the offense is less than that charged.” (People v. Mendoza, supra, 24 Cal.4th at p. 174 .) 13.

2015“An instruction on a lesser included offense must be given only when the evidence warrants such an instruction. [Citation.] To warrant such an instruction, there must be substantial evidence of the lesser included offense, that is, ‘evidence from which a rational trier of fact could find beyond a reasonable doubt’ that the defendant committed the lesser offense. [Citation.] Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.] In addition, 31 a lesser included instruction need not be given when there is no evidence that the offense is le

2022(See Breverman, supra, 19 Cal.4th at pp. 165, 178; Watson, supra, 46 Cal.2d at p. 836 .) Our conclusion any error was harmless finds further support in the jury’s decision not to convict Flores of the lesser included defense of simple battery on any of the Forcible Sex Offenses.

2022(See Breverman, supra, 19 Cal.4th at pp. 165, 178; Watson, supra, 46 Cal.2d at p. 836 .) Our conclusion any error was harmless finds further support in the jury’s decision not to convict Flores of the lesser included defense of simple battery on any of the Forcible Sex Offenses.

2025(Brown, at pp. 154-155; People v. White (1980) 101 Cal.App.3d 161, 168 .) The failure to instruct on a lesser-included offense requires reversal in a noncapital case only if “an examination of the entire record establishes a reasonable probability that the error affected the outcome.” (People v. Wyatt (2012) 55 Cal.4th 694, 698 .) Even if we assume for purposes of argument that the trial court should have given a lesser-included instruction on assault, there is no reasonable probability that a jury would have convicted defendant solely of assault (rather than resisting an executive officer) be

2020He contends that the jury should have been given the lesser included instruction as to both offenses based on his testimony that all of Lisa’s injuries were caused by the thrown metal coffee cup. 6. this regard, the testimony of a single witness … may suffice to require lesser included offense instructions. [Citation.] Courts must assess sufficiency of the evidence without evaluating the credibility of witnesses, for that is a task reserved for the jury. [Citation.] The failure to instruct on a lesser included offense in a noncapital case does not require reversal ‘unless an examination of the

2026The paragraph commencing at the bottom of page 7 with “Based on this evidence . . .” and ending at the top of page 8 with “we need not discuss harmless error,” the last sentence beginning “Because there was substantial evidence . . .” is removed and the following is inserted in its place: Because there was no substantial evidence that Hahn was not in sustained fear (People v. Souza (2012) 54 Cal.4th 90, 116 ), the trial court did not err by declining to give the lesser included instruction.

2015Martin (1970) 1 Cal.3d 524, 533 [ 83 Cal.Rptr. 166 , 463 P.2d 390 ].) “On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.” (People v. Souza (2012) 54 Cal.4th 90, 113 [ 141 Cal.Rptr.3d 419 , 277 P.3d 118 ].) Error in failing to give a lesser included instruction is reviewed for prejudice under the People v. Watson (1956) 46 Cal.2d 818 [ 299 P.2d 243 ] standard.

2024(See, e.g., People v. Shockley (2013) 58 Cal.4th 400, 406 [no sua sponte obligation to instruct when, under the elements test, a lesser offense is not necessarily included in the charged offense]; People v. Huggins (2006) 38 Cal.4th 175, 217 [no sua sponte obligation to instruct when there was not substantial evidence justifying an instruction on the lesser included offense].) To the extent Rios is arguing that a lesser included instruction was required under the accusatory pleading test, we disagree.

2013Rather, . . . ' "such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]" ' that the lesser offense, but not the greater, was committed." ' [Citation.]" (People v. Huggins (2006) 38 Cal.4th 175, 215 .) "Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.] In addition, a lesser included inst

2024It is an injury that is greater than minor or moderate harm.” “As is relevant here, the difference between felony elder abuse and misdemeanor elder abuse is whether the abuse is perpetrated ‘under circumstances or conditions likely to produce great bodily harm or death.’ If it is, the crime is a potential felony. [Citation.] If it is not, the crime is a misdemeanor.” (People v. Racy (2007) 148 Cal.App.4th 1327 , 1334–1335 (Racy).) 7 We agree with respondent that substantial evidence does not support giving the lesser included instruction in this case.

2021“A trial court must instruct on a lesser included offense if there is substantial evidence from which a reasonable jury could conclude the defendant is guilty of the lesser offense, but not the charged offense.” (People v. Racy (2007) 148 Cal.App.4th 1327, 1335 (Racy), citing Breverman, supra, 19 Cal.4th at p. 162 .) “‘“Substantial evidence” in this specific context is defined as evidence which is “sufficient to ‘deserve consideration by the jury, i.e., “evidence from which a jury composed of reasonable men [and women] could have concluded’” that the particular facts underlying the instruction

2024On this record, we find that defense counsel deliberately caused the trial court to fail to give the false imprisonment instruction. ( Cooper, supra, at p. 831 .) Defendant contends that the invited error doctrine does not apply because trial counsel’s statement that he was “not requesting” the false imprisonment instruction is not equivalent to expressly asking the trial court to forgo giving the lesser included instruction.

2024On this record, we find that defense counsel deliberately caused the trial court to fail to give the false imprisonment instruction. ( Cooper, supra, at p. 831 .) Defendant contends that the invited error doctrine does not apply because trial counsel’s statement that he was “not requesting” the false imprisonment instruction is not equivalent to expressly asking the trial court to forgo giving the lesser included instruction.

2024(See, e.g., People v. Shockley (2013) 58 Cal.4th 400, 406 [no sua sponte obligation to instruct when, under the elements test, a lesser offense is not necessarily included in the charged offense]; People v. Huggins (2006) 38 Cal.4th 175, 217 [no sua sponte obligation to instruct when there was not substantial evidence justifying an instruction on the lesser included offense].) To the extent Rios is arguing that a lesser included instruction was required under the accusatory pleading test, we disagree.

2023A “court need instruct the jury on a lesser included offense only ‘[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of’ the lesser 10 offense.” (Shockley, supra, 58 Cal.4th at p. 404 .) Here, as discussed above, there is no “substantial evidence” that defendant did not commit lewd acts on C., i.e., that he did not act with any sexual motivation on either of the occasions charged in the information.