PG V(K) Instruction on Inconsistent Defenses.
The defendant has a right to instruction on inconsistent defenses. (Mathews v. U.S. (1988) 485 US 58, 63-64 [99 LEd2d 54]; People v. Randle (2005) 35 C4th 987, 1004 [error to refuse instruction on imperfect defense of another even though thrust of defendant’s testimony was that he acted in perfect defense of another]; People v. Barton (1995) 12 C4th 186; People v. Atchison (1978) 22 C3d 181, 183; People v. Villanueva (2008) 169 CA4th 41, 54-55 [right to instruction on self-defense despite defendant’s assertion of accident]; People v. Elize (1999) 71 CA4th 605 [trial court erred in refusing self-defense instruction when defendant testified that gun fired accidentally during the struggle]; People v. Middleton(1997) 52 CA4th 19, 33-34 [“[T]he defense’s theory of accident does not free the court from the duty of instructing on the partial defense of provocation…”]; People v. Glenn (1991) 229 CA3d 1461, 1467 [defendant testified he intended to stab victim in self-defense but later said victim “accidentally” “got stuck” by defendant’s knife; defendant said he had no intent to kill; error not to instruct on involuntary manslaughter]; see also 5 Witkin, Cal. Criminal Law (2d ed 1989) Trial, §2922, p. 3583; Annotation, Accused’s right to have jury instructed as to both unintentional shooting and self-defense, 15 ALR4th 983 and Later Case Service; but see People v. Bohana (2000) 84 CA4th 360 [100 CR2d 845, 852] [no duty to instruct sua sponte on defense when inconsistent with defendant’s theory at trial].
Moreover, if substantial evidence would support a defense inconsistent with that advanced by the defendant, the court should ascertain whether the defendant wishes instructions on the alternative theory. (People v. Sedeno (1974) 10 C3d 703, 717, fn 7; People v. DeLaPlane (1979) 88 CA3d 223, 248; but see People v. Curtis (1994) 30 CA4th 1337, 1357-59 [defendant’s claim that the gun went off accidentally barred relying on both traditional and imperfect self defense].)
However, with the possible exception of lesser included offenses (see FORECITE PG V(A)(7)), the court has no duty to instruct on inconsistent defenses over defense objection. (But see People v. Sinclair (1998) 64 CA4th 1012 [no right to inconsistent lesser offense theory if defendant’s testimony “completely obviates any basis for finding a lesser included offense”].) And, in any event, the invited error doctrine will likely apply. (See FORECITE PG VI(A).)
