Is Assault by Means of Force Likely to Produce Great Bodily Injury a Lesser Included Offense of Assault With a Deadly Weapon? June 1st, 2021
Review granted in People v. Aguayo, S254554. (D073304; 31 Cal.App.5th 758; San Diego County Superior Court; SCS295489.) to consider the following issues: (1) Is assault by means of force likely to produce great bodily injury a lesser included offense of assault with a deadly weapon? (See People v. Aledamat (2019) [8] Cal.5th 1, 16, […]
Tags: Assault , CC 875 , Lesser Included Offenses , Multiplicity
Drunk Driving Is Not an LIO of Gross Vehicular Manslaughter March 9th, 2021
The defendant in People v. Machuca (2020) 49 Cal.App.5th 393, 397 contended that his drunk driving convictions should be dismissed because VC 23153 (drunk driving) is a lesser included offense of gross vehicular manslaughter while intoxicated (PC 191.5, subd. (a)) when the offenses arise from a single incident. The reviewing court rejected this argument because […]
Tags: CC 591 , DUI/DWI , Lesser Included Offenses
Deficiencies in Defense Evidence Cannot Make up for Shortcomings in Prosecution’s Evidence August 13th, 2020
[Update of February 3rd, 2015 post] People v. Centeno (2014) 60 Cal. 4th 659 provides an important clarification of the presumption of innocence and the prosecution’s burden of proof: “…[D]eficiencies in the defense case [cannot] make up for shortcomings in [the prosecution’s case].” (Id., at 673.) For example, in People v. Brito (Sep. 19, 2019, […]
Tags: Appeal , Beyond A Reasonable Doubt , Burden Of Proof , CC 100 , CC 101 , CC 220 , Defense Theory Instructions , Lesser Included Offenses , Misstatement Of Law , Presumption of Innocence , Prosecutor Misconduct , Sample Instructions , Standard of Prejudice
Judicial Recognition That Juror Compromise May Produce Unreliable Verdicts When the Jury Is Given An All-Or-Nothing Choice Between Conviction and Acquittal May 17th, 2020
The rationale for requiring courts to instruct on lesser-included offenses is to avoid forcing the jury into an ” ‘unwarranted all-or-nothing choice’ ” that creates the risk the jury will convict on the charged offense even though one of the elements remains in doubt because ” ‘the defendant is plainly guilty of some offense.’ ” […]
Tags: Appeal , Lesser Included Offenses
Should Defendant’s Statements Which Show Guilt of Lesser Offense Be Viewed with Caution? June 7th, 2019
In People v. Powell (2018) 6 Cal. 5th 136; 169 the defendant contended that the cautionary instruction regarding the defendant’s out of court oral admissions (CJ 2.71.7) “pertains only to statements harmful to the defense.” The CSC apparently agreed that the instruction does not apply to exculpatory statements: “[T]his instruction properly applies to ‘any extrajudicial […]
Tags: Cautionary and Limiting Instructions , CC 358 , Lesser Included Offenses , Lesser Related Offenses , Sample Instructions
Residential Robbery is a Lesser Included Offense of Home Invasion Robbery July 2nd, 2018
Multiple convictions may not be based on necessarily included offenses based on one criminal act. (See, e.g., People v. Moran (1970) 1 Cal.3d 755, 763 [“If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed”].) In People […]
Tags: Appeal , CC 1600 , Lesser Included Offenses , Robbery
Lesser Included Offenses: Accusatory Pleading Test – Consideration of Evidence from Probable Cause Showing March 14th, 2017
People v. Ortega (2015) 240 Cal.App.4th 956, 967 held that: “Due process principles of fairness, and defendant’s right to be prosecuted only on the noticed charges consistent with the probable cause showing supporting the accusatory pleading, compel us to agree that sexual battery is a lesser included offense of forcible sexual penetration where, as here, […]
Tags: CC 1045 , CC Revisions , Lesser Included Offenses , Sex Crimes , Sexual Battery , Standard of Prejudice
CSC Review Granted: Lesser Included Offenses and Proposition 47 August 15th, 2016
The CSC has granted review in three cases to consider whether Proposition 47 (“the Safe Neighborhoods and Schools Act”) applies to the offense of unlawful taking or driving a vehicle (Veh. Code, 10851), because it is a lesser included offense of Penal Code section 487, subdivision (d), and that offense is eligible for resentencing to […]
Tags: Lesser Included Offenses
Error to Instruct on Felony Murder, but Not Malice Murder, its Lesser Included Offenses, or the Defenses of Accident and Self-defense August 8th, 2016
In People v. Gonzalez , District: 2 DCA , Division: 4 , Case #: B255375 the prosecutor charged appellants with malice murder but tried the case solely on a felony murder theory. The trial court did not instruct the jury on malice murder, its LIOs, or the defenses of accident and self-defense. “[U]nder the accusatory […]
Tags: CC 520 , CC 540 , CC 570 , CC 571 , CC 580 , Lesser Included Offenses , Murder
Is the Erroneous Failure to Instruct on Malice Murder Always Harmless Error When the Jury Finds the Defendant Guilty of First Degree Murder? August 5th, 2016
People v. Campbell (2015) 233 CA4th 148, suggested that a jury’s guilty verdict on felony murder and its true finding on a robbery special circumstance allegation do not render the failure to instruct on LIOs of malice murder harmless under Watson: While in the present case we are not dealing with the failure to give […]
Tags: CC 520 , CC 540 , CC 570 , CC 571 , CC 580 , Lesser Included Offenses , Murder
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