California, United States of America
The following excerpt is from People v. Smith, 233 Cal.Rptr.3d 1, 4 Cal.5th 1134, 417 P.3d 662 (Cal. 2018):
of a lesser included offense which find substantial support in the evidence." ( People v. Breverman (1998) 19 Cal.4th 142, 162, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) But a court must instruct on such theories only when the record contains " "substantial evidence" from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense. " ( People v. Whalen (2013) 56 Cal.4th 1, 68, 152 Cal.Rptr.3d 673, 294 P.3d 915 ( Whalen ).)
Here, defendants claim that the trial court should have instructed on second degree murder fails at the outset because defendant himself asked the court not to give the instruction at trial. "[A] defendant may not invoke a trial courts failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence." ( People v. Barton (1995) 12 Cal.4th 186, 198, 47 Cal.Rptr.2d 569, 906 P.2d 531.) Defense counsel in this case asked the court not to instruct on second degree murder; he said he had discussed the matter with defendant, and defendant personally joined in the request on the record. Defendant thereby invited the alleged error of which he now complains.