Can a defense counsel argue that the only crime of which defendant can be convicted was assault rather than assault?
California, United States of America
The following excerpt is from People v. Walker, 14 Cal.App.4th 1615, 18 Cal.Rptr.2d 431 (Cal. App. 1993):
Here, defense counsel's theory of the case was that there was an absence of the intent to kill and thus the only crime of which defendant could be convicted was assault. Based on the record before this court, we cannot say that counsel's choice of that theory was a tactical decision which would not be made by a diligent, ordinarily prudent lawyer. (People v. Pope, supra, 23 Cal.3d at p. 424, 152 Cal.Rptr. 732, 590 P.2d 859.)
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