Can a defense counsel be found to have invited error by failing to respond to a complained-of instruction?

California, United States of America


The following excerpt is from People v. Humphrey, C052744, Super. Ct. No. 02F02888 (Cal. App. 2011):

Invited error will be found only if defense counsel expresses a deliberate tactical purpose in resisting or acceding to the complained-of instruction. A record that is ambiguous as to whether defense counsel considered and rejected instructions on all lesser included offenses is not sufficient. (People v. Valdez (2004) 32 Cal.4th 73, 115-116.) Here, defense counsel expressed no such deliberate, tactical purpose and thus did not invite the error.

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