Does a defendant have a right to prevent the trial court from instructing on lesser included offenses?

California, United States of America


The following excerpt is from People v. Eilers, 231 Cal.App.3d 288, 282 Cal.Rptr. 252 (Cal. App. 1991):

Second, he contends that, on a general policy basis, a defendant should have the right to prevent the trial court from instructing on lesser included offenses. He notes that instructions as to lesser related offenses may only be given with the defendant's consent. (People v. Geiger, supra, 35 Cal.3d at p. 526, 199 Cal.Rptr. 45, 674 P.2d 1303.) He argues that the "same due process and fundamental fairness concerns which give appellant the right to permit or preclude jury consideration of lesser related offenses should give appellant the right to permit or preclude jury consideration of lesser included offenses." However, this contention fails to take into account the reason for the distinction drawn between included offenses and related offenses.

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