Does a defendant have a sua sponte duty to instruct on lesser included offenses such as second degree murder and voluntary manslaughter?

Defendant now contends that the trial court had a sua sponte duty to instruct on lesser included offensesspecifically, second degree murder and voluntary manslaughterdespite his counsel's agreement with the court and the prosecutor that the instructions should not be given. This was so, he claims, because the record contained substantial evidence from which the jury could reasonably conclude that defendant was guilty only of those lesser offenses. We independently review his claim of instructional error (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411), and we conclude his claim lacks merit.⁶

The trial court has a duty to instruct on lesser included offenses "whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 162.) This is so "notwithstanding a defendant's objection that such instruction is inconsistent with his or her theory of the case . . . ." (People v. Bradford (1997) 15 Cal.4th 1229, 1345.)

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