Does a defendant have an "unilateral entitlement" to instruct the jury on assault with a firearm as a lesser related to the charge of attempted murder?

Trial courts have a duty to instruct, sua sponte, on all lesser included offenses which are supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) They are not, however, required to instruct on lesser related offenses. The law could be no more clear: a criminal defendant does not have a "unilateral entitlement to instructions on lesser offenses which are not necessarily included in the charge." (People v. Birks (1998) 19 Cal.4th 108, 136.)

Assault with a firearm is not a lesser included offense of attempted murder, only a lesser related offense. (People v. Nelson (2011) 51 Cal.4th 198, 215.) The court therefore had no duty to instruct the jury on assault with a firearm as a lesser related offense of attempted murder.

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