Does a jury have to be instructed on the lesser included offense of second degree murder?

California, United States of America


The following excerpt is from People v. Horning, 102 P.3d 228, 22 Cal.Rptr.3d 305, 34 Cal.4th 871 (Cal. 2004):

Defendant contends the court erred in not instructing the jury on the lesser included offense of second degree murder. A court must generally instruct the jury on lesser included offenses whenever the evidence warrants the instructions, whether or not the parties want it to do so. (See People v. Barton (1995) 12 Cal.4th 186, 196-198, 47 Cal. Rptr.2d 569, 906 P.2d 531.) We need not decide whether the evidence warranted an instruction on second degree murder in this case because we find any error both invited and harmless.

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