California, United States of America
The following excerpt is from People v. Aviles, F071781 (Cal. App. 2018):
We recognize that conviction on the greater offense does not automatically render harmless the erroneous failure to instruct on a lesser, necessarily included offense. (See Breverman, supra, 19 Cal.4th at p. 178, fn. 25.) Thus, had Aviles been convicted only of second degree murder, her claim of prejudice might have more force. Instead, "[b]y finding [Aviles] guilty of first degree murder in the face of exhaustive instructions pertaining to the lesser included offenses of second degree murder and voluntary manslaughter, the jury reached the factual conclusion that [Aviles] acted with [express] malice aforethought, deliberation, and premeditation, and necessarily rejected" any claim she was guilty only of involuntary manslaughter. (People v. Barnett, supra, 17 Cal.4th at p. 1156.)36
The above passage should not be considered legal advice. Reliable answers to complex legal questions require comprehensive research memos. To learn more visit www.alexi.com.