Does the error of instructing a jury to find a plaintiff guilty only of second degree murder render harmless to their claim of prejudice?

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

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