Does the invited error doctrine apply to defense counsel's "conscious, deliberate choice" to forego an instruction in CALCRIM No. 3450?

California, United States of America


The following excerpt is from People v. Suazo, D060885 (Cal. App. 2014):

commission of error.' " (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3, italics omitted.) " 'When a defense attorney makes a "conscious, deliberate tactical choice" to [request or] forego a particular instruction, the invited error doctrine bars an argument on appeal that the instruction was [given or] omitted in error.' " (People v. McKinnon (2011) 52 Cal.4th 610, 675.)

Here, defense counsel made a deliberate, tactical decision, telling the court it did not want instruction with either of the bracketed paragraphs in CALCRIM No. 3450 because including those paragraphs would encourage the jury to hold Suazo responsible for exacerbating his severe psychosis. Suazo is therefore precluded from challenging the correctness of the instruction on appeal. (Accord, People v. Hardy (1992) 2 Cal.4th 86, 152.)

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