Does the invited error doctrine apply when a defense attorney makes a deliberate tactical choice not to request or forego a jury instruction?

California, United States of America


The following excerpt is from People v. Becerra, B285885 (Cal. App. 2018):

"'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.' [Citations.]" (People v. McKinnon (2011) 52 Cal.4th 610, 675 (McKinnon).) The record must show more than "'mere unconsidered acquiescence.'" (People v. Horning (2004) 34 Cal.4th 871, 905 (Horning).) However, when trial counsel "expresse[s] no deliberate tactical purpose in failing to request [a jury instruction], the invited error doctrine does not apply." (McKinnon, supra, at p. 675 [no

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