How has the Attorney General argued that defendant forfeited his argument by expressly concurring with the court that a lesser included offense was not required under the circumstances?

Preliminarily, we address the Attorney General's contention that defendant forfeited his argument by expressly concurring with the court that a lesser included offense instruction was not required under the circumstances. Although "'"'[t]he obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given[,]'"'" there are circumstances under which a defendant may be deemed to have waived, under the doctrine of invited error, the ability to challenge the lack of such an instruction. (People v. Souza (2012) 54 Cal.4th 90, 114.) There are no such circumstances here. The record does not indicate defendant's counsel "'"intentionally caused the trial court to err[,]"'" and there is no indication his counsel "expresse[d] a deliberate tactical purpose" for agreeing with the court's determination. (Ibid.)

"We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1218.) A trial court has a duty to instruct the jury, sua sponte, on all theories of a lesser included offense "whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (People v. Breverman (1998) 19 Cal.4th 142, 162.) "'Substantial evidence' in this context is '"evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]"' that the lesser offense, but not the greater, was committed." (Ibid.) "[T]he sua sponte duty . . . arises even against the defendant's wishes, and regardless of the trial theories or tactics the defendant has actually pursued." (Ibid.)

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The difference between the crime charged and simple assault is the latter is committed without use of a deadly weapon. (People v. McGee (1993) 15 Cal.App.4th 107, 116.) Thus, the question before us is whether there is evidence in the record from which a reasonable jury could conclude the assault by defendant against Vargas was committed without use of a deadly weapon. (People v. Breverman, supra, 19 Cal.4th at 162.) There is not.