How have courts interpreted the doctrine of 'of the greater offense but not of the lesser included offense'?

California, United States of America


The following excerpt is from People v. Pineda, D067731 (Cal. App. 2017):

of the greater offense but not of the lesser.' " (People v. Rogers (2006) 39 Cal.4th 826, 866.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required 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 is evidence that could lead a jury composed of reasonable persons to find the defendant committed the lesser offense, but not the greater. (Ibid.) "We review the trial court's failure to instruct on a lesser included offense de novo [citations] considering the evidence in the light most favorable to the defendant." (People v. Brothers (2015) 236 Cal.App.4th 24, 30.)

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