Is a failure to instruct a defendant on a lesser included charge of battery reversible?

California, United States of America


The following excerpt is from People v. Mixon, B229727 (Cal. App. 2012):

Even if we were to assume that battery is a lesser included offense of robbery as alleged in the accusatory pleading, appellant does not show that he was prejudiced by the failure to give such an instruction. (People v. Breverman (1998) 19 Cal.4th 142, 178 [in noncapital case, failure to instruct on lesser included offense is reversible only if the defendant shows prejudice].) In analyzing prejudice, this court considers "not . . . what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Id. at p. 177.)

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