Is a failure to instruct on a lesser-included offense prejudicial where it strikes at the heart of the defense?

California, United States of America


The following excerpt is from People v. Vasquez, 241 Cal.Rptr.3d 882, 30 Cal.App.5th 786 (Cal. App. 2018):

The failure to instruct on a lesser-included offense is more likely to be prejudicial where it strikes at the heart of the defense. ( People v. Neidinger (2006) 40 Cal.4th 67, 79, 51 Cal.Rptr.3d 45, 146 P.3d 502 ; see People v. McDonald (1984) 37 Cal.3d 351, 376, 208 Cal.Rptr. 236, 690 P.2d 709 ["An error that impairs the jurys determination of an issue that is both critical and closely balanced will rarely be harmless."].)

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