Is erroneous failure to instruct on a lesser included offense subject to harmless error review?

California, United States of America


The following excerpt is from People v. Garrett, C083964 (Cal. App. 2018):

The erroneous failure to instruct on a lesser included offense is "subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, 836-837."2 (Rogers, supra, 39 Cal.4th at pp. 867-868.) "Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of." (Id. at p. 868; Breverman, supra, 19 Cal.4th at p. 165 ["misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome"].)

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