California, United States of America
The following excerpt is from People v. Comphel, C064487 (Cal. App. 2014):
As our high court has observed, " ' "[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." ' [Citation.] [] Nevertheless, the claim may be waived under the doctrine of invited error if trial counsel both ' "intentionally caused the trial court to err" ' and clearly did so for tactical reasons. [Citation.] Invited error will be found, however, only if counsel expresses a deliberate tactical purpose in resisting or acceding to the complained-of instruction. [Citations.]" (People v. Souza (2012) 54 Cal.4th 90, 114.) That is exactly what occurred here. Any error was invited.
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