What is the standard of review applied to a trial court's failure to instruct the jury on an assertedly lesser included offense?

California, United States of America


The following excerpt is from People v. Bautista, E050299, Super.Ct.No. SWF026881 (Cal. App. 2011):

We apply a de novo standard of review to the trial court's failure to instruct on an assertedly lesser included offense. (People v. Licas (2007) 41 Cal.4th 362, 366.)

Section 288 prohibits lewd and lascivious acts with a child under 14 years of age. Section 288, subdivision (a), is a lesser or necessarily included offense of the lewd act prohibited by subdivision (b). (People v. Ward (1986) 188 Cal.App.3d 459, 472.) Subdivision (b) includes the additional element of "force, violence, duress, menace, or fear of immediate and unlawful bodily injury." ( 288, subds. (a) and (b)(1).) However, even though a violation of section 288, subdivision (a), is a lesser included offense of the

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charged violation of section 288, subdivision (b), in count 4, the trial court still was not obligated to instruct on this lesser offense. "[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162.) "A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] 'there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser. [Citations.]" (People v. Memro (1995) 11 Cal.4th 786, 871.)

Here, as we observed above, substantial evidence demonstrated that defendant, a father figure to seven-year-old Doe, forced her to engage in the molestations by grabbing her hands, positioning them, and having her move them up and down on his penis. Defendant plainly constrained Doe. No evidence to the contrary was placed before the jury, and no reasonable jury could have concluded this conduct was insufficient to establish force or duress. As no evidence was presented to the jury that could have absolved defendant of the greater offense but not the lesser offense, the trial court was not obligated to instruct the jury on the lesser offense of nonforcible lewd act on a child under 14. (People v. Memro, supra, 11 Cal.4th at p. 871.)

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The judgment is affirmed.

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