What is the test for reversal of a jury verdict in a civil case where the court failed to instruct the jury on the lesser included misdemeanor charge of battery without injury?

California, United States of America


The following excerpt is from People v. McBreairty, D066161 (Cal. App. 2015):

Even if the court should have instructed on the lesser included misdemeanor offense of battery without injury, the error would have been harmless. " 'The erroneous failure to instruct on a lesser included offense generally is subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, [836-837]. Reversal is required only if it is reasonably probable the jury would have returned a

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different verdict absent the error or errors complained of.' " (People v. Prince (2007) 40 Cal.4th 1179, 1267.) Thus, a defendant must demonstrate it is "reasonably probable" the jury would have returned a different, more favorable verdict if the omitted lesser instruction had been given. (Ibid.) A " 'probability' " in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (People v. Soojian (2010) 190 Cal.App.4th 491, 519.) This review "focuses not on 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." (People v. Breverman, supra, 19 Cal.4th at p. 177.)

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