California, United States of America
The following excerpt is from People v. Velasquez, D069290 (Cal. App. 2016):
theories of a lesser included offense which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 155, 162 (Breverman).) This sua sponte responsibility arises regardless of the wishes of trial counsel or the parties, whenever substantial evidence supports the lesser charge. (Id. at pp. 158, 162.) In this context, substantial evidence means " ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (Id. at p. 162.) In determining the substantiality of evidence, a trial court is to consider only the "legal sufficiency" of the evidence, not its weight or the credibility of the witnesses who presented the evidence. (Id. at p. 177.)
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