Can a defendant seek to overturn a conviction for second-degree murder by appealing against the finding that the trial court failed to instruct on the charge of second degree murder?

California, United States of America


The following excerpt is from People v. Smith, 233 Cal.Rptr.3d 1, 4 Cal.5th 1134, 417 P.3d 662 (Cal. 2018):

of a lesser included offense which find substantial support in the evidence." ( People v. Breverman (1998) 19 Cal.4th 142, 162, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) But a court must instruct on such theories only when the record contains " "substantial evidence" from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense. " ( People v. Whalen (2013) 56 Cal.4th 1, 68, 152 Cal.Rptr.3d 673, 294 P.3d 915 ( Whalen ).)

Here, defendants claim that the trial court should have instructed on second degree murder fails at the outset because defendant himself asked the court not to give the instruction at trial. "[A] defendant may not invoke a trial courts failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence." ( People v. Barton (1995) 12 Cal.4th 186, 198, 47 Cal.Rptr.2d 569, 906 P.2d 531.) Defense counsel in this case asked the court not to instruct on second degree murder; he said he had discussed the matter with defendant, and defendant personally joined in the request on the record. Defendant thereby invited the alleged error of which he now complains.

Other Questions


In what circumstances will the Court reverse the conviction of defendant in the second-degree murder trial of a man convicted of the crime of murder for making false statements about the crime scene? (California, United States of America)
Can a defendant who requests instruction on a lesser-related charge of assault that includes the elements of implied malice murder be able to complain about the second degree murder instruction on appeal? (California, United States of America)
Can a defendant bring an appeal to the Court of Appeal against a finding that the trial court wrongfully convicted him of assault? (California, United States of America)
What are the findings of the California Superior Court of Appeal on the grounds that the instructions given by defendant in his conspiracy to commit felony murder were not tantamount to felony murder instructions? (California, United States of America)
Does a jury's finding on a felony-murder special-circumstance allegation based on erroneous instruction that a jury would not have convicted appellant of second degree murder if the jury had been given the same instruction? (California, United States of America)
Can a defendant who has been convicted of a second-degree murder wait until the judgment of the Superior Court of Appeal has been affirmed before filing a petition for certiorari in which they raise federal questions relating to their trial on guilt? (California, United States of America)
Can a jury convict a defendant of second degree murder under the second degree felony-murder rule? (California, United States of America)
Can a jury convict a defendant of second degree murder under the second degree felony-murder rule? (California, United States of America)
Does the fact that a defendant in the first-degree murder case was convicted of second degree murder have any bearing in determining the outcome of the trial? (California, United States of America)
What is the test for a jury to convict a defendant of second degree murder (Pen. Code, 1. 187) of second-degree murder (e.g. shod feet)? (California, United States of America)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.