Does a defense counsel have a duty to instruct on the lesser included offenses?

The fact that appellant's defense was misidentification does not remove the duty to instruct on these lesser offenses. (See People v. Wickersham (1982) 32 Cal.3d 307, 333, fn. 11, 185 Cal.Rptr. 436, 650 P.2d 311; People v. Saldana (1984) 157 Cal.App.3d 443, 456, 204 Cal.Rptr. 465.)

We note that if this judgment had not been reversed, an issue would have arisen as to whether defense counsel expressly waived the giving of instructions on lesser offenses as a tactical choice. "[C]ounsel must express a deliberate tactical purpose in objecting to a particular instruction before the failure to give that instruction will be deemed invited error.... [p] ... [T]he absence of a request is not equivalent to an express tactical objection." The cases require "explicit statements" regarding this tactical choice. (People v. Wickersham, supra, 32 Cal.3d at p. 333, 185 Cal.Rptr. 436, 650 P.2d 311.) In the present case, the only record on this point is a statement by the prosecutor that "defense counsel has requested that no lesser included offenses be given," which was assented to by defense counsel. To avoid error in any retrial of this case, a record should be made that any such decision by defense counsel is for an express tactical purpose.