In what circumstances will a court accept an offer to withdraw an objection to a motion to dismiss a charge of aggravated assault?

When defense counsel objected to the prosecutor's pretrial motion to dismiss an alternatively charged count of aggravated assault, she offered to withdraw her objection provided the court instruct the jury that aggravated assault is a lesser included offense of attempted murder. She recognized "it's not a lesser included unfortunately." The trial court never entertained her "offer," and the only lesser included offense instruction given was for attempted voluntary manslaughter. We review independently whether the trial court erred by failing to instruct on a purported lesser included offense. (People v. Souza (2012) 54 Cal.4th 90, 113.)

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