What are the consequences of a court's failure to instruct sua sponte on a lesser included offense in a noncapital case?

California, United States of America


The following excerpt is from People v. Carrasco, G048592 (Cal. App. 2014):

"[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. . . ." (People v. Breverman (1998) 19 Cal.4th 142, 162.) The failure to instruct sua sponte on a lesser included offense in a noncapital case is not subject to reversal unless an examination of the entire record establishes a reasonable probability the error affected the outcome. (Id. at p. 165; People v. Watson (1956) 46 Cal.2d 818, 836.)

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