What is the standard of review for a court's failure to instruct on lesser included offenses of battery or aggravated battery?

California, United States of America


The following excerpt is from People v. Anderson, B279986 (Cal. App. 2017):

Even assuming for the sake of argument that battery or aggravated battery were lesser included offenses of torture and that there was sufficient evidence to support an instruction on one or both of those offenses, there is no reasonable probability that defendant would have obtained a more favorable outcome if the instructions had been given and so any error in failing to instruct on those offenses was harmless. (See People v. Breverman (1998) 19 Cal.4th 142, 164-178 [People v. Watson (1956) 46 Cal.2d 818 standard of review applies to court's failure to instruct on lesser included offenses].)

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