When there is no substantial evidence to warrant a self-defense instruction, does McNeely's contention that counsel's failure to request the instruction constitute ineffective assistance of counsel?

California, United States of America


The following excerpt is from People v. Togiola, B281918 (Cal. App. 2018):

7. Because there was no substantial evidence to warrant the instruction, we necessarily reject McNeely's alternative contention his counsel's failure to request a self-defense instruction amounted to ineffective assistance of counsel. (See People v. Gray (2005) 37 Cal.4th 168, 219-220 [because "there was no substantial evidence worthy of the jury's consideration that the crime was something less than robbery[,] . . . [t]he trial court did not err in failing to instruct the jury on the lesser included offense of theft, nor was counsel ineffective for failing to request a theft instruction"].)

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