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People v. Barton12/18/1995
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Defendant asks us to overrule Sedeno, supra, 10 Cal. 3d 703. The trial court's duty to instruct on lesser included offenses, defendant contends, should be no greater than its obligation to instruct on defenses. Thus, he asserts, a trial court should not instruct on a lesser included offense when, as here, the evidence supporting the lesser included offense is inconsistent with the defendant's theory of the case and the defendant, for tactical reasons, asks the court not to give the instruction. As we shall explain, defendant's contention is not persuasive.
"Our courts are not gambling halls but forums for the discovery of truth." ( People v. St. Martin (1970) 1 Cal. 3d 524, 533, 83 Cal. Rptr. 166, 463 P.2d 390.) Truth may lie neither with the defendant's protestations of innocence nor with the prosecution's assertion that the defendant is guilty of the offense charged, but at a point between these two extremes: the evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged. A trial court's failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jury's truth-ascertainment function. Consequently, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. To permit this would force the jury to make an "all or nothing" choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence.
Defendant's proposed rule permitting the defense, upon request, to bar the trial court from instructing the jury on lesser included offenses supported by the evidence would, as just stated, not only impair the jury's search for truth, but would also be unfair to the prosecution. Sometimes the prosecution's evidence that a defendant has committed the crime charged may be relatively weak, whereas the evidence of a lesser included offense may be much stronger. In that case, a prosecutor need not, and generally does not, separately charge a defendant with the lesser included offense. ( § 1159; Stone v. Superior Court (1982) 31 Cal. 3d 503, 517, 183 Cal. Rptr. 647, 646 P.2d 809.) If instructions on a lesser included offense could be barred at the defendant's request, the prosecutor would be denied the opportunity to argue to the jury that the defendant, even if not guilty of the crime charged, is at least guilty of the lesser included offense.
When, however, the question is whether the trial court must, on its own initiative, instruct the jury on defenses not asserted by the defendant, different considerations arise. Failure to so instruct will not deprive the jury of the opportunity to consider the full range of criminal offenses established by the evidence. Nor is the prosecution denied the opportunity to seek conviction on all offenses included within the crime charged. Moreover, to require trial courts to ferret out all defenses that might possibly be shown by the evidence, even when inconsistent with the defendant's theory at trial, would not only place an undue burden on the trial courts but would also create a potential of prejudice to the defendant. As we said in Sedeno, supra, 10 Cal. 3d at pages 716-717: "'Appellate insistence upon sua sponte instructions which are inconsistent with defense trial theory or not clearly demanded by the evidenc
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