People v. Barton12/18/1995
e would hamper defense attorneys and put trial Judges under pressure to glean legal theories and winnow the evidence for remotely tenable and sophistical instructions.'"
As set forth above, sound policy considerations underlie the distinction that Sedeno, supra, 10 Cal. 3d 703, drew between a trial court's relatively broad duty to instruct on lesser included offenses and its less expansive duty to instruct on defenses. Nevertheless, defendant insists that Sedeno was undermined by this court's recent decision in People v. Saille (1991) 54 Cal. 3d 1103, 820 P.2d 588.
In Saille, the defendant shot and killed a patron in a bar. The evidence showed that at the time of the killing the defendant was intoxicated, having a blood-alcohol level of .19 percent. The jury, which was instructed on both first and second degree murder, found that the murder was a deliberate, premeditated killing, and thus was murder of the first degree. On appeal, the defendant argued that the trial court should, on its own initiative, have instructed the jury to consider defendant's intoxication in determining whether he had premeditated and deliberated before the killing. We disagreed, holding that such an instruction would be a "pinpoint instruction" relating specific facts to the elements of the offense, and that the trial court need not give such instructions unless requested by a party. ( People v. Saille, supra, 54 Cal. 3d at p. 1120.)
Contrary to defendant's assertion, there is no conflict between Saille and Sedeno, supra, 10 Cal. 3d 703. As just noted, Saille concerned "pinpoint instructions" relating particular facts to the elements of the offense charged. It did not discuss when a trial court must, on its own initiative, instruct on either lesser included offenses or on defenses; indeed, Saille specifically noted that intoxication is not a "defense." ( People v. Saille, supra, 54 Cal. 3d at pp. 1118-1119.) Saille thus sheds no light on the issue here: the circumstances under which a trial court must instruct the jury on lesser included offenses and on defenses.
Nor is there merit to defendant's argument that Sedeno, supra, 10 Cal. 3d 703, cannot be reconciled with the holding in a number of decisions that a defendant may not invoke a trial court's failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. ( People v. Hardy (1992) 2 Cal. 4th 86, 184, 825 P.2d 781; People v. Duncan (1991) 53 Cal. 3d 955, 969, 281 Cal. Rptr. 273, 810 P.2d 131; People v. Cooper (1991) 53 Cal. 3d 771, 827-831, 281 Cal. Rptr. 90, 809 P.2d 865; People v. Graham (1969) 71 Cal. 2d 303, 317-319, 78 Cal. Rptr. 217, 455 P.2d 153; People v. Scobie (1973) 36 Cal. App. 3d 97, 101, 111 Cal. Rptr. 600; see also People v. Gallego (1990) 52 Cal. 3d 115, 182-183, 276 Cal. Rptr. 679, 802 P.2d 169.) In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court's failure to give the instruction.
The doctrine of invited error does not, however, vindicate the decision of a trial court to grant a defendant's request not to give an
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