California, United States of America
The following excerpt is from People v. Morales, A141875 (Cal. App. 2016):
2. We reject respondent's contention that appellant forfeited his claim because he did not request that the court "amplify" its "correct" instruction that "if the prosecution did not prove that the murder was first degree . . . , it was second degree murder." The case respondent cites, People v. Lee (2011) 51 Cal.4th 620, 638, did not involve a failure to instruct on the elements of an offense. Although the trial court did not have a sua sponte duty to amplify or clarify otherwise proper instructions, the court did have a sua sponte duty to provide complete instructions on " 'all theories of a lesser included offense which find substantial support in the evidence.' " (Rogers, supra, 39 Cal.4th at pp. 866-867.) We assume for purposes of the present decision that there was sufficient evidence to require the court to instruct on the implied and express malice theories of second degree murder.
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