Does the doctrine of invited error bar a defendant from challenging on appeal the failure to instruct on a lesser included offense?

California, United States of America


The following excerpt is from People v. Romero, H044453 (Cal. App. 2018):

" '[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. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court's failure to give the instruction.' [Citation.]" (People v. Horning (2004) 34 Cal.4th 871, 905.) However, " '[t]he invited error doctrine will not preclude appellate review if the record fails to show counsel had a tactical reason for requesting or acquiescing in the instruction.' [Citation.]" (People v. Moore (2011) 51 Cal.4th 386, 410.)

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