Does the trial court have a sua sponte duty to instruct the jury on the defense of consent?

California, United States of America


The following excerpt is from People v. Harvey, D054498 (Cal. App. 9/24/2009), D054498. (Cal. App. 2009):

The trial court properly instructed the jury with CALCRIM No. 1203 addressing the elements of kidnapping for robbery, including that requirement that the victim "did not consent to the movement." Notably, Harvey does not argue on appeal that the trial court refused defense counsel's request for an instruction on the defense of consent or that the trial court had a sua sponte duty to instruct on this defense. (People v. Felix (2001) 92 Cal.App.4th 905, 911 [trial court has a sua sponte duty to instruct on the defense of consent if there is sufficient evidence to support it].) Because the trial court did not instruct on consent, there was no need for the prosecution to ask for an instruction on withdrawal of consent.

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