California, United States of America
The following excerpt is from People v. Alvarado, B261059 (Cal. App. 2016):
The standard of review for failure to instruct on a lesser included offense is de novo. (People v. Woods (2015) 241 Cal.App.4th 461, 475.) Under that standard, we consider the evidence in the light most favorable to the defendant. The question is not whether the evidence supports conviction of the greater crime; it is "whether, in assessing and weighing the evidence independently, the jury could have reasonably concluded that [the defendant] committed" the lesser crime but not the greater. (Ibid.)
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