What is the test for instructing a jury on a lesser included charge of assault with a deadly weapon?
California, United States of America
The following excerpt is from People v. Johnson, F066203 (Cal. App. 2014):
Even absent a request, the trial court must instruct on general principles of the law, including lesser included offenses. (People v. Breverman (1998) 19 Cal.4th 142, 154.) However, such instructions are required only "'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.'" (Ibid.) The evidence must be substantial in that a reasonable jury could have concluded that the "lesser offense, but not the greater, was committed." (Id. at p. 162.) Failure to instruct sua
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sponte on a lesser included offense is reviewed independently. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
Aggravated assault ( 245, subd. (a)(1)) prohibits "assault upon the person of another with a deadly weapon or instrument other than a firearm." Simple assault ( 240) is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." It is undisputed that simple assault is a lesser included offense of assault with a deadly weapon. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747; 245, subd. (a)(1).)
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