What is the test for instructing a jury to convict a defendant of a lesser included charge of murder in the first degree?
MultiRegion, United States of America
The following excerpt is from Catanio v. Myers, 69 F.3d 543 (9th Cir. 1995):
"A trial court should give an instruction on a lesser included offense if the jury could rationally convict the defendant on the lesser included charge and acquit him of the greater." United States v. Espinosa, 827 F.2d 604, 615 (9th Cir.1987), cert. denied, 485 U.S. 968 (1988). Under California law, any murder that is committed in the perpetration of arson is murder in the first degree. Cal.Penal Code Sec. 189.
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