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Name: People v. Hall
Case #: B224359
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 11/07/2011

Unless required by statute or case law to give a jury instruction, the court has the ultimate decision as to an instruction on an uncharged lesser related offense. Appellant was charged with second degree murder of a child over a year old and assault of the child. With the agreement of the prosecutor, he requested the jury be instructed with CALJIC No. 9.37, concerning child abuse, as a lesser related offense, but the court denied the request, stating, “We don’t give lesser related anymore.” The appellate court found no error, or if there was, it was harmless. Appellant argued that the court was required to give the lesser related instruction because the prosecution agreed to it. However, unless the trial court is required by statue or case law to give a jury instruction, it does not have to do so. The fact that the prosecutor agrees to a lesser related instruction, alone, does not compel the court to give it. And a defendant has no federal constitutional right to compel the giving of lesser-related-offense instructions.