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Name: People v. Wyatt
Case #: S189786
Court: CA Supreme Court
District CalSup
Opinion Date: 11/05/2012

Trial court did not err in failing to instruct on simple assault as a lesser included offense of assault on a child resulting in death. Appellant was convicted of involuntary manslaughter (Pen. Code, § 192, subd. (a)) and assault on a child causing death (Pen. Code, § 273ab) based on fatal injuries he inflicted upon his 14-month-old son. In Wyatt I (People v. Wyatt (2010) 48 Cal.4th 776), the Supreme Court overturned the Court of Appeal’s reversal of appellant’s section 273ab conviction based on insufficiency of the evidence. On remand, the Court of Appeal again reversed, this time because no instruction was given on simple assault as a lesser included offense of section 273ab. Held: Reversed. A trial court’s duty to instruct on a lesser included offense does not arise “where there is no evidence that the offense was less than that charged.” A jury could not convict appellant of simple assault based on his declared intent to jump on a bed next to the child unless it found that a reasonable person would know that this act would directly and proximately result in the application of force to the child. Given the vast weight and size differences between appellant and the child and the manner in which appellant jumped on top of his son, no reasonable person would conclude this act would likely result in only minor injuries.