People v. Naumov CA2/6

DISCUSSION

Instructional error Naumov contends his conviction for assault with a deadly weapon must be reversed because the trial court did not instruct the jury with CALCRIM No. 3517. We disagree. We review Naumov’s claim of instructional error de novo. (People v. Wilson (2021) 11 Cal.5th 259, 295 (Wilson).) CALCRIM No. 3517 advises jurors that they may consider the greater and lesser offenses in any order, but they cannot find

3 the defendant guilty of the lesser offense unless they have found the defendant not guilty of the greater offense. A trial court has a sua sponte duty to give “ ‘ “ ‘instructions on lesser included offenses 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. [Citations.]’ ” ’ ’’ (Wilson, supra, 11 Cal.5th at p. 295.) A court must instruct on lesser included offenses when substantial evidence supports them. (People v. Breverman (1998) 19 Cal.4th 142, 177, disapproved on another ground by People v. Schuller (2023) 15 Cal.5th 237, 260, fn. 7.) Our Supreme Court has reaffirmed the “acquittal-first rule, requiring…