Garcia

Defendant was tried before a jury on a charge of aggravated assault upon a police officer, a felony denounced by Penal Code section 245, subdivision (b). The jury found him guilty of the lesser offense of simple assault upon a peace officer, punishable as a felony under Penal Code section 241. He appeals from the conviction.

Defendant assigns error in the trial court’s rejection of his request to instruct the jury that it could find defendant guilty of the lesser offense of simple assault, a misdemeanor defined by Penal Code section 240.

A defendant is entitled to jury instructions on his theory of the case as disclosed by the evidence, no matter how weak; the fact that the evidence may not be of a character to inspire belief does not justify refusal of an instruction based thereon; however incredible a defendant’s testimony, he is entitled to an instruction based upon the hypothesis that it is entirely true; it is prejudicial error to withdraw from the jury consideration of such evidence. (People v. Miller, 57 Cal.2d 821, 829 [ 22 Cal.Rptr. 465 , 372 P.2d 297 ]; People v. Carmen, 36 Cal.2d 768, 773 [ 228 P.2d 281 ].) As indicated by People v. Morrison, 228 Cal.App.2d 707, 712 […