SHELMIRE

In People v. Sedeno (1974) 10 Cal.3d 703 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ] (Sedeno), our Supreme Court said, “[T]he duty to give instructions ... on particular defenses and their relevance to the charged offense arises only if it appears that a defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” (Id. at p. 716, italics added.)

The first prong of this disjunctive test suggests that a defendant is entitled to an instruction on a defense on which defendant is “relying” even if no substantial evidence supports the instruction. In this case, we conclude that more recent Supreme Court authority has overruled the first prong of the Sedeño test. Put differently, we conclude that a defendant is entitled to an instruction on a defense only where substantial evidence supports the defense.

In a joint trial with three separate juries, defendant Eric Linell Shelmire was tried along with codefendants Andre Graver and Gerald Jones, Jr., for first degree murder (Pen. Code, § 187, subd. (a); undesignated section references are to the Penal Code), with the…