Huynh

I. Introduction

Defendant, Quan Le Huynh, appeals from his convictions for second degree murder (Pen. Code, § 187) 1 and shooting at an inhabited automobile. (§ 246.) Defendant contends that evidence was erroneously presented to the jury and there was instructional error. In the published portion of this opinion, we address the question of whether the trial court has a sua sponte duty to instruct on a misdemeanor target offense, not identified by the prosecutor, which would support an involuntary manslaughter verdict in a case where the deputy district attorney relies on an implied malice crime second degree murder natural and probable consequences aiding and abetting theory. Because, as will be noted, the Supreme Court held in People v. Prettyman (1996) 14 Cal.4th 248, 269 [ 58 Cal.Rptr.2d 827 , 926 P.2d 1013 ], there is no sua sponte duty to instruct on a target offense not identified by a prosecutor, we reject defendant’s contention to the contrary. We affirm the judgment of conviction and sentence. But we order the abstract of judgment corrected to reflect that defendant has been convicted of second degree murder.

II. Procedural History

Defendant was originally…

I respectfully dissent.

Sua Sponte Instruction

An authority on California criminal law states, “Failure to instruct on an essential element of an offense charged is error ‘whenever there is any evidence deserving of any consideration from which the jury could have found in favor of the defendant on the omitted element.’ The error denies the defendant’s right to have the jury determine every material issue presented by the evidence, regardless of overwhelming evidence of guilt. [Citation.]” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 609, p. 869.)

Here, the prosecutor argued a target offense that was something other than shooting at an occupied car—namely, planning to throw an object at a car and to fight—which target offense could have been conspiracy to commit a simple assault or a battery, possible misdemeanors. People v. Prettyman (1996) 14 Cal.4th 248 [ 58 Cal.Rptr.2d 827 , 926 P.2d 1013 ] (Prettyman) and People v. Baker (1999) 74 Cal.App.4th 243 [ 87 Cal.Rptr.2d 803 ] (Baker) compel the trial court to instruct the jury on such target offenses because there was sufficient evidence to support that instruction. Because the jury could have found Quan…

Certified for Partial Publication. [*]

Defendant, Quan Le Huynh, appeals from his convictions for second degree murder (Pen.Code, § 187) [1] and shooting at an inhabited automobile. (§ 246.) Defendant contends that evidence was erroneously presented to the jury and there was instructional error. In the published portion of this opinion, we address the question of whether the trial court has a sua sponte duty to instruct on a misdemeanor target offense, not identified by the prosecutor, which would support an involuntary manslaughter verdict in a case where the deputy district attorney relies on an implied malice crime second degree murder natural and probable consequences aiding and abetting theory. Because, as will be noted, the Supreme Court held in People v. Prettyman (1996) 14 Cal.4th 248, 269 , 58 Cal.Rptr.2d 827 , 926 P.2d 1013 , there is no sua sponte duty to instruct on a target offense not identified by a prosecutor, we reject defendant's contention to the contrary. We affirm the judgment of conviction and sentence. But we order the abstract of judgment corrected to reflect that defendant has been convicted of second degree murder.

Defendant was originally…