Zapata

In the published portion of this opinion we decide that when a jury is unable to unanimously agree on defendant’s guilt or innocence of a crime within the accusatory pleading, and the prosecution is willing to forego its right to a verdict or mistrial on that charge, the court may receive a verdict on a lesser included offense to that crime. In the unpublished portion of this opinion we conclude that appellant suffered no prejudice with respect to denial of his requested jury instructions, and that the record on appeal is sufficient to afford a proper review of the issues presented. As a result, we affirm the appellant’s conviction of assault with a deadly weapon.

Factual and Procedural Summary

During the evening of April 21, 1990, appellant Pedro Zapata attended a reception for his niece’s 15th birthday at the Cofradía Hall in South Gate. Joseph Rodriguez and Lorenzo Fierose and their mother, Rosie Gil, were attending a different reception at that hall on the same evening. Rodriguez and Fierose are half-brothers.

An altercation erupted in the area of the men’s rest room at the hall shortly before midnight. The two men who began the altercation were ejected from the…