Wright

The single question 1 we consider is this: when a defendant requests a misdemeanor assault instruction, defining a lesser related offense (People v. Geiger (1984) 35 Cal.3d 510 [ 199 Cal.Rptr. 45 , 674 P.2d 1303 , 50 A.L.R.4th 1055 ]), and the prosecutor, over the defendant’s objection, requests a felony assault instruction, also defining a *389 related offense, may the trial court properly give both instructions? Our answer is yes.

Procedural & Factual Background

Appellant was charged with committing a robbery (Pen. Code, § 211) 2 by using a knife (§ 12022, subd. (b)) and with having suffered nine felony convictions.

A jury acquitted him of robbery but convicted him of assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The court found four of the alleged felony priors to be true, denied probation, and sentenced appellant to state prison for three years, the midterm.

There being no insufficiency-of-evidence claim, we briefly summarize the evidence.

On Saturday night January 3, 1987, 21-year-old Allen T. (victim) went to a topless-bottomless Gardena bar, had a few beers, and then walked to the motel across…

I respectfully dissent.

People v. Toro makes it abundantly clear the trial court cannot give a lesser related instruction as to any crime to which the defendant objects. As Justice Kaufman wrote for the majority: “[T]he due process notice requirement precludes conviction for a lesser related offense when the defendant has not consented to its consideration by the trier of fact, but fundamental fairness also requires that the trier of fact be permitted to consider the lesser related offense when the defendant requests it. Thus the law recognizes that instructions on lesser related offenses may be highly beneficial or prejudicial to the defendant, depending on the defendant’s trial preparation, the nature of the defense presented, and other matters of trial strategy. Because the defendant, assisted by counsel, is the only person who can assess the impact of lesser related offense instructions in a given case, the decision to permit or preclude consideration of the lesser related offense is a right accorded to the defendant.” {People v. Toro (1989) 47 Cal.3d 966, 975 [ 254 Cal.Rptr. 811 , 766 P.2d 577 ], italics added.)

The majority opinion in the instant case permits the very…