People v. Galvan CA4/1

DISCUSSION

A. Instruction on Lesser-Included Offense

Galvan argues the trial court had a sua sponte obligation to instruct the jury on statutory rape as a lesser-included offense of engaging in sexual intercourse with a child 10 years of age or younger because there was substantial evidence that Doe was 11 at the time of the rape. “ ‘ “[A] trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present.” ’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1215.) “ ‘ “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a

3 reasonable jury could find persuasive.” ’ ” (Ibid.) The reviewing court applies the independent judgment standard of review to the trial court’s failure to instruct on a lesser included offense. (People v. Waidla (2000) 22 Cal.4th 690, 739.) Here, the relevant question is whether there was evidence from which a reasonable juror could conclude that Doe was 11 years old rather than 10 when the act of sexual intercourse occurred. Based on this standard, the People…