People v. Hall, 132 Cal. Rptr. 3d 803

Defendant Anthony Jerome Hall was convicted of second-degree murder of a child under one year old and of assault on a child under eight causing death (Pen. Code, §§ 187, subd. (a); 273ab).
In the published portion, the court held that the trial court did not err by not instructing the jury on uncharged lesser related offense of child abuse (Cal. No. 9.37) despite prosecution–defense agreement.
Defendant requested CALJIC No. 9.37 (child abuse) as a lesser related offense; the prosecutor agreed, but the court refused saying it no longer gives lesser related offenses.
California law does not guarantee such an instruction; it requires agreement by the parties and substantial evidence, and the trial court retains discretion.
The court explained that even if the failure to give the instruction were error, the error would be harmless under Watson because defense argued only that defendant did not strike the child and the evidence supported conviction.
The judgment was affirmed; the Supreme Court denied review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by refusing CALJIC 9.37 despite agreement	Hall	Birks permits agreement to give lesser related offense	No error
If error, whether it was harmless	Harmless under Watson	Instruction could have helped	Harmless error

People v. Birks, 19 Cal.4th 108 (Cal. 1998) (limits on unilateral entitlement to lesser related-offense instructions; importance of agreed-upon instructions)
People v. Kraft, 23 Cal.4th 978 (Cal. 2000) (no federal right to compel lesser-related-offense instructions even if supported by evidence)
People v. Jennings, 50 Cal.4th 616 (Cal. 2010) (recognizes absence of entitlement to such instructions absent agreement or statutory requirement)
People v. Geiger, 35 Cal.3d 510 (Cal. 1984) (earlier permissive view on lesser related offenses; later restricted)
People v. Birles, ? (?) (discussion of related-offense instruction concepts)