People v. Blythe

ROTH, J.

The evidence in this ease is ample to sustain beyond a reasonable doubt a finding of violation of section 23101 of the California Vehicle Code (felony drunk driving).

[349]

The jury did bring in a verdict of “guilty” and from the judgment entered thereon this appeal is taken.

Prior to the submission of the ease to the jury, defendant requested, in which request the prosecution joined, an instruction advising the jury that it could find defendant guilty of a lesser offense, to wit: a violation of section 23102 of the same code (misdemeanor drunk driving), which was necessarily included within the offense charged. The court refused the instruction. Defendant asserts such refusal is reversible error. We agree.

Penal Code section 1159 provides: “The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.” There is no doubt that it is the court’s duty to instruct on any included offense on which there is evidence.

(People

v.

Mora,

139 Cal.App.2d 266, 274 [293 P.2d 522].) Failure to give such an instruction is prejudicial error.

(People

v.

Brown,

131 Cal.App.2d 643, 659 [281 P.2d 319].)

We understand that jury instructions should be responsive to the issues and that generally the issues in a criminal case are determined by the evidence.

(People

v.

Carmen,

36 Cal.2d 768, 773 [228 P.2d 281].) And too “. . . it is proper to refuse an instruction as to a lesser offense or degree included in the offense charged where the evidence warrants a conviction if at all,