Ninth Circuit Clarifies that An Intra-Circuit Split Regarding the Standard of Review for Instructions on Lesser-Included Offenses Does Not Exist

Per U.S. v. Arnt, --- F.3d ----, 2007 WL 177829 (9th Jan. 25, 2007):

A defendant is entitled to an instruction on a lesser-included offense if the law and evidence satisfy a two-part test: 1) “the elements of the lesser offense are a subset of the elements of the charged offense,” Schmuck v. United States, 489 U.S. 705, 716 (1989); and 2) “the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit [her] of the greater,” Keeble v. United States, 412 U.S. 205, 208 (1973). We review the first step de novo and the second step for abuse of discretion. United States v. Naghani, 361 F.3d 1255, 1262 (9th Cir.2004).

There is an apparent split in Ninth Circuit authority regarding the standard of review for instructions on lesser-included offenses. Compare id. with United States v. Pierre, 254 F.3d 872, 875 (9th Cir.2001) (reviewing de novo). We write to make clear that there is no actual split. The first step in determining whether a lesser-included offense instruction should be given asks us to consider a legal question: Is the offense for which the instruction is sought a lesser-included offense of the charged offense? See Schmuck, 489 U.S. at 716. Therefore, the first step is subject to de novo review. The second step is a factual inquiry: Does the record contain evidence that would support conviction of the lesser offense? See Keeble, 412 U.S. at 208. The trial judge obviously is better situated than we are to make this factual determination; therefore, we review the second step for abuse of discretion. See United States v. Wagner, 834 F.2d 1474, 1487 (9th Cir.1987).