Filed 4/29/15 P. v. Shabazz CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B259714

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA047906)
         v.

JOSHUA SHABAZZ,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County.
Henry J. Hall, Judge. Affirmed.
                                                         ______
         John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.
                                                         ______
       In 1996, a jury convicted Joshua Shabazz of second degree murder with personal
use of a firearm. Shabazz appealed, and we affirmed the judgment of conviction.
(People v. Shabazz (Apr. 29, 1997, B101604 [nonpub. opn.].) In August 2014, Shabazz
filed a motion to vacate and set aside the judgment of conviction on the ground that,
because the information had charged him with first degree murder, the jury could not
lawfully convict him of second degree murder. The trial court denied his motion, finding
the motion untimely and his argument “legally incorrect.” Shabazz timely appealed.
       We appointed counsel to represent Shabazz in the matter. After examining the
record, counsel filed a Wende brief raising no issues on appeal and requesting that we
independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) On January
22, 2015, we sent a letter to Shabazz and to counsel. In the letter, we directed counsel to
immediately send the record on this appeal and a copy of the Wende brief to Shabazz and
informed Shabazz that he had 30 days to submit by letter or brief any ground of appeal,
contention or argument he wished us to consider. Shabazz filed a letter brief on
February 3 and a supplemental letter brief on February 20.
       According to Shabazz in both his letter brief and supplemental letter brief, the trial
court erred by denying his motion to vacate because his motion was timely and the jury
should not have been permitted to return a verdict of guilty of second degree murder
when he had been charged with first degree murder. Even if Shabazz’s motion could be
considered timely, his argument lacks merit. Although he was charged with first degree
murder, the trial court was required to instruct the jury on lesser included offenses,
including second degree murder, if supported by the evidence: “The California rule
requiring sua sponte instructions on all lesser included offenses, insofar as supported by
the evidence, . . . protects both the defendant and the prosecution against a verdict
contrary to the evidence, regardless of the parties’ own perceptions of their strongest lines
of attack or defense. The rule’s purpose is not simply to guarantee some plausible third
choice between conviction of the charged offense or acquittal, but to assure, in the
interest of justice, the most accurate possible verdict encompassed by the charge
and supported by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 161,

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fn. omitted.) “‘[N]either the prosecution nor the defense should be allowed, based on
their trial strategy, to preclude the jury from considering guilt of a lesser offense included
in the crime charged.’ [Citation.] Indeed, ‘“California decisions have held for decades
that even absent a request, and even over the parties’ objections, the trial court must
instruct on a lesser offense necessarily included in the charged offense if there is
substantial evidence the defendant is guilty only of the lesser. [Citations.]”’ [Citation.]”
(People v. Prince (2007) 40 Cal.4th 1179, 1265.) Based on this authority, the jury could
lawfully convict Shabazz of second degree murder although the charge was for first
degree murder.
       We have reviewed the entire record on appeal, including the augmented material.
We are satisfied that Shabazz’s counsel has fully complied with his responsibilities and
that no arguable appellate issue exists. (People v. Wende, supra, 25 Cal.3d at p. 441;
People v. Kelly (2006) 40 Cal.4th 106, 110.)
                                      DISPOSITION
       The order is affirmed.
       NOT TO BE PUBLISHED.




                                                   ROTHSCHILD, P. J.
We concur:



              CHANEY, J.



              BENDIX, J.*




*
        Judge of the Los Angeles Superior Court, Assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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