I respectfully dissent.
People v. Toro makes it abundantly clear the trial court cannot give a lesser related instruction as to any crime to which the defendant objects. As Justice Kaufman wrote for the majority: “[T]he due process notice requirement precludes conviction for a lesser related offense when the defendant has not consented to its consideration by the trier of fact, but fundamental fairness also requires that the trier of fact be permitted to consider the lesser related offense when the defendant requests it. Thus the law recognizes that instructions on lesser related offenses may be highly beneficial or prejudicial to the defendant, depending on the defendant’s trial preparation, the nature of the defense presented, and other matters of trial strategy. Because the defendant, assisted by counsel, is the only person who can assess the impact of lesser related offense instructions in a given case, the decision to permit or preclude consideration of the lesser related offense is a right accorded to the defendant.” {People v. Toro (1989) 47 Cal.3d 966, 975 [254 Cal.Rptr. 811, 766 P.2d 577], italics added.)
The majority opinion in the instant case permits the very thing which the majority opinion in People v. Toro prohibits. It allows the prosecution to foist a lesser related felony instruction on the defendant over his expressed objection.
The majority in Toro allowed the prosecution’s lesser related instruction only because it found the defendant had not objected to the giving of that instruction. From the failure to object, the Toro majority implied the defendant had consented to that instruction. The dissenting justices were unwilling to imply consent from mere silence and thus favored reversal of the conviction on the lesser related offense. (47 Cal.3d at pp. 979-982.) But the entire Supreme Court was united on the proposition it is the defendant’s option whether an uncharged, lesser related instruction is given. If the defendant expressly objects, the instruction may not be given.
*396In the instant case, the majority concedes appellant expressly objected to the giving of the “lesser related” instruction on felony assault. However, the majority holds this express objection is trumped by appellant’s express request for the giving of a “lesser related” instruction on misdeameanor assault.
The fact a defendant requests his own lesser related misdemeanor instruction in no way constitutes an express consent to the giving of lesser related felony instructions which somehow overrules his expressed objection to the giving of those instructions. To infer consent and worse to infer defendant has consented to an overruling of his expressed objection to the prosecution’s lesser related instruction—or to make consent irrelevant where a defendant has requested any lesser related instructions—flies in the face of the unequivocal language the California Supreme Court used only four months ago in People v. Toro. “[T]he law recognizes that instructions on lesser related offenses may be highly beneficial or prejudicial to the defendant, . . . Because the defendant, ... is the only person who can assess the impact of lesser related offense instructions in a given case, the decision to permit or preclude consideration of the lesser related offense is a right accorded to the defendant.” (47 Cal.3d at p. 975, italics added.)
The Toro opinion makes it clear the right to permit or preclude consideration of each and every lesser related instruction reposes in the defendant not the prosecution. Toro does not say—or imply—the defendant only has the right to permit or preclude the general notion of giving “lesser related” instructions in a given case. And it most certainly does not say—or imply— that by electing to request an instruction on one “lesser related” offense the defendant declares open season on all “lesser related” instructions. Instead the Supreme Court explicitly speaks of a right to permit or preclude consideration of “the” individual lesser related offense and indeed prohibits conviction for any individual uncharged offense which went to the jury over the defendant’s objection. “[D]ue process . . . precludes conviction for a lesser related offense when the defendant has not consented to its consideration by the trier of fact, ...” (47 Cal.3d at p. 975, italics added.)
The principle announced in the majority opinion in the instant case would as a practical matter prevent defendants from asking trial courts to give “lesser related” instructions in many if not most cases. For, in many if not most cases, the evidence will arguably support one or more uncharged “lesser related” offenses different from and of greater severity than the offense the defendant might choose to place before the jurors as an option for them to consider. So in almost all cases it will be possible for the prosecution to identify and request instructions as to offenses it did not charge the defendant with committing but which carry sentences nearly as *397great as what might be imposed under the offense or offenses it did charge. Thus, defendants would never feel free to request lesser related instructions on any offense unless they were willing to risk conviction on any of a whole array of additional “lesser related” offenses for which the prosecution might elect to request instructions.
I cannot in good conscience concur in an opinion at such variance with principles so recently reaffirmed by the California Supreme Court. Nor can I in good conscience concur in an opinion which so heavily burdens the right of future defendants to request instructions on those “lesser related” offenses they deem appropriate, a right the California Supreme Court also endorsed once again in People v. Toro-. “[I]t would be ‘fundamentally unfair to deny the defendant the right to have the court or jury consider the “third option” of convicting the defendant of the related offense.’ ” (47 Cal.3d at p. 975, italics added.) This right the majority opinion renders a virtual nullity in most cases. I agree with the Supreme Court such a course is “fundamentally unfair.”
For these reasons, I would reverse the conviction on the felony assault charge and remand for further proceedings consistent with established law and principle.
Appellant’s petition for review by the Supreme Court was denied June 22, 1989. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.