Degree of Offense; How Determined

When it appears that the defendant has committed an offense, and there is reasonable ground of doubt in which of two (2) or more degrees he is guilty, he can be convicted of the lowest of such degrees only. NOTE: Section 90.25 is substantively the same as former § 1097. See also Cal. Pen. Code § 1097. See generally B. Witkin, California Criminal Procedure Judgment and Attack in Trial Court § 541(b) (1963). The defendant is entitled to an instruction based on this Section in a proper case. Witkin also notes that although the section literally applies only to offenses divided into degrees, a long line of cases approves a similar instruction for lesser included offenses. See § 90.27.