LRO III
Tests For A Lesser Related Offense [§LRO-15]
ALERT: People v. Geiger (84) 35 C3d 510 [199 CR 45] was overruled by People v. Birks (98) 19 C4th 108 [77 CR2d 848] which held that lesser related instructions may only be given if both parties stipulate. (See FORECITE LRO IA.) However, the following pre-Birks analysis of lesser related offenses is included for future reference:
In order to obtain instruction upon a lesser related offense under Geiger, the defense was required to meet three requirements.
First, there must exist some basis, other than an unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged. (Geiger 35 C3d at 531.)
Second, “the offense must be one closely related to that charged and shown by the evidence.” (Geiger 35 C3d at 531.)
Third, “the instructions must be justified by the defendant’s reliance on a theory of defense that would be consistent with a conviction for the related offense. Thus, the instruction need not be given if the defense theory and evidence reflect a complete denial of culpability as when the defense is alibi, or the only issue is identity, unless the defendant argues that the evidence at most shows guilt only of the related offense. [Footnote omitted.]” (Geiger 35 C3d at 531-32.)
[An unpublished opinion discussing this issue at length is available to FORECITE subscribers. Ask for Opinion Bank # O-195.]
LRO III(A) Requirement That Some Basis Exist, Other Than An Unexplainable Rejection Of Prosecution Evidence, For Jury To Find An Offense To Be Less Than That Charged (Geiger (84) 35 C3d 510, 531 [199 CR 45] [§LRO-16]: Courts have held that a sufficient basis existed for the jury to reject prosecution’s theory where conflicting evidence on intent or premeditation was before the jury (People v. Carcerano (91) 234 CA3d 1497, 1502 [1 CR2d 49]; People v. Woods (91) 226 CA3d 1037, 1052 [277 CR 269]; People v. Blevins (90) 220 CA3d 1413, 1415 [270 CR 172]) and where sufficient factual evidence supported defendant’s lesser related offense allegation (People v. Farrow (93) 13 CA4th 1606, 1619 [16 CR2d 844], People v. Weathington (91) 231 CA3d 69, 77 [282 CR 170]; People v. Santos (90) 222 CA3d 723, 739 [271 CR 811]; People v. White (86) 185 CA3d 822, 824 [231 CR 569].)
However, it has been held that juries have no basis for rejecting the prosecution’s theory where the evidence supporting the charged offense was overwhelming or uncontroverted (People v. Richmond (91) 2 CA4th 610, 618 [3 CR2d 252]; People v. Harlan (90) 222 CA3d 439, 450 [271 CR 653]; People v. Lofink (88) 206 CA3d 161, 169 [253 CR 384]; People v. Simpson (87) 192 CA3d 1360, 1371 [237 CR 910] and where conviction for the lesser related offense would, given the evidence, necessarily require conviction for the charged offense (People v. Almarez (85) 168 CA3d 262, 266 [214 CR 105].)
One court elaborated the Geiger “basis for rejection” requirement as requiring a defendant seeking a lesser related offense instruction to demonstrate both (1) that some reasonable basis existed on which the jury could find that the burden of proof as to the offense charged was not met, and (2) that some reasonable basis existed on which the jury could find that the burden of proof as to some other lesser offense was met. (People v. Hill (93) 12 CA4th 798, 804-05 [15 CR2d 806].)
LRO(III)(B) Evidentiary Test [§LRO-17]: In People v. Whitfield (93) 19 CA4th 1652, 1658 [24 CR2d 210], the court assumed, without expressly deciding, that “‘for a lesser uncharged offense to be closely related to a greater charged offense, evidence of the lesser offense must be relevant to the issue of whether the defendant is guilty of the greater one.’ [Citation].”
LRO(III)(B)(1) Test For Relatedness [§LRO-18]: Three standards for the second, “closely related” leg of the Geiger test have been advanced (People v. Geiger (85) 35 C3d 510, 531 [199 CR 45]):
(1) Does enforcement of the lesser related offense serve the same societal interest as enforcement of the charged offense? (People v. Araujo (92) 10 CA4th 700, 704 [12 CR2d 662]; People v. Hill (92) 6 CA4th 33, 40-43 [8 CR2d 123]; People v. Santos (90) 222 CA3d 723, 739-40 [271 CR 811]; People v. Boyd (85) 167 CA3d 36, 47 [212 CR 873].) For criticism of the “societal interest” standard, see People v. Jones (93) 14 CA4th 1252, 1258 [18 CR2d 673]; andPeople v. Farrow (93) 13 CA4th 1606, 1622-23 [16 CR2d 844].)
(2) Would evidence admitted to prove or disprove culpability for the charged offense also support conviction for the closely related offense? (Geiger 35 C3d at 531; People v. Jones (93) 14 CA4th 1252, 1257 [18 CR2d 673];People v. Farrow (93) 13 CA4th 1606, 1625 [16 CR2d 844]; People v. Hill (93) 12 CA4th 798, 806 [15 CR2d 806]; People v. Araujo (92) 10 CA4th 700, 704 & fn 2 [12 CR2d 662]; People v. Woods (91) 226 CA3d 1037, 1050 [277 CR 269]; People v. Blevins (90) 220 CA3d 1413, 1416-17 [270 CR 172].)
NOTE: Several of these cases have narrowed the “same evidence” standard to exclude evidence “only circumstantially related” to the charged offense from consideration under the “same evidence” standard. (Jones 14 CA4th at 1258; Farrow 13 CA4th at 1258; Araujo 10 CA4th at 705.)
This result seems inconsistent with Farrow’s conclusion that whether or not an offense is “closely related” should turn “on the evidence adduced at trial to establish whether the defendant is guilty of the charged offense.” (Farrow 13 CA4th at 1623-25.) Certainly evidence which is offered to establish a consciousness of guilt as to the murder should qualify as evidence adduced to establish that the defendant was guilty of the charged offense. The fact that the evidence “related to the murder only circumstantially and indirectly” (Jones 14 CA4th at 1258) should be of no consequence. The defendant’s due process right to instruction on related offenses should not be limited to those cases where the prosecution presents only direct evidence.
(3) Do the charged and lesser related offenses have similar statutory elements? (People v. Moore (90) 224 CA3d 234, 237-38 [273 CR 680].) Courts frequently analyze statutory elements while invoking either the “same evidence” standard (Jones 14 CA4th at 1258; People v. Araujo (92) 10 CA4th 700, 704 [12 CR2d 662]; People v. Weathington (91) 231 CA3d 69, 78 [282 CR 170]) or the “societal interest” standard (Araujo 10 CA4th at 704 and fn 2; People v. Santos (90) 222 CA3d 723, 739 [271 CR 811].) However, none of these cases require that the lesser offense contain any elements which are identical to the elements of the greater offense.
LRO III(C) Requirement That Defendant’s Rebuttal Of The Charged Offense Be Consistent With Conviction For The Lesser Related Offense [§LRO-19]: In Geiger the supreme court held a defendant seeking a lesser related offense instruction must offer a defense consistent with lesser related offense culpability (People v. Geiger (85) 35 C3d 510, 531-32 [199 CR 45].)
It has been held that the “consistency” leg of the Geiger test is satisfied where the defendant posits statutory elements of the lesser related offense in arguments raised in rebuttal of the charged offense (People v. Harlan (90) 222 CA3d 439, 450 [271 CR 653]; People v. Santos (90) 222 CA3d 723, 738 [271 CR 811]) and where the defense offered was incapacity to form intent (People v. Blevins (90) 220 CA3d 1413, 1416 [270 CR 172].) One court held that defendant’s failure to concede intoxication in a Drunk Driving trial was not inconsistent with a lesser related offense instruction for drunk and disorderly in public. (People v. Weathington (91) 231 CA3d 69, 77 [282 CR 170].)
On the other hand, the “consistency” leg of the Geiger test is not satisfied where the defense was alibi or identity (People v. Hill (92) 6 CA4th 33, 46 [8 CR2d 123]; People v. Richmond (91) 2 CA4th 610, 617 [3 CR2d 252]; but see below), where defendant denied all culpability (People v. Moore (90) 224 CA3d 234, 239, 273 CR 680), where a defendant argued facts inconsistent with lesser related offense culpability (People v. Hill (93) 12 CA4th 798, 807 [15 CR2d 806]) and where the defendant argued facts rendering the lesser related offense undifferentiable from the charged offense (People v. Cleaves (91) 229 CA3d 367, 374 at fn 4, 375, 379 [280 CR 146]; People v. Simpson (87) 192 CA3d 1360, 1370-71 [237 CR 910].)
LRO III(D) When Alibi Or Identity Defense Does Not Preclude Lesser Related Offense [§LRO-20]: Even though the defendant relies upon alibi or lack of identity and hence completely denies culpability, a lesser related offense should still be given upon request if the defendant argues that the evidence at most shows guilt only of the related offense. (See People v. Geiger (84) 35 C3d 510, 526, 531-32 [199 CR 45]; People v. Daly (92) 8 CA4th 47, 58-59 [10 CR2d 21].) For example, even if the defense to an attempted robbery prosecution is alibi, the defendant still has a right to instruction upon the lesser related offense of assault with a deadly weapon if the defendant requests such an instruction based on substantial evidence that the crime committed was no more than assault with a deadly weapon due to the weakness of the evidence of defendant’s intent. (People v. Woods (91) 226 CA3d 1037, 1050-53 [277 CR 69].) Hence, regardless of whether or not the defendant presents affirmative evidence on the question of intent, unless the evidence of intent is so overwhelming as to establish the requisite intent as a matter of law, the defendant still has the right to instruction upon the lesser related offense. (Woods 226 CA3d at 1050.)
LRO III(E) Determining Whether A Related Offense Is “Lesser” [§LRO-21]: Even though the misdemeanor of distributing an imitation controlled substance (HS 11680) concerns a related societal interest to Felony sale of a “fake” drug (HS 11355), it is actually a greater offense in terms of elements and lesser only in terms of punishment. Therefore, there is no right to instruction upon HS 11680 as a lesser related. (People v. Hill (92) 6 CA4th 33, 44-48 [8 CR2d 123]; but see dissent of Kline, P.J., emphasizing that it is the jury and not the district attorney who should determine for which offense the defendant should be punished.)
