Duty to Instruct
LIO II(A) General Rules
LIO II(A)(1) Upon request: Instruction upon a lesser included offense must be given either upon request or sua sponte if the accused presents evidence sufficient to “deserve consideration by the jury, i.e.,’evidence from which a jury composed of reasonable men could have concluded’ [Citation]” that the particular facts underlying the instruction did exist. (People v. Flannel (79) 25 C3d 668, 684-85, fn 12 [160 CR 84].) However, this standard does not require or permit the trial court to determine the credibility of witnesses, but it merely frees the court from an obligation to instruct upon lesser included offenses which the jury could not reasonably find to exist. (People v. Wickersham(82) 32 C3d 307, 324-25 [185 CR 436].)
LIO II(A)(2) Decision Rests With Defendant: In People v. Brocksmith (94) 604 NE2d 1059 [237 Ill.App.3d 818], a majority of the Illinois Supreme Court held that the decision whether to request a jury instruction on a lesser included offense rests with the defendant alone. In California it is well established that the defendant has the right to make fundamental decisions such as whether to plead guilty, to testify, etc., while most other matters of strategy are to be ultimately decided by counsel. (People v. Frierson (85) 39 C3d 803, 812-14 [218 CR 73].) In Brocksmith the Illinois Supreme Court concluded that the decision to tender a lesser included offense is analogous to the decision of what plea to enter and that the two decisions should be treated the same. Based on this reasoning, the defendant, rather than defense counsel, should make the ultimate decision as to whether to present a lesser included offense instruction to the jury. (See also, Frierson (85) 39 C3d at 816, fn 5 and cases cited in Brocksmith; but see, People v. Thompson (Mich. Ct. App. 1976) 245 NW2d 93, 94.) However, the trial court is obligated to instruct sua sponte on lesser included offenses regardless of the defendant’s wishes. (See LIO II (A)(3); PG V(A)(7).)
LIO II(A)(3) Sua Sponte Duty To Instruct On Lesser Included Offenses. “… [A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence and … where there is substantial evidence raising a question as to whether all of the elements of the charged offense are present, the failure to instruct on a lesser included offense, even in the absence of a request, constitutes a denial of that right. [Citation.] Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive.” (People v. Benavides (2005) 35 C4th 69, 102, internal citations and quotation marks omitted.)
“The court must instruct on a lesser included offense, even if not requested to do so, ‘when the evidence raises a question as to whether all the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.’ [Citations].” (People v. Melton (88) 44 C3d 713, 746 [244 CR 867].) The defendant’s testimony, though “less than convincing” is sufficient to require instruction upon a lesser included offense even without a request. (People v. Turner (90) 50 C3d 668, 690 [268 CR 706].)
“Our courts are not gambling halls but forums for the discovery of truth. [Citation.] Truth may lie neither with the defendant’s protestations of innocence nor with the prosecution’s assertion that the defendant is guilty of the offense charged, but at a point between those two extremes: the evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged. A trial court’s failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jury’s truth-ascertainment function. Consequently, neither 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. To permit this would force the jury to make an “all or nothing” choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence. [fn omitted].” (People v. Barton (95) 12 C4th 186, 196 [47 CR2d 569].) Instructions that fail to inform the jury of its option to convict the defendant of a lesser included offense shown by the evidence are necessarily incomplete. “`Trial courts have a sua sponte duty to instruct regarding lesser included offenses because neither the defendant not the People have a right to incomplete instructions.’ (Citation.)” (Id., at 204.); see also PG X(A)(7).)
As long as evidence of a lesser included offense is present the trial court must instruct upon the lesser included offense even when as a matter of trial tactics, a defendant not only fails to request the instruction but expressly objects to its being given. (People v. Sedeno (74) 10 C3d 703, 716 [112 CR 1].)
Instruction upon lesser included offenses is necessary so the jury will not be confronted with an “all or nothing” choice. If given no opportunity to convict of the lesser offense the jury may wrongly convict of the greater charge. (People v. Webster (91) 54 C3d 411, 444, fn 17 [285 CR 31]; see also Beck v. Alabama (80) 447 US 625, 633 [65 LEd2d 392] [“all or nothing” choice violates 8th Amendment in capital cases]; but see Livingston v. Johnson (5th Cir. 1997) 107 F3d 297, 312-13 [Beck does not require instruction on LIO in a capital trial where the guilt and penalty phases are bifurcated].)
This reasoning has been used to evaluate the prejudicial impact of the failure to instruct on a lesser included offense. (See FORECITE PG X(C)(2).) However, in Schad v. Arizona (91) 501 US 624 [115 LEd2d 555, 574-76], the court suggested that there may be no duty to instruct on a lesser included so long as the jury is to be given at least one lesser alternative.
LIO II(A)(4) Lesser Enhancements Must Be Requested: In People v. Majors (98) 18 C4th 385, 410 [75 CR2d 684] the court acknowledged the Turner rule that permits instruction on “lesser included enhancements,” but held that such an instruction must be requested. The court reached this conclusion on the basis that the sua sponte obligation to instruct on lesser included offenses applies in situations where the jury is forced into an all-or-nothing choice between guilt and innocence. Such a rationale does not apply to enhancements.
LIO II(B) Testimony as to Lack of Intent Not Necessary for Instruction on Lesser Offense: It is not necessary for the defendant to directly testify that as to a lesser intent than that charged. For example, in People v. Anderson (83) 144 CA3d 55, 62 [192 CR 409], the court rejected the attorney general’s argument that instruction on the defense of consent is only necessary when the defendant has testified as to consent. “The flaw in the argument is that it assumes a person’s state of mind can only be show by direct evidence. It is elementary that a defendant’s state of mind is most often shown through circumstantial evidence . . . .” (Anderson 144 CA3d at 62.)
LIO II(C) Due Process Underpinnings: In capital cases, federal due process requires instruction on lesser included offenses but in noncapital cases it is the due process of the state constitution which requires instruction. (See People v. Turner (90) 50 C3d 668, 720 [268 CR 706]; but see FORECITE PG VII(C)(13); but see People v. Breverman (98) 19 C4th 142, 170, fn. 19 [court declined to decide whether failure to instruct on a lesser offense of voluntary manslaughter “supported by the evidence” is federal constitutional error; see also id. at pp. 189-190 (dis. opn. of Kennard, J.) [failure to instruct violates Constitution “[w]here … there is sufficient evidence of heat of passion to support a voluntary manslaughter verdict”].)
LIO II(D) Duty Of Court To Instruct On Lesser Included Offense Over Defense Objection: See FORECITE PG V(A)(7).
LIO II(E)(1) Time-Barred Lesser Offenses.
Right To Instruction.Cowan v. Superior Court (96) 14 C4th 367, 376 abrogated long-settled precedent emanating from People v. McGee (34) 1 C2d 611 and held that a defendant may plead guilty to a lesser included offense that is time-barred by the statute of limitations or may request jury instructions on a time-barred lesser included or a lesser related offense, when the greater offense is not time-barred and the defendant expressly waives the statute of limitations. (See also People v. Williams (99) 21 C4th 335, 337-38 [defendant may expressly waive statute of limitations as to time-barred charge]; People v. Overman (2005) 126 CA4th 1344, 1358 [the court erroneously refused request to instruct on time-barred LIO]; People v. Jensen (2003) 114 CA4th 224, 244 [defendant may expressly waive time-barred charge].)
Whether The Claim Is Forfeited When The Defendant Requested Or Acquiesced In Instructing On The Time-Barred Lessor. People v. Williams (99) 21 C4th 335 held that “when the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time.” (Id. at p. 341; see also People v. Beasley (2003) 105 CA4th 1078 [defendant who did not request lesser-included instructions could contend for first time on appeal that LIO conviction was time-barred].) As the Beasley court observed: “To hold that Beasley forfeited his statute of limitations defense with respect to the misdemeanor assault counts in issue would contravene the long-standing principle, which [Williams] expressly declined to overrule, that a defendant may not inadvertently forfeit the statute of limitations.” (People v. Beasley, 105 CA4th at 1090.)
However, the cases have recognized two ways in which a time-barred lesser claim may be forfeited.
First, it has been suggested that the claim may be forfeited if the defendant expressly requested or acquiesced in the lesser instruction. (See People v. Stanfill (99) 76 CA4th 1137, 1150 [“[A] defendant forfeits the right to complain on appeal of conviction of a time-barred lesser included offense where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense”]; but see Cowan v. Superior Court (1996) 14 C4th 367, 372 [defendant may expressly waive his right not to be convicted of a time barred crime] and People v. Walker (1991) 54 C4th 1013, 1025 [waiver of statutory right must be knowing and intelligent].)
Second, the claim may be forfeited if the charging documents allege that the action is timely and the defense fails to litigate that allegation below. (See People v. Thomas (2007) 146 CA4th 1278 [where charging documents alleged that statute of limitations had been extended the defense was obligated to litigate that issue at trial and failure to do so forfeited the time-barred lesser included claim].)
RESEARCH NOTES: See Annotation, Time-barred: Instructions as to conviction of lesser offense, against which statute of limitations has run, where statute has not run against offense with which defendant is charged, 47 ALR2d 887 and Later Case Service.
LIO II(E)(2) Forfeiture Of Statute Of Limitations For Failure To Object: See FORECITE PG VI(A)(8).
LIO II(F) No Lesser Instruction Required For Felony Which Is Basis For Special Circumstance Allegation But Is Not Separately Charged: See FORECITE 8.21 n2.
LIO II(G) Appellate Court May Reduce Charge To Lesser Included To Which Defense Successfully Objected Below: In People v. Matian (1995) 35 CA4th 480, it was held that the Court of Appeal, pursuant to PC 1260, may reduce a conviction from the greater offense – for which insufficient evidence was presented – to a lesser offense even though the defendant successfully objected to instruction upon the lesser offense at trial. (But see LRO VII(C) [trial court may not reduced charged offense to lesser related offense.)
However, in People v. Chavez UNPUB’D (7/13/2012, F061361) 2012 Cal. App. Unpub. LEXIS 5178, n15, the reviewing court declined to reduce Count III to that lesser included offense because of the same prejudicial instructional errors that plagued Counts I and II. (See also FORECITE LIO III(A).)
LIO II(H) New Charges Or Theories During Deliberations: See FORECITE PG IX(H)(2).