LRO II
Theories For Instruction On Lesser Related
Offenses Notwithstanding Birks
A. Background. 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.
CALJIC has interpreted Birks to preclude instruction on lesser related offenses without exception. (See CJ 17.10 [January 1999 Pocket Part] Use Note.)
However, the theories set forth below provide potential bases for instruction on lesser relateds in particular circumstances.
Briefing Available On Lesser Related Doctrine: [The Birks briefing on the lesser related offense doctrine is available to FORECITE subscribers. Ask for Brief Bank # B-734.]
B. Conflict Between Birks and the Right to Present a Defense. People v. Birks (98) 19 C4th 108 [77 CR2d 848] and Hopkins v. Reeves (98) 524 US 88 [141 LEd2d 76; 118 SCt 1895], upon which it relied, considered uncharged lesser related offenses in the context of traditional lesser offense analysis under standard cases such as Beck v. Alabama (80) 447 US 625 [65 LEd2d 392; 100 SCt 2382] and People v. Sedeno (74) 10 C3d 703 [112 CR 1]. In other words, the issue was framed in terms of what alternatives may be presented to the jury and whether the process is sufficiently reliable. However, this analysis does not expressly address the fact that a lesser offense can be a “defense” (see Delaney v. Superior Court (90) 50 C3d 785, 809 [268 CR 753]) and, hence, restriction of instruction on a lesser offense may be a restriction of the defendant’s right to present a defense. While Reeves (in which the lesser offense was requested in reliance upon Beck) may be read to have implicitly held that the state may so restrict the defense, it did not confront the issue head-on. Reeves did not discuss whether there was a factual basis for such an argument (i.e., strong evidentiary support for the lesser offense and explicit defense reliance upon such evidence as a primary defense theory). Nor did Reeves confront the well developed body of federal law establishing a federal constitutional basis under the 6th and 14th amendments to instruct the jury on the theory of the defense. Similarly, Carter v. United States (2000) 530 US 255 [147 LEd2d 203; 120 SCt 2159, 2172] reaffirmed the general rule that under FRCP 31(c) the defendant is not entitled to a jury instruction on lesser offense when elements of offense are not a subset of charged offense. However, Carter limited its discussion to Rule 31. It did not address the question of whether the defendant’s constitutional rights require instruction on a non-included lesser offense as a defense theory.
Hence, the cases which have limited lesser offenses to statutorily included offenses should not preclude an argument that instruction on a lesser related offense may be required by the defendant’s right to instruction on the defense theory of the case which is founded on the federal constitutional rights to due process, compulsory process and fair trial by jury. (5th, 6th and 14th Amendments; Mathews v. United States (88) 485 US 58, 63 [99 LEd2d 54; 108 SCt 883] citing Stevenson v. United States (1896) 162 US 313 [40 LEd 980; 16 SCt 839] [refusal of voluntary manslaughter instruction in murder case where self-defense was primary defense constituted reversible error]; Keeble v. U.S.(73) 412 US 205, 213 [36 LEd2d 844; 93 SCt 1993]; People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; People v. Wharton (91) 53 C3d 522, 570-72 [280 CR 631]; People v. Wright (88) 45 C3d 1126, 1141-43 [248 CR 600]; U.S. v. Sotelo-Murillo (9th Cir. 1989) 887 F2d 176, 178-79; U.S. v. Lesina (9th Cir. 1987) 833 F2d 156, 159-60; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201.)
For example, in Sanborn v. Commonwealth (6/9/88, Kentucky) 754 SW2d 534, the defendant in a rape case had a right to an instruction on the lesser related offense of abuse of a corpse based on the defense theory that the sex acts occurred after the victim was dead. That was so because reliance on a lesser charge is a defense which the defendant has the right to present to the jury. (Compare People v. Yeoman (2003) 31 C4th 93, 129 [theft from a dead human body may be a lesser related offense to robbery but is not a lesser included offense thus precluding the accused from relying on theft from a dead body as a defense theory]; see also U.S. v. Brown (8th Cir. 1994) 33 F3d 1002, 1004 [defendant’s testimony that he only assisted after the crime necessitated instruction on defense theory of accessory after the fact which is not a lesser included]. See FORECITE LIO V(A).)
Moreover, the U.S. Supreme Court has consistently held that domestic rules of evidence may not be invoked to preclude a criminal defendant from establishing that he has been denied a fair trial. (See Rock v. Arkansas (87) 483 US 44 [97 LEd2d 37; 107 SCt 2704]; Green v. Georgia (79) 442 US 95 [60 LEd2d 738; 99 SCt 2150]; Davis v. Alaska (74) 415 US 308 [39 LEd2d 347; 94 SCt 1105]; Chambers v. Mississippi (73) 410 US 284 [35 LEd2d 297; 93 SCt 1038];Washington v. Texas (67) 388 US 14 [18 LEd2d 1019; 87 SCt 1920].) The Supreme Court has applied a balancing test in resolving conflicts between state rules of evidence and federal constitutional provisions, weighing the interest of the defendant against the state interest in the rules of evidence. (Chambers, supra, 410 US at 295; Green v. Georgia, supra, 442 US at 97; Washington v. Texas, supra, 388 US at 19-23.) Several federal circuit courts of appeal have also utilized such a test. (Dudley v. Duckworth (7th Cir. 1988) 854 F2d 967; Perry v. Rushen (9th Cir. 1983) 713 F2d 1447; Alicea v. Gagnon (7th Cir. 1982) 675 F2d 913, 923; Pettijohn v. Hall (1st Cir. 1979) 599 F2d 476, 486.) Exclusion of evidence has been found to be arbitrary or disproportionate “where it has infringed upon a weighty interest of the accused.” (U.S. v. Scheffer (98) 523 US 303 [140 LEd2d 413; 118 SCt 1261].)
In sum, in a case where the lesser related offense is a primary focus of the defense theory, there may be a basis for challenging the state rule enunciated in Birks and Reeves as violative of the right to present a defense.
[See Brief Bank # B-842 for additional briefing on this issue.]
C. Right to Lesser Related Instructions When the Prosecution Opens the Door. If the prosecutor requests an instruction that essentially opens up an issue, then it seems that under footnote 19 of Birks, that opens up the entire issue. As an example, suppose the evidence shows there was a gang beating, and at the end, one of the gang members pulled out a gun and executed the helpless victim. The prosecutor has decent evidence the defendant pulled the gun, but he wants to increase his likelihood of conviction, so he also proposes an instruction that the defendant is also guilty as an aider and abettor of the felony assault, with murder as the natural and probable consequence. Under Birks, the defendant can no longer request an instruction on felony assault as a lesser related offense of murder. However, when the prosecutor requests an instruction on assault — even as a mere target offense — that opens up the case to all assault instructions, and the defendant should get a lesser instruction.
One might also do that not only via footnote 19 of Birks, but also by a “constructive amendment” theory. There is language in People v. Toro (89) 47 C3d 966, 976 [254 CR 811], which suggests that a request for a jury instruction is tantamount to amendment of the accusatory pleading. There is a certain logic to that. Here, then, the prosecutor’s request for the instruction is a constructive amendment to the information to add an assault — which, makes assault either a charged offense, or a lesser included offense of a charged offense.
D. The Jury Should at Least Be Informed about the Uncharged Related Offenses So It Can Meaningfully Represent the Conscience of the Community. Although there is no right to directly instruct the jury regarding its power of nullification, that doctrine, at least for now, remains valid. (See cases cited in People v. Dillon (83) 34 C3d 441, 490-93 [194 CR 390], Klaus, J., concurring; see also People v. Williams REV GTD (2/18/98, S066106) (unpublished below, H015048) [review granted to consider whether a juror may be dismissed during deliberations in response to his or her refusal to follow the instructions].) And, it is the essence of the nullification doctrine that the jury bring the conscience of the community into the jury room. In order to do so, the jury should be aware that the defendant could have been charged with related crimes but the District Attorney decided not to charge him. Otherwise, the jury may falsely assume that the only law against the conduct committed by the defendant is the one under which he is charged and that defendant should be convicted to deter others. On the other hand, if the jury is aware of the other charges which could have been filed it will be able to focus on whether conviction of this defendant is appropriate. Trial lawyers may wish to try to argue this point, with or without an instruction.
E. Using Instruction on a Related Offense to Clarify the Charged Offense. Even though it doesn’t present a third option for the jury, comparative instruction on a related offense may be useful in clarifying the elements of the charged offense. Under this strategy the defense would request an instruction which informs the jury that if it finds that the defendant committed the related offense but not the charged offense it must acquit. (See People v. Preston (73) 9 C3d 308, 318-9 [107 CR 300] [jury instructed on both the charged offense [murder] and the uncharged offense [accessory]]; see also People v. Johnson (50) 99 CA2d 717, 725, 727, 732-3 [222 P2d 335].) A related concept is used in defining the burden of proof to the jury by comparing the required burden with another lesser burden. (See BAJI 2.62; Devitt, Blackmar, et al., Fed. Jury Prac. & Inst., (1987) § 97.04, p. 730.)
F. Instruction On Lesser Related Offenses Is Still Permissible By Stipulation. Birks noted that its decision does not foreclose the parties from agreeing that the defendant may be convicted of a lesser offense not necessarily included in the original charge. (Birks, supra, fn. 19.) Hence, this avenue may still be explored.
G. Birks Demonstrates That Improper Overcharging Is Prejudicial. The essential premise of Birks is that the prosecution should not have to submit to a lesser related offense because its very existence in the instructions may cause the jury to compromise and settle for conviction of the lesser offense. This judicial recognition of the reality that the jury’s verdict may well be the product of the options offered to it can be useful in cases involving improper instruction on greater offenses. For example, if the jury is improperly instructed on first degree murder and convicts on second degree, the improper instruction on the greater charge was not prejudicial because it “upped the ante” and encouraged the jury to compromise on the middle ground. (See Price v. Georgia (70) 398 US 323 [26 LEd2d 300; 90 SCt 1757]; see also FORECITE PG X(E)(23).)
H. Retroactivity of Birks — Changing the Rules in the Middle of the Game. The Birks opinion finds no impediment to full retroactivity. However, there may be a fundamental unfairness to applying the new rule to cases that were tried under the old one.
Fundamental trial strategy decisions, and even the decision of whether or not to go to trial, could be affected by whether or not instruction on a lesser offense is available. For example, pre-Birks, a defendant could have decided to go to trial based on the assumption that a lesser offense would be available. If the trial court denied the request, counsel would not have needed to put anything more on the record since Geiger’s reversal per se rule controlled. Because the rules were changed in the middle of the game, the defendant should have a new opportunity to make the decision of whether or not to go to trial — and what strategy to use — with full knowledge that no appellate recourse is available for denial of the requested lesser offense.
Indeed, Birks left open the possibility that prejudice could be shown in the proper case. While the court stated that such claim could not be easily made the opinion did not expressly foreclose such an argument. Hence, appellate counsel who is in this position should discuss with trial counsel any strategic decisions which may have been impacted by Birks.
Examples of inequities which could have resulted from the changing of the rules by Birks were suggested by Alex Ricciardulli in “Briefly Speaking” as follows:
“If you can establish that you actually presented your case to the jury in reliance on getting Geiger instructions, this may be enough to prevent Birks from applying retroactively. Also, if you turned over discovery to the prosecution in reliance on getting lesser-related instructions, or you fail to do discovery and thereby lost witnesses anticipating you would not need them because you would be getting lesser related instructions, these types of irreparable harm might justify not applying Birks to your case.”
I. Renewed Importance Of Considering Lesser Includeds Based On The Charging Language. Birks should create a renewed awareness of the availability of lesser included offenses based on the language of the charging document. (See e.g., People v. Clark (90) 50 C3d 583, 636 [268 CR 399]. See also FORECITE LIO (A).)
J. The Defendant Should Be Permitted To Move For Amendment Of The Information Under PC 1009 To Add Uncharged Offenses. (See “Motion For Discretionary Amendment Of Information To Include Uncharged Offenses (PC 1009),” Sections A-C, FORECITE Motion Bank # M-3006.)
K. Even If Granting A Defense Motion To Amend Violates Separation Of Power Principles, Federal Constitutional Principles Require The Court To Consider A Discretionary Motion To Amend By The Defendant. (See “Motion For Discretionary Amendment Of Information To Include Uncharged Offenses (PC 1009),” Section D, FORECITE Motion Bank # M-3006.)
