Specific Developments [§LRO-30]
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:
LRO IX(A) Accessory Involvement (PC 32) [§LRO-31]:
Accessory (PC 32) As Lesser Related Offense Of Conspiracy (PC 182). People v. Horn (74) 12 C3d 290, 297 [115 CR 516] held that the court must instruct the jury upon both the offense the defendants are charged with conspiring to commit and any lesser offenses the defendants assert to be the true object of the conspiracy. However no case has considered whether accessory (PC 32) can be a lesser related offense to conspiracy. (But see FORECITEF 8.10 n3 discussing whether accessory is a lesser related offense of murder.)
Accessory To Murder Or To Murder Conspiracy: Accessory involvement may be a lesser related offense to murder or to conspiracy to commit murder. (People v. Brice (88) 206 CA3d 111, 114-115 [253 CR 370]; People v. White (86) 185 CA3d 822, 824, 830 [231 CR 569]; but see People v. Jones (93) 14 CA4th 1252, 1257-58 [18 CR2d 673] [defendant’s cover up story insufficient to warrant accessory instruction].)
Aiding And Abetting Suicide (PC 401): Aiding and abetting a suicide may be a lesser related offense in a murder prosecution when there is evidence that the defendant merely furnished the means for another to commit suicide. (In re Joseph G. (83) 34 C3d 429, 439 [194 CR 163]; People v. Cleaves (91) 229 CA3d 367, 379-81 [280 CR 146].) However, a person who actually performs or assists in performing the overt act resulting in death is liable for murder. (People v. Matlock (59) 51 C2d 682, 694 [336 P2d 505].)
LRO IX(B) Assault [§LRO-32]:
Misdemeanor Assault (PC 240) is a lesser related offense to Robbery (PC 211.) (People v. Wright (89) 209 CA3d 386, 392-94 [257 CR 247].)
Assault With A Deadly Weapon (PC 245) is a lesser related offense to Attempted Murder (PC 664, PC 187.) (People v. Woods (91) 226 CA3d 1037, 1050-52 [277 CR 269]; People v. Gragg (89) 216 CA3d 32, 41-43 [264 CR 765].)
Assault With A Deadly Weapon (PC 245) was disallowed as a lesser related offense to Robbery (PC 211) in People v. Boyd (85) 167 CA3d 36, 45-46 [212 CR 873].
Assault With A Deadly Weapon With Force Likely To Cause Great Bodily Harm (PC 245) is a lesser related offense to Robbery. (People v. Wright (89) 209 CA3d 386, 392-94 [257 CR 247].)
Assault With A Firearm On A Police Officer (PC 241(b)) is a lesser related offense to attempted murder. (People v. Daly (92) 8 CA4th 47, 58 [10 CR2d 21].)
LRO IX(C) Battery [§LRO-33]:
Misdemeanor Battery (PC 240) is lesser related offense to forcible sexual offenses. (People v. Santos (90) 222 CA3d 723, 740-41 [271 CR 811].)
Battery (PC 242) may be a lesser related offense to Felony Excessive Corporal Punishment of a Child (PC 273d.) (People v. Lofink (88) 206 CA3d 161, 168-69 [253 CR 384].)
Battery (PC 242)was disallowed as a lesser related offense to Assault by Means Likely to Inflict Great Bodily Injury (PC 245(a)(1)) in People v. Simpson (80) 192 CA3d 1360, 1370-71 [237 CR 910].
Battery On A Police Officer, Causing Injury (PC 243(c)) may be a lesser related offense to Assault with a Firearm on a Police Officer (PC 245(c).) (People v. Delahoussaye (89) 213 CA3d 1, 9-13 [261 CR 287].)
Battery Causing Serious Bodily Injury (PC 243(d)) may be a lesser related offense to attempted murder. (People v. Toro (89) 47 C3d 966, 969-70 [254 CR 811].)
Sexual Battery may be a lesser related offense to Assault with Attempt to Commit Rape. (People v. Carapeli (88) 201 CA3d 589, 595-96 [247 CR 478].)
LRO IX(D) Brandishing Or Exhibiting A Firearm [§LRO-34]:
Exhibiting Of A Firearm (PC 417) was disallowed as a lesser related offense to Robbery (PC 211) in People v. Boyd (85) 167 CA3d 36, 47-48 [212 CR 873].
Brandishing Of A Replica Firearm (PC 417.2) was disallowed as a lesser related offense to Possession of a Firearm by a Person Convicted of a Felony (PC 12021). (People v. Moore (90) 224 CA3d 234, 237-40 [273 CR 680].)
LRO IX(E) Controlled Substance Offenses [§LRO-35]:
Attempted Possession Of Cocaine was disallowed as a lesser related offense to Robbery (PC 211) in People v. Boyd (85) 167 CA3d 36, 47-48 [212 CR 873].
Possession As Lesser Related Offense Of Transportation (HS 11350 and HS 11352). In People v. Rogers (71) 5 C3d 129, 134, fn 3 [95 CR 601], the court stated: “In cases where defendant’s possession is incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent possession is shown, the offense of possession is deemed to be necessarily included in the offense of transportation, and defendant may not be convicted of both charges. [Citations.]” However, in People v. Thomas (91) 231 CA3d 299, 305-06 [282 CR 258], the court held that the “current test” of a necessarily included offense “directs us to a different result.” The court went on to hold that even though the defendant was found guilty of two offenses, possession of cocaine base and transportation of cocaine, based upon the same act of carrying the contraband in an automobile in his possession, the appropriate procedure was not to invalidate the conviction of the lesser offense but to stay the sentence for the lesser offense per PC 654.
CAVEAT: In light of Thomas, trial counsel is obligated to request instruction upon the transportation offense as a lesser related offense should the trial court not give the lesser instruction.
Allowing A Building To Be Used For Drug Manufacture (HS 11366.5(a)) As Lesser Related Offense Of Aiding And Abetting Manufacture (HS 11379.6). HS 11366.5 and HS 11379.6 are “closely related …” offenses. Depending on the circumstances, the defendant may be convicted of either or both of these offenses based on a single course of conduct.
LRO IX(F) Driving Under The Influence [§LRO-36]:
Drunk In Public (PC 647(f)) As Lesser Related Of DUI (VC 23152). In People v. Weathington (91) 231 CA3d 69, 77-79 [282 CR 170], the defendant contended that he was not under the influence of alcohol when he drove his vehicle but that he became intoxicated while waiting for his car to be repaired at a gas station. Based on the evidence, the Court of Appeal concluded that the jury could have found the defendant innocent of drunk driving but guilty of being drunk in public (PC 647(f)). Thus, it was error to refuse the defendant’s requested instruction upon the lesser related offense of drunk in public.
DUI As Lesser Related Of ADW. DUI was disallowed as a lesser related offense to Assault with a Deadly Weapon (PC 245(a)(1)), in a case charging that defendant willfully rammed a semi truck into other vehicles. (People v. Blevins (90) 220 CA3d 1413, 1415-17 [270 CR 172].)
LRO IX(G) Joyriding (PC 499b) [§LRO-37]:
ALERT: Effective January 1, 1997, PC 499b was amended, deleting reference to “any automobile, motorcycle, or other vehicle.” The new statute only pertains to bicycles, motorboats or vessels. PC 487h was repealed, and “automobile” was added to the grand theft statute (PC 487(d)), effective January 1, 1997. (See FORECITE F 14.37 n4 [ALERT: Legislative Changes To Auto Theft And Related Statutes].)
Unlawful Auto Taking And Joyriding May Be Lesser Related Offenses Of Robbery [§LRO-59]. (See People v. Morris UNPUBLISHED (E008083). [Morris opinion available to FORECITE subscribers. Ask for Opinion Bank # O-115.]
Joyriding (PC 499) was disallowed as a lesser related offense to First Degree Burglary (PC 459, former PC 460(1)). (People v. Araujo (92) 10 CA4th 700, 703-05 [12 CR2d 662].)
LRO IX(H) Petty Theft [§LRO-38]:
Petty Theft As Lesser Related Offense To Sale Of “Fake” Drug. Felony sale of a “fake” drug (HS 11355) does not warrant instruction on lesser related offense of misdemeanor petty theft because the societal interest in each crime is different. (People v. Hill (92) 6 CA4th 33, 41 [8 CR2d 123].)
LRO IX(I) Receiving Stolen Property [§LRO-39]:
Receiving Stolen Property may be a lesser related offense to Burglary. (People v. Lagunas (94) 8 C4th 1030, 1035 [36 CR2d 67].)
LRO IX(J) Torture (Prop. 115) (PC 206) [§LRO-40]:
Assaultive Crimes As Lesser Relateds. While battery is a necessarily lesser included offense of torture; assaultive crimes (e.g., PC 245, PC 273a, PC 273d, PC 273.5) are not because an assault can be committed without a touching of the victim. Nor is mayhem (PC 203, PC 205) a lesser included because it requires a specific injury. However, such offenses can be lesser related offenses to torture. (See FORECITE LRO I.)
LRO IX(K) Weaving [§LRO-41]:
Weaving as LRO of DUI (VC 23152(a)). Weaving in violation of VC 12658(a) may be a lesser related offense of driving under the influence in violation of VC 23152(a).
LRO IX(L) Willful Cruelty To Child (PC 273) [§LRO-42]:
Willful Cruelty To A Child Under Circumstances Other Than Those Likely To Produce Great Bodily Harm Or Death (PC 273(2)) was disallowed as a lesser related offense to Excessive Corporal Punishment of a Child (PC 273d), where the trial court gave a lesser related offense instruction on Battery. (People v. Lofink (88) 206 CA3d 161, 168-69 [253 CR 384].)
LRO IX(M) Felony Murder Special Circumstance [§LRO-43]:
No Lesser Instruction Required For Felony Which Is Basis For Special Circumstance Allegation But Is Not Separately Charged. See FORECITE F 8.21 n2.
LRO IX(N) Trespass [§LRO-44]:
Trespass As Lesser Related Offense Of Burglary. Trespass under PC 610.5 is a lesser related offense to burglary in the first degree under PC 459 as that concept is defined by People v. Geiger (84) 35 C3d 510 [199 CR 45]. (See People v. Farrow (93) 13 CA4th 1606, 1625-26 [16 CR 844]; see also, People v. Irizarry (95) 37 CA4th 967, 973-75 [44 CR2d 88].) [Additional briefing and an unpublished opinion discussing this issue are available to FORECITE subscribers. Ask for Brief Bank # B-673 a/b and Opinion Bank # O-195.]
LRO IX(O) Arson [§LRO-45]:
Careless or Negligent Action Which May Cause A Fire (HS 13001) as LRO of Arson: While no case has specifically so held, the statutory language suggests that HS 13001 may be either included in or related to PC 452, depending on how the offense is charged.