Does Defendant’s Request For Instruction On A Particular Unrelated Offense Allow
The Prosecutor To Request Instruction On Other Lesser Related Offenses? [§LRO-23]
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 FORECITELRO IA.) However, the following pre-Birks analysis of lesser related offenses is included for future reference:
Under Geiger, the court could generally not instruct on a lesser related offense if the offense is not charged and the defendant objects to instruction upon it. However, in People v. Wright (89) 209 CA3d 386 [257 CR 247], the court carved out a substantial exception to this rule. In Wright the defendant was charged with robbery and use of a knife. Based on the evidence presented at trial, the defendant requested instructions on misdemeanor assault. The prosecutor responded by requesting felony assault instructions. The court gave the felony assault instructions over the objection of defendant and the Court of Appeal held that there was no error in giving the felony assault instructions because the defendant had requested the misdemeanor assault instructions. (Wright 209 CA3d at 390-95; see also, People v. Le (95) 39 CA4th 1518 [46 CR2d 566] [defendant’s request for a specific lesser related offense allows trial court to select which lesser offense upon which to instruct].)
Hence, on its face, the Wright decision exposes the defendant to the possibility of conviction upon any uncharged lesser offense any time he has requested a lesser related offense instruction.
However, the reasoning of the Wright decision is suspect. For example, in the Wright dissent, Justice Johnson reasoned that conviction upon an uncharged lesser related over the objection of the defendant is a violation of due process regardless of whether the defendant has requested another lesser related offense instruction: “I cannot in good conscience concur in an opinion at such variance with principles so recently reaffirmed by the California Supreme Court. Nor can I in good conscience concur in an opinion which so heavily burdens the right of future defendants to request instructions on those “lesser related” offense they deem appropriate, a right the California Supreme Court also endorsed in People v. Toro . . . [Citing Toro 47 C3d at 975].” (Wright 209 CA3d at 397, dissenting opinion of Johnson, J.)
Furthermore, in an opinion which was later decertified for publication, the court in People v. Lugo DEPUBLISHED (89) 216 CA3d 68 [264 CR 581], disagreed with the Wright decision. The Lugo court contended that the majority opinion in Wright violated the right of the defendant to decide which lesser related instructions are given by in effect holding that defendant’s choice declares open season on all lesser related instructions supported by the evidence. TheLugo court also concluded that Wright’s reasoning offends established due process principles by holding that constructive notice is an adequate substitution for actual notice of the charges. [A copy of the Lugo opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-155.]
Finally, it should be noted that the Wright court emphasized the fact that although defense counsel objected to the lesser related offense, he did not “request a recess, move for a brief continuance, ask permission to reopen the defense, request further cross-examination of the victim or any other witness, urge that final argument be deferred, or do anything else reflective of surprise or inadequate preparation.” (Wright 209 CA3d at 393-94.) Accordingly, should counsel be faced with a Wright situation, it might be possible to avoid the impact of the Wright decision by raising a claim of unfair surprise.