PG X(J) Standard of Prejudice: Failure to instruct on LIO.
PG X(J)(1) Failure To Instruct Sua Sponte Governed By Watson [§PG-370]. People v. Breverman (98) 19 C4th 142 [77 CR2d 870] 98 DAR 9358 overruled Sedeno/Modesto (People v. Sedeno (74) 10 C3d 703 [112 CR 1]; People v. Modesto (63) 59 C2d 722 [31 CR 225]) standard of prejudice in favor of the Watson (People v. Watson (56) 46 C2d 818 [294 P2d 243]) standard for state law errors. In doing so, Breverman assumed that the failure to instruct on an unrequested lesser included offense is only state error in a non-capital case.
However, the United States Supreme Court has not resolved the question of whether due process requires sua sponte instruction on lesser included offenses. Beck v. Alabama (80) 447 US 625 [65 LEd2d 392; 100 SCt 2382] was a capital case which held under the 8th Amendment that instruction on lesser included offenses is required sua sponte. The question of whether the failure to instruct sua sponte on a lesser included in a non-capital case violates due process under the 14th Amendment has not been resolved by the U.S. Supreme Court. The federal appellate courts are split on this question. The failure to instruct sua sponte upon a lesser included offense where supported by the evidence has been held to violate due process. (Vujosevic v. Rafferty (3d Cir. 1988) 844 F2d 1023, 1027-28; see also Ferazza v. Mintzes (6th Cir. 1984) 735 F2d 967, 968; Turner v. Marshall (9th Cir. 1995) 63 F3d 807, 818-19 [discussing split in circuits on this issue].) However, other courts, including the Ninth Circuit, have held that the failure of the state court to instruct, sua sponte, upon a lesser offense “fails to present a federal constitutional question ….” (James v. Reese(9th Cir. 1976) 546 F2d 325, 327; see also People v. Turner (90) 50 C3d 668, 720 [268 CR 706].)
Hence, until the United States Supreme Court resolves this conflict, state attorneys should continue to preserve the question by asserting a due process right to instruction on lesser included offenses.
People v. Dennis (98) 17 C4th 468, 502 [71 CR2d 680] recognized, in reliance upon Beck v. Alabama(80) 447 US 625, 637-38 [65 LEd2d 392; 100 SCt 2382], that a “jury’s guilt determination would be unreliable if the jury is forced to make an all or nothing choice between a capital verdict and an acquittal.” However, when the jury is presented with options short of acquittal, this central concern of Beck does not apply. (Dennis 17 C4th at 503.)
PG X(J)(2) Refusal Of Request To Instruct On Lesser-Included Offense Governed By Federal Standard Of Prejudice.
An important point to keep in mind about Breverman is that its characterization of the failure to instruct as state error applies only to cases where the lesser was not requested. When the lesser instruction is requested it becomes a defense theory to which federal constitutional rights to due process, fair trial by jury and to present a defense apply. (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]; see also 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; 6th and 14th Amendments; see also PG VII(C)(14).) Hence, this heightens the importance of trial counsel being aware of and requesting instruction on lesser included offenses.
PG X(J)(3) Does Breverman Apply to Lessers Which Are Actually Elements?
At least in the case of lessers that involve elements such as voluntary manslaughter, the Breverman court’s analysis has not been addressed by the California Supreme court. Consider Kennard’s analysis of heat of passion (or lack thereof) as an element of murder. In her dissent in Breverman, Kennard said this analysis was not rejected by the majority –they said it wasn’t before them — so it’s still open for argument. If omitting instruction on heat of passion is omitting instruction on an element (and not just failing to pose the option of a lesser) then the federal standard of prejudice applies.
PG X(J)(4) Only One Juror Need Be Affected to Warrant Relief.
As to the actual harmless error analysis it should be kept in mind that to obtain a more favorable verdict it is only necessary for one juror to have voted differently. (See People v. Flood (98) 18 C4th 470 [76 CR2d 180] [question is whether any “rational juror, properly instructed, could have found [in favor of the defendant as to the omitted element]”; see also Duest v. Singletary (11th Cir. 1993) 997 F2d 1336, 1339, [“the essential question” under the Brecht [ ]standard is whether it was likely that “at least one juror” was influenced].)
PG X(J)(5) Making The Watson Standard More Objective By Utilizing “Indicia of a Close Case.”
The essential vice of any harmless error analysis is its subjectivity. The question of what is harmless and what isn’t will necessarily vary depending on who is answering the question. For example, the Attorney General will almost always assert that the evidence of guilt was overwhelming and, therefore, any error was harmless. In such cases it may be useful to attempt to quantify the analysis by reference to objective factors which contradict the assertion of overwhelming evidence. In FORECITE we call these factors “indicia of closeness” and they appear in the Practice Guide at PG X(F). A few examples are the following: length of deliberations/jurors expressions of deadlock (People v. Cardenas (82) 31 C3d 897, 907 [184 CR 165] [12 hours]; People v. Rucker (80) 26 C3d 368, 391 [162 CR 13] [9 hours]; People v. Woodard (79) 23 C3d 329, 341 [152 CR 536] [6 hours]); request for read-back, reinstruction, etc. (People v. Filson (94) 22 CA4th 1841, 1852 [28 CR2d 335]; People v. Hernandez (88) 47 C3d 315, 352-53 [253 CR 199]); request for explanation of instruction (People v. Mathews (94) 25 CA4th 89, 100 [30 CR2d 330]); inquiry about the meaning of a life sentence in a capital prosecution (Castro v. Oklahoma (10th Cir. 1995) 71 F3d 1502, 1516); prior hung jury (People v. Rivera (85) 41 C3d 388, 393 fn 3 [221 CR 562] (lead opinion) and 395 (Grodin, J. concurring); People v. Brooks (79) 88 CA3d 180, 188 [151 CR 606]); juror deadlock before reaching verdict (People v. Gainer (77) 19 C3d 835, 854-56 [131 CR 861]); verdict reflecting jury’s selective belief of defense evidence and refusal to convict on all counts (People v. Epps(81) 122 CA3d 691, 698 [176 CR 332]).
PG X(J)(6) Unwarranted Instruction On Lesser Is Not Reversible Error If It Was Favorable To Defendant.
Where the jury improperly convicts the defendant of a lesser offense, reversal may not be required if the error actually favored the defendant. (See People v. Lee (99) 20 C4th 47, 57 [82 CR2d 625]; see also FORECITE PG X(B)(7).)
PG X(J)(7) Standard Of Prejudice: Failure To Instruct On LIO—Conviction Of Greater Offense Does Not Cure Error In Failing To Instruct On Lesser Offense.
In convicting the defendant on the greater offense, the jury necessarily must find all elements of that offense. Hence, it can be argued that because the jury found all the elements of the greater offense, any failure to instruct on the lesser offense was cured by the greater verdict. (See e.g. Turrentine v. Mullin (10th Cir. 2004) 390 F3d 1181, 1192 [district court held that because the jury found the defendant guilty of first degree murder it did not need to consider the charge of second degree murder and the accompanying instructions].)
However, such an approach is inconsistent with the logic of the United States Supreme Court cases requiring a lesser offense instruction in cases where the facts so warrant. As the court has explained:
True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction–in this context or any other–precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.
(Keeble v. United States (73) 412 US 205, 212-13 [36 LEd2d 844; 93 SCt 1993, internal quotation marks omitted]; see also Beck v. Alabama (80) 447 US 625, 635 [65 LEd 2d 392; 100 SCt 2382] [“In the federal courts, it has long been beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater”] (internal quotation omitted); United States v. Chanthadara (10th Cir. 2000) 230 F3d 1237, 1257. This is especially true when a defendant faces a capital sentence. As the Court stated in Beck:
When the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense–but leaves some doubt with respect to an element that would justify conviction of a capital offense–the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction. (Beck, 447 US at 637-38.)
Beck thus holds that those facing capital punishment are entitled to have the jury instructed on a lesser included offense when the evidence so warrants.
PG X(J)(8) All Or Nothing Analysis.
ALERT: See discussion of People v. Breverman (98) 19 C4th 142 [77 CR2d 870] at PG X(J).
When the court fails to instruct upon a lesser included offense, the jury is left with an “unwarranted all-or-nothing choice.” (People v. Ramkeesoon (85) 39 C3d 346, 350 [216 CR 455].) Under such circumstances, the due process clauses of both the United States Constitution (14th Amendment) and the California Constitution (Article I, § 7) are implicated.
By providing the jury with an all-or-nothing choice, the failure to instruct on the lesser included offense makes it likely that “‘the jury … resolve[d] its doubts in favor of conviction.’” (Beck v. Alabama (80) 447 US 625, 634 [65 LEd2d 392], quoting from Keeble v. U.S. (73) 412 US 205, 208 [36 LEd2d 844]; People v. Wickersham (82) 32 C3d 307, 324 [185 CR 436]; Villafuerte v. Stewart (9th Cir. 1997) 111 F3d 616 [failure to instruct on lesser included of predicate felony murder was error but reversal not required because under the circumstances the jury was not required to find the defendant guilty of murder if he committed kidnapping.]
Additionally, even if the jury was not given an “all or nothing” choice (e.g., jury was instructed upon first degree murder and lesser includeds of second degree murder and voluntary manslaughter, the failure to instruct upon a lesser offense (e.g., involuntary manslaughter) is reversible if the jury convicted the defendant of the lowest available charge (e.g., voluntary manslaughter). (See People v. Ray (75) 14 C3d 20, 31-32 [120 CR 377].) [Additional discussion of this issue is available to FORECITE subscribers. Ask for Article Bank # A-11.]
In People v. Turner (90) 50 C3d 668 [268 CR 706], the Supreme Court distinguished Ramkeesoon and Wickersham and held that the failure to instruct on the lesser included offense was harmless under the facts of the case. The court concluded that there “appears no chance the jury was misled by an ‘all-or-nothing choice’” because the special circumstance instructions required the jury to confront the issue which was removed by the failure to instruct on the lesser included offense. (Turner 50 C3d at 692.)
The Turner court also suggested that by returning verdicts of first degree murder and death eligibility under the robbery murder special circumstance, the jury further indicated that its conviction of robbery, as opposed to theft was not a reluctant verdict based on an all-or-nothing choice. (Id. at 693.) Accordingly, under these circumstances the failure to instruct on the lesser included offense was not reversible error.
In Schad v. Arizona (91) 501 US 624 [115 LEd2d 555; 111 SCt 2491], the court suggested that reversal is not required absent a risk that the jury will convict “simply to avoid setting the defendant free ….” (115 LEd2d at 574-75.) People v. Lipscomb (93) 17 CA4th 564, 569-70 [21 CR2d 445], interpreted Schad to preclude reversal so long as any of several charged counts contains a lesser option. (17 CA4th at 571, fn 4.) However, because Lipscomb held that there was no right to the lesser instruction, this discussion of prejudice is merely dictum. And, it is inconsistent with the California reversal per se rule. (See People v. Wickersham (82) 32 C3d 307, 324-53 [185 CR 436].)
Moreover, even if this result is appropriate under the facts of Lipscomb, this may not always be so. For example, assume the defendant is charged with two counts — Count I includes a lesser offense and Count II does not. If the evidence fails to prove the defendant’s connection with Count I, then the lesser offense as to that count is not a real option unless the jurors are willing to convict the defendant of a crime which has not been proven by the prosecution. Providing the jury with such an unreasonable option in Count I would not cure the due process problems created by the all-or-nothing choice in Count II. Giving the jury three unreasonable options is no less conducive to an unfair result than giving it only two unreasonable options.
