Birks and Breverman: New Rules and New Strategies for Lesser Offenses

(December 1998)

Note: All references to "FORECITE" refer to FORECITE California, authored by Thomas Lundy and available from James Publishing. Go to: http://jamespublishing.com/books/fc.htm

    In People v. Birks (98) 19 C4th108 [77 CR2d 848] and People v. Breverman (98) 19 C4th 142 [77 CR2d 870] the California Supreme Court has fundamentally changed the rules regarding lesser offenses. These new rules impose greater burdens on trial and appellate counsel to be aware of the issues and to make strategic choices that can and will benefit their clients. This article discusses some of the ideas, issues and strategies that might emerge in the aftermath of Birks and Breverman.

    Birks overruled People v. Geiger(84) 35 C3d 510 [199 CR 45] because it is "unfair" to the prosecution to allow instruction on a lesser related offense upon which they have not had an opportunity to present evidence. However, regardless of whether a lesser instruction is given, the prosecution still has a full and fair opportunity to prove the charged offense. The only impact of the lesser offense — whether related or included — is to provide a third option, short of acquittal, for situations where the jury is uncertain that the defendant should be convicted of the charged offense. Hence, the only "unfairness" to the prosecution is that it does not have an opportunity to overcome the jury’s uncertainty as to the charged offense by the coercive impact of an all-or-nothing choice.

    Nevertheless, the high court has spoken and the question is what potential issues does Birks open up. The following are a few ideas:

1. Conflict Between Birks and the Right to Present a Defense

    Birks 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. To the extent that the specific principle reflects a defense theory there is a state and federal due process right to affirmative instruction on the theory. (5th 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 [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.)

    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, 308 [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 as violative of the right to present a defense.

2. 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.

    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 conscious 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.

4. 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.)

5. 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.

    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].)

    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. However, 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 lesser related instruction will be available.

    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.

1. Breverman Only Applies Where No Request Was Made at Trial

    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 apply. (See case cited above.) Hence, this heightens the importance of trial counsel being aware of and requesting lesser included offenses.

2. The United States Supreme Court Has Not Resolved the Question of Whether Due Process Requires Sua Sponte Instruction on Lesser Included Offenses

    Beck was a capital case which held under the 8th Amendment that instruction on lesser included offenses is required sua sponte. However, 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 the 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 Woratzeck v. Ricketts(9th Cir. 1987) 820 F2d 1450, 1457; 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.

    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. 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. NOTE: This issue may be addressed in People v. Rios REV GTD (9/2/98, S055790) 63 CA4th 1501 [75 CR2d 184].

    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].)

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]).

    To be sure, Birks and Breverman substantially alter the law of lesser offenses to the prosecution’s benefit. There is now more pressure than ever on the trial attorney who can no longer count on the trial court to give lesser includeds sua sponte because the difficult and unfederalizable Watson standard will apply. And, lesser related offenses will have to be considered earlier to determine whether they somehow can be integrated into a defense theory and/or whether the District Attorney should be approached for a stipulation. But this added pressure could also have an important spin-off benefit if it results in earlier consideration of instructional options. Now, more than ever, jury instruction strategy should be considered early and integrated with the essential defense theories in order to make the necessary investigation, pre-trial motions, evidentiary showing, instruction requests and argument to the jury.

    "Litigators who desire a special ... instruction are less likely to get it if they simply wait for the end of the case and then request it. The best means for persuading a judge [to give a special instruction] is to wage a case-long campaign of education. Pre-trial motions, offers of expert testimony, and the cross-examination process should all have as their subsidiary goal the acceptance of a request for [a special] instruction." (See Loftus and Doyle, Eyewitness Testimony (2d ed.) § 12.01, pp. 358-59; see also Riordan and Gillette, California Criminal Law, (CEB, 1986), § 32.3, p. 671.)

    By increasing the importance of approaching instructions in this manner, Birks and Breverman may ultimately do more good than harm.

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