by Thomas Lundy

(July 2000)

    A common defense strategy is to provide the jury with a lesser offense option so that it is not presented with an unwarranted "all or nothing" choice. (See Beck v. Alabama, 447 U.S. 625 (1980); People v. Barton,12 Cal.4th 186, 196 (1995).)

    However, recent decisions have purported to limit instruction on lesser offenses to those which meet the strict requirements for lesser included offenses. (See e.g., Carter v. United States, ____ US ____ [146 LEd2d 115; 120 SCt 1259] (6/12/00, No. 99-5716); Hopkins v. Reeves, 524 U.S. 88 (1998); People v. Birks, 19 Cal.4th 108 (1998) [overruling People v. Geiger, 35 Cal.3d 510 (84) which permitted instruction on lesser related offenses if requested].)

    Nevertheless, there are still strategies available for obtaining some form of instruction on non-included lessers. Several of these strategies are the subject of this article.

    The cases which limit lesser offense instructions to included offenses typically rely on statutes or rules. (E.g., Carter v. United States, ____ US ____ [146 LEd2d 115; 120 SCt 1259] (6/12/00, No. 99-5716) [construing FRCP 31].) These cases generally do not consider the fact that, in some circumstances, a lesser offense can be a defense or defense theory. (See Delaney v. Superior Court, 50 Cal.3d 785, 809 (1990); see also Brown v. Commonwealth, 555 S.W.2d 252, 257 (1977) ["Evidence suggesting that the defendant was guilty of a lesser offense is, in fact and in principle, a defense against the higher charge..."]; Sanborn v. Commonwealth, 754 S.W.2d 534 (1988) .) Nor have these cases been directly confronted with the argument that restriction of instruction on a lesser offense may be a restriction of the defendant’s federal constitutional right to present a defense.

    Neither Reeves nor Carter confronted the well-developed body of federal law establishing a federal constitutional basis under the 5th, 6th and 14th amendments to have the jury instructed on the theory of the defense. (See Mathews v. United States, 485 U.S. 58, 63 (1988) citing Stevenson v. United States, 162 U.S. 313 (1896) [refusal of voluntary manslaughter instruction in murder case where self-defense was primary defense constituted reversible error]; see also Keeble v. U.S., 412 U.S. 205, 213 (1973); U.S. v. Sotelo-Murillo, 887 F.2d 176, 178-79 (9th Cir. 1989); U.S. v. Lesina, 833 F2d 156, 159-60 (9th Cir. 1987); U.S. v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir. 1984); People v. Wharton, 53 Cal.3d 522, 570-72 (1991).)

    Hence, notwithstanding Reeves and Carter, it may still be argued that a statute or rule which precludes instruction on a non-included offense should not be applied when the result would be to remove the defense theory from the jury’s consideration. For example, in Sanborn v. Commonwealth (KY 1988) 754 SW2d 534, 549-50, the defendant in a rape case had a right to an instruction on the lesser related (non-included) 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. (Ibid.)

    In sum, the failure to instruct on a non-included offense when necessitated by the defense theory of the case may violate the defendant’s federal (5th, 6th and 14th Amendments) constitutional rights to due process, compulsory process and fair trial by jury. (See also Section D, below.)

    For additional briefing on this issue, click here.

    Even if the federal constitutional rights discussed above do not require an instruction allowing the jury to find the defendant guilty of a non-included lesser offense, instruction on the lesser may still be appropriate.

    For example, in U.S. v. Brown, 33 F.3d 1002 (8th Cir. 1994) the defendant testified that he did not participate in the robbery even though he attempted to retrieve the proceeds of the robbery after it had been completed. The court concluded that the accessory after the fact theory functions as a defense since the government did not charge Brown as an accessory after the fact. (Brown, 33 F3d at 1004.) Accordingly, the trial court erred in rejecting the defense instruction that if the jury concluded that the defendant was an accessory after the fact, it must acquit. Hence, even though accessory after the fact was not a lesser included of robbery (but see U.S. v. Dinkane, 17 F.3d 1192, 1200 (9th Cir. 1994), the defense theory instruction was required. (See also U.S. v. Rivera-Figueroa, 149 F.3d 1, 6-7 (1st Cir. 1998) [agreeing with Brown’s rationale but concluding that the defense theory instruction should not include a full definition of the elements of accessory after the fact liability].)

    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, 483 U.S. 44 (1987); Green v. Georgia, 442 U.S. 95 (1979); Davis v. Alaska 415 U.S. 308 (1974); Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388 U.S. 14 (1967).) 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. (Green v. Georgia, supra, 442 U.S. at 97; Chambers, supra, 410 U.S. at 295; Washington v. Texas, supra, 388 U.S. at 19-23.) Several federal circuit courts of appeal have also utilized such a test. (Pettijohn v. Hall, 599 F.2d 476 (1st Cir. 1979); Dudley v. Duckworth, 854 F.2d 967, 971-72 (7th Cir. 1988); Alicea v. Gagnon, 675 F2d 913, 923 (7th Cir. 1982); Perry v. Rushen, 713 F.2d 1447, 1452-53 (9th Cir. 1983).) Also, 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, 523 U.S. 303, 308 (1998).)

    Hence, if a statute or rule precludes instruction on a defense theory, it may implicate the federal constitution in cases where the defendant’s constitutional right to present a defense outweighs the policy interest furthered by the statute or rule.

    Under the California statutes (California Penal Code § 1009) the defense is arguably permitted to move for discretionary amendment of the charging document. (See "Motion For Discretionary Amendment Of Information To Include Uncharged Offenses (PC 1009)," Sections A-C.)

    The same strategy may be available in other jurisdictions where the judge has discretionary power to amend the charges after they are filed.

F.    The Jury Should 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 remains valid. (See Conrad, "Jury Nullification: The Lawyer’s Challenge," The Champion, Jan/Feb 2000, pp. 30-40.) And, it is the essence of the nullification doctrine that the jury bring the conscience of the community into the jury room. (Ibid.) 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 those crimes. 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.

    It is hoped that these ideas will provide food for thought for those attempting to deal with the adverse law regarding non-included offenses. Hopefully, strategies can be developed so that criminal defendants can effectively communicate their lesser offense defense theories to the jury.

RETURN TO TABLE OF CONTENTS

Brief Bank # B-842 (Re: Theories For Instruction On Lesser Related Offenses Notwithstanding Birks: Conflict Between Birks and the Right to Present a Defense.)

CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.

[Date of Brief: December, 1999]

NOTE: The text of the footnote appears at the end of the document.

PEOPLE OF THE STATE OF CALIFORNIA,            H000000

                    Plaintiff and Respondent,                            [Monterey Co.Super.Ct. No. SS 000000]

JOHN DOE,

                    Defendant and Appellant.

________________________________________/

From the Judgment of the Superior Court
of the State of California, County of Monterey

    Defense counsel requested that the trial court instruct the jury on accessory after the fact, Pen. Code, § 32, on the ground that appellant had admitted to every element of that offense in his testimony. The prosecutor objected to the instruction, and the trial court refused the defense request, citing People v. Birks, supra, 19 Cal.4th 108. (RT 621-26.) [Footnote 1] Defense counsel renewed his request for an accessory-after-the-fact instruction after the prosecutor argued to the jury that appellant did not need to be present at the shooting to be guilty as an aider and abettor. (RT 641-42; 654.) Defense counsel noted that the prosecutor’s argument had thereby put in issue the question of appellant’s guilt of accessory after the fact, by insinuating to the jury that it could find appellant guilty even if appellant had been sitting at home waiting for the shooters to come back after having borrowed his truck. The trial court again refused the defense request. (RT 654-56.) Defense counsel reiterated his request for an accessory-after-the- fact verdict form, which the trial court refused. (RT 711.) This refusal violated appellant’s right to an instruction on the defense theory of the case.

    Whether rooted in the Sixth Amendment rights to trial by jury and compulsory process, or in the due process clause of the Fourteenth Amendment, the constitution guarantees criminal defendants a right to present a defense, and therefore a right to a requested instruction on the defense theory of the case. (Mathews v. United States (1988) 485 U.S. 58, 63 ["As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor"]; United States v. Hicks (4th Cir. 1984) 748 F.2d 854, 857-58 [rights to trial by jury and due process abridged by failure to give requested instruction on defense theory of the case]; Richmond v. Embry (10th Cir. 1997) 122 F.3d 866, 871 [the right to present defense evidence arises under the Sixth Amendment right to compulsory process and the Fourteenth Amendment right to due process].)

    Refusal to give an instruction on the defense theory infringes Sixth Amendment and Fourteenth Amendment guarantees because it prevents the jury from considering defense evidence and from making findings of fact necessary to establish guilt. (United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1198; Whipple v. Duckworth (7th Cir. 1995) 57 F.3d 496, 423 [refusal to give defense instruction infringes right to a fair trial, amounts to a directed verdict against the defendant, and results in inadequate instructions on the applicable law].) As the Ninth Circuit explained, refusal to give an instruction on the defense theory effectively strips a defendant of the ability to present a defense:

"A failure to instruct the jury regarding the defendant’s theory of the case precludes the jury from considering the defendant’s defense to the charges against him. Permitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt. . . will entitle the defendant to a judgment of acquittal."

(Escobar de Bright, supra, 742 F.2d at 1201-1202.)

Currently, California case law distinguishes between "defense" instructions, "lesser included offense" instructions, and "lesser related offense" instructions, affording criminal defendants differing levels of entitlement to each type. "Defense" instructions generally refer to affirmative defenses, and "pinpoint" defense instructions refer to defenses that relate particular facts to a legal issue in the case. Trial courts are obligated to give any "defense" instruction supported by sufficient evidence that is consistent with the defendant’s theory of the case. Defendants are entitled upon request to an instruction that "pinpoints" the defense theory. (People v. Saille (1991) 54 Cal.3d 1103, 1118.)

Although lesser included offense instructions are not considered defense instructions, trial courts are obligated to instruct on any lesser included offense supported by substantial evidence, whether or not the defense requests the instruction. (People v. Breverman (1998) 19 Cal.4th 142.) After People v. Birks, supra, the case relied upon by the trial court to deny appellant’s requested instruction, trial courts have no obligation under state law to give lesser related offense instructions even if the defendant’s defense committed only a lesser crime related to the charged offense. A trial court, however, may give a "lesser related" offense instruction if both the defense and prosecution agree. (Birks, supra, 19 Cal.4th at 136, fn. 19.)

    Birks, supra, relied on Hopkins v. Reeves (1998) 524 U.S. 88, , 118 S.Ct. 1895, 1899, which considered uncharged lesser related offenses in the context of traditional lesser offense analysis set forth in cases such as Beck v. Alabama (1980) 447 U.S. 625. The issue was framed in terms of what alternatives were provided to the jury and whether the jury’s choices rendered the outcome sufficiently reliable. This analysis, employed in both Birks and Hopkins, does not explicitly address the fact that a lesser related offense can be a defense, and therefore, does not address whether failure to give such an instruction implicates the defendant’s right to instruction on the defense theory.

    Analogous United States Supreme Court case law indicates that California procedural rules must bow to the defendant’s right to instruction on the defense theory. The United States Supreme Court has consistently held that domestic rules of evidence may not be invoked to deny a defendant a right to a fair trial. (See e.g., Rock v. Arkansas (1987) 483 U.S. 44; Davis v. Alaska (1974) 415 U.S. 308.) The same should be true of domestic procedural rules that implicate a defendant’s Sixth and Fourteenth Amendment right to defense instructions, which allow the jury to actually consider whether the defense evidence does raise a reasonable doubt as to guilt.

    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. (See e.g., Chambers v. Mississippi (73) 410 U.S. 284, 295; Washington v. Texas (1967) 388 U.S. 14, 19-23.) 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 (1998) 523 U.S. 303, ___, 118 S.Ct. 1261, 1262.)

    As set forth above, in Part B, section 1, pp. 51-53, the Sixth and Fourteenth Amendment rights to instruction on the defense theory are well-established. Therefore, in a case such as the present, where the defendant admitted on the stand to assisting the perpetrators after the shooting, it is undeniable that the defendant has a strong and constitutionally-based interest in presenting the jury with the defense that his culpability was lesser than the crime charged. Indeed, United States v. Brown (8th Cir. 1994) 33 F.3d 1002, held that the defendant’s right to an instruction on the defense theory was infringed by the trial court’s failure to give an accessory after the fact instruction based on the defendant’s testimony. Since the defendant testified to culpability as accessory after the fact, "the accessory after the fact instruction function[ed] as a defense." (Id. at 1004.) In sum, even if in the interests of the accused are not so infringed as to violate constitutional guarantees when the evidence of accessory after the fact is weaker than in the present case, the defendant is certainly entitled to a lesser related offense defense instruction where, as here, the defendant takes the stand and admits to lesser culpability. Thus, the trial court’s failure to instruct on accessory after the fact violated appellant’s Sixth and Fourteenth Amendment rights.

    Defense counsel here requested both an instruction and a verdict form on accessory after the fact. As set forth above, in Argument III, Part B, the trial court is obligated to tailor defense instructions and give defense requested instructions, that "‘focus the jury's attention on facts relevant to its determination of the existence of reasonable doubt . . . .’" (People v. Carter, supra, 19 Cal.App.4th at 1252, quoting People v. Wright, supra, 45 Cal.3d at 1141, internal citations omitted.) The trial court could have tailored an instruction to inform the jury of the elements of accessory after the fact, without allowing the jury to return a verdict of guilt as accessory after the fact. This would have provided the jury with the legal basis for appellant’s defense. At the very least, appellant was entitled to a jury that understood the defense theory was that he was culpable only of a lesser crime, even if the jury could not return a verdict as to the lesser crime.

    Even if appellant had not been entitled to an accessory defense instruction upon request, he was entitled to it because the prosecutor implied in his argument that another instruction allowed for a finding of guilt as an aider and abettor, based solely on appellant’s actions after the shooting. (RT 641-42.) Even though there was absolutely no evidence of that appellant had the intent to assist the shooters prior to the shooting if he was not actually present during the shooting as the driver, the prosecutor relied on the instruction that appellant could be guilty as an aider and abettor even if he were not present at the scene of the crime. This argument opened the door to the issue of appellant’s culpability based on his testimony regarding his actions after the shooting, and under People v. Birks, supra, 19 Cal.4th 136, fn. 19, the trial court should have found the prosecutor impliedly placed the issue of accessory after the fact into question, and given the instruction.

    Appellant contends that the distinction made by Birks between "defense instructions" and "lesser related offense instructions" is a distinction without a difference from the standpoint of the defendant’s right to present a defense, when the defendant’s sole defense is an admission to a related offense and a denial of the crime charged. (Cf. Bashor v. Risley (9th Cir. 1984) 730 F.2d 1228, 1240 [failure to give lesser included offense instruction can violate a defendant’s right to adequate instruction on his or her theory of the defense]; People v. Barton, supra, 12 Cal.4th at 199 [lesser included offenses often resemble defenses, because the defendant generally puts on evidence to support the theory].) A lesser related offense instruction relates the law to the evidence and informs the jury where the charged crime ends -- what is not the charged crime -- just as a "defense" instruction does. For example, a self-defense instruction tells the jury under what circumstances the law categorizes a homicide as justifiably in self-defense rather than as manslaughter or murder. A lesser related offense instruction performs the same function, telling the jury under what circumstances the law defines conduct as a crime other than the one charged. Thus, when the defendant’s entire defense is that he committed a lesser related offense, and his attorney requests a lesser related offense instruction, a trial court’s refusal to give the instruction infringes the same federal constitutional rights to the same extent as a refusal to give a "defense" instruction.

    Here, solely because appellant’s defense fell into the category of "lesser related offenses," the trial court withheld an instruction on the defense theory. As set forth above in Argument IV, no instruction set forth the defense theory that if appellant did not have the intent to assist the perpetrators until after the shooting, he was liable only as an accessory after the fact, not before the fact. Consequently, the refusal to give the instruction infringed appellant’s right to present a defense. The jury could not pass on the crucial question whether appellant’s actions amounted to accessory after the fact rather than aiding and abetting, as appellant contended they did in his own testimony. The refusal to give the accessory instruction rendered appellant’s testimony essentially ineffectual, because the jury could not consider the law that supported the very assertion he made -- his culpability in the crime was at most that of an accessory.

    Because the trial court’s refusal to instruct on accessory after the fact violated appellant’s Sixth and Fourteenth Amendment rights, the Chapman v. California, supra, 386 U.S. at 24 standard of review for prejudice is applicable. Appellant has set forth prejudice from the failure to instruct on the timing requirement of aiding and abetting in Argument IV, Part C, and the same prejudice applies here. Moreover, the prosecution cannot prove beyond a reasonable doubt that the error was harmless, because the prosecution’s case was extremely weak. The prosecution had no eyewitness identification evidence and no evidence that appellant aided and abetted the shooting if he did not drive the truck to the scene. It had only a shred of evidence that there actually was a driver -- Ms. D’s testimony that she heard an engine almost simultaneously with hearing the shots. (RT 29-34.) Nevertheless, the prosecution relied on an argument that appellant need not be present at the shooting to be found guilty, thereby exhorting the jury to find appellant guilty based on his own admission as an accessory rather than on any prosecution evidence that he assisted the shooters as a driver. (RT 642.) Therefore, if the trial court had instructed the jury on appellant’s defense theory, it is likely that the jury would have concluded the prosecution failed to prove beyond a reasonable doubt that appellant aided and abetted the shooters and found him guilty as an accessory.

    Wherefore, for the foregoing reasons, appellant respectfully requests that this Court reverse his convictions and remand for a new trial; or in the alternative, that this Court strike the vicarious personal use enhancements, and remand for a new trial.

Return to Ideas "For Obtaining Instruction On Non-Included Lesser Offenses"

FOOTNOTE:

Footnote 1: The trial court initially believed that appellant did not fully admit to knowing that the two perpetrators had committed a crime. After further argument by defense counsel, the trial court conceded appellant "may have" admitted that he was aware a crime had occurred. (RT 621-26.)

Return To Text

Motion Bank # M-3006 (Re: The Defendant Should Be Permitted To Move For Amendment Of The Information Under PC 1009 To Add Uncharged Offenses] / LRO II(K) Even If Granting A Defense Motion To Amend Violates Separation Of Powers Principles, Federal Constitutional Principles Require The Court To Consider A Discretionary Motion To Amend By The Defendant.)

NOTE: The text of the footnote appears at the end of the document.

Attorney for John Doe

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ____________ 

PEOPLE OF THE STATE OF CALIFORNIA,

                                    Plaintiff,

vs.

JOHN DOE,

                                    Defendant.

____________________________________/

    Defendant hereby moves, pursuant to Penal Code § 1009, for an order amending the information to include a charge of ________ in violation of _______. This motion will be based on this notice of motion, the attached points and authorities in support of the motion, all of the records and files in this case and such other evidence as may be presented in support of this motion at the time of the hearing.

                                                                            Dated: Respectfully Submitted, 

                                                                            ___________________________
                                                                            Attorney for Defendant
                                                                            JOHN DOE

Attorney for John Doe

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ____________ 

PEOPLE OF THE STATE OF CALIFORNIA,

                                    Plaintiff,

vs.

JOHN DOE,

                                    Defendant.

____________________________________/

    After arraignment an information may be amended, in the court's discretion, pursuant to Penal Code § 1009 which provides, in pertinent part:

The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, ... unless the substantial rights of the defendant would be prejudiced thereby. An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.

    This language has been interpreted to permit discretionary amendment of the information to add additional charges provided they were proven at the preliminary hearing and the defendant is not prejudiced. (See e.g, People v. Brown (1973) 35 Cal.App.3d 317, 322 [110 Cal.Rptr. 854].)

    While most reported cases involved a motion for amendment by the prosecution, Penal Code § 1009 does not expressly limit the statute to prosecutorial motions. And, this statutory language has been interpreted to include amendments initiated upon the court's own motion. (See People v. Walker (1947) 82 Cal.App.2d 196, 198 [185 P.2d 842] [amendment on court's own motion under former Penal Code § 1008 containing language similar to Penal Code § 1009]; see also People v. Castillo (1915) 28 Cal.App. 190 [151 P. 746]; People v. Sherman (1962) 211 Cal.App.2d 419, 424 [27 Cal.Rptr. 353].)

    Moreover, by giving the trial court discretionary power over whether to allow post-information amendment by the prosecution, Penal Code § 1009 evinces a legislative intent that the court exercise substantial discretion over post-information charging decisions. The defendant should have just as much right to ask the court to exercise this discretion to amend the information as does the district attorney.

    Nothing in Birks (People v. Birks (1998) 19 Cal.4th 108 [77 Cal.Rptr.2d 848]) precludes the defendant from moving to amend the information pursuant to Penal Code § 1009. Birks overruled People v. Geiger (1984) 35 Cal.3d 510 [199 Cal.Rptr. 45] because Geiger granted the defendant absolute power to gain instruction on lesser related offenses. This linchpin of Birks' analysis was stressed throughout the opinion:

"The Geiger rule, however, is calculated to produce just such an unfair one-way street where lesser related offenses are at issue. On the one hand, the defendant's right to notice of the charges limits the circumstances in which a jury, over the defendant’s objection, may receive instructions on lesser offenses which are not necessarily included in those to which a plea was entered. On the other hand, if a lesser offense is related to the charge, as Geiger defines that term, Geiger gives the defendant an absolute entitlement to such instructions on request, regardless of notice or prejudice to the People, and even over their objection. ¶ Given the parties' differing trial burdens and responsibilities, the consequent tactical imbalance is significant and inappropriate." [Emphasis added.] (Birks, 19 Cal.4th at 127-28.)

"Geiger thus affords the defense a superior right at trial to determine whether the jury will consider a lesser offense alternative, or instead will face an all-or-nothing choice between conviction of the stated charge and complete acquittal. Such a rule is neither just nor rational." (Birks, 19 Cal.4th at 128.)

"If the prosecutor declines to amend to allege a lesser related offense on which its case has not focused, the defendant can demand that the lesser offense be placed before the jury anyway, and the prosecutor is powerless to object. ¶ This inequality of rights and burdens is thus no mere abstraction. Instead, it directly contradicts the principles of neutrality and mutual fairness which, to a substantial degree, have informed and justified the rule requiring instructions on lesser necessarily included offenses." [Emphasis added.] (Birks, 19 Cal.4th at 129-130.)

"Yet because a right to instructions such as that articulated in Geiger is absolute where it exists at all, the margin of error in ruling on a demand for lesser related offense instructions is small." (Birks, 19 Cal.4th at 131.)

"Hence, separation of powers difficulties may arise, as they did in Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789]), from a constitutional interpretation that requires a judicial officer, acting at the defendant's unilateral insistence, to add lesser nonincluded offenses which the prosecution has chosen to withhold in the exercise of its charging discretion, and to which it objects." [Emphasis added.] (Birks, 19 Cal.4th at 136.)

    Hence, Birks does not preclude the argument advanced here that the defendant may move for discretionary amendment of the information, under Penal Code § 1009. In fact, the analysis of Birks supports defendant's contention. Birks emphasized the "inequality of rights and burdens" under Geiger which allowed the defendant to demand instruction on a lesser related but merely allowed the prosecutor to seek discretionary amendment. (Birks, 19 Cal.4th at 129-30.) Yet to allow the prosecutor to request discretionary amendment and to deny the same right to the defendant would violate the "equality of rights" upon which Birks so heavily relied. (See also People v. Moore (1954) 43 Cal.2d 517, 526 [275 P.2d 485] ["[t]here should be absolute impartiality as between the people and the defendant in the matter of instructions ...."].) In other words, if the prosecution can obtain amendment of the charges in the absence of prejudice to the defendant, the defendant be able to obtain amendment provided there is no prejudice to the prosecution.

    C.    Separation of Powers Principles Should Not Preclude Judicial Amendment of the Information.

    There are several reasons why separation of powers principles (Calif. Const. Art I, § 3) do not limit the trial court's discretion to amend the information to include an uncharged offense.

    First, as discussed above, the statutory language has been interpreted to permit the trial court to amend the information on its own motion. (See People v. Walker (1947) 82 Cal.App.2d 196, 198 [185 P.2d 842].)

    Second, while Birks discussed separation of powers, it did not "resolve the separation of powers issue ...." (Birks, 19 Cal.4th at 135.) Moreover, as discussed above, Birks considered the issue in terms of whether the defendant should be able to "dictate" whether to include a lesser charge (Id., at 134) not whether the trial court may, in its discretion, grant a defendant's request to amend the information under Penal Code § 1009. [Footnote 1]

    Third, allowing amendment of the charges in the absence of prejudice to the prosecution is a much different proposition than forcing uncharged offenses on the prosecution in situations where there is prejudice. If the trial court, in its discretion concludes that there is no prejudice and that amendment would further the interests of justice, such amendment should be considered reasonably within the broad powers of judicial discretion. For example, assume the defendant is charged with a substantive crime but the evidence also provides a basis for concluding that he/she was only an accessory after the fact. If the prosecution does not charge the accessory after the fact offense, and if the trial court is powerless to do so on its own motion, then the prosecution will have unilaterally dictated an all-or-nothing trial in which the jury can only convict of the greater offense or acquit. (Accessory after the fact is not an lesser included offense [People v. Markus (1978) 82 Cal.App.3d 447 [147 Cal.Rptr 151].) Such a trial would not be conducive to a fair and reliable jury verdict if the jury concluded that the defendant was an accessory after the fact. In that event the jury would have to choose between convicting the defendant of the greater crime which he/she did not commit or letting a person who committed a crime (i.e., accessory) go free.

    Reasonably, whether such a trial should be submitted to the jury in the posture of an all-or-nothing choice should not be unilaterally dictated by the prosecution but should be decided by the trial court after fair and objective weighing of all the circumstances.

    Procedures which unfairly favor the prosecution may also violate the federal constitution. (Wardius v. Oregon (1973) 412 U.S. 470, 473 fn. 6 [37 L.Ed.2d 82; 93 S.Ct. 2208].) In Wardius the U.S. Supreme Court warned that "state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant's ability to secure a fair trial" violate the defendant's due process rights under the Fourteenth Amendment. (See also Izazaga v. Superior Court (1991) 54 Cal.3d 356, 372-77 [285 Cal.Rptr. 231]; cf. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1180-92 (1960).) Noting that the Due Process Clause "does speak to the balance of forces between the accused and his accuser," Wardius held that "in the absence of a strong showing of state interests to the contrary" ... there "must be a two-way street" as between the prosecution and the defense. (Wardius, 412 U.S. at 474; see also People v. Birks, supra, 19 Cal.4th at 129 [rules regarding instruction on lesser offenses should be governed by principles of "neutrality and mutual fairness"]; People v. Moore, supra, 43 Cal.2d 517.)

    Hence, even if the separation of powers clause of the California Constitution is interpreted to preclude a defense request for amendment of the information, this would violate the defendant's federal constitutional rights. If the defendant's theory of the case includes an uncharged offense, it would be fundamentally unfair to deny the defense an opportunity to request instruction on that theory (by constructive amendment) while at the same time allowing the prosecution to request amendment to conform with its theory of the case. (See People v. Feld (1906) 149 Cal. 464, 469 [86 P. 1100] ["Each party has an absolute right to instruction based on its own theory of the case if there is any evidence to support it. [Citations.]"].) Such an imbalanced procedure will promote unreliable and unfair verdicts in violation of the defendant's federal constitutional rights to due process and fair trial by jury by allowing the prosecution to unilaterally dictate that the jury be given an all-or-nothing choice in situations where such a choice will skew the jury in favor of guilt in order to avoid setting a guilty defendant free. Moreover, denying the defense an opportunity to request amendment to encompass a defense theory would violate the defendant's federal constitutional right to present a defense. (5th, 6th and 14th Amendments; see e.g., Mathews v. United States (1988) 485 U.S. 58, 63 [99 L.Ed.2d 54; 108 S.Ct. 883].)

    Penal Code § 1009 vests with the trial court the ultimate power and discretion to decide whether the information should be amended to add an uncharged offense. Nothing in the statute states that this discretion can only be exercised at the behest of the prosecution. To the contrary, the cases have held that the statutory discretion to amend may be exercised by the court on its own motion. Hence there should be no limitation of this discretion simply because the amendment is suggested by the defendant. Moreover, the principles of equality and balance between litigants enunciated in Birks and the constitutional principles discussed above compel that Penal Code § 1009 be interpreted to allow the defense to request discretionary amendment of the information.

                                                                                Dated: Respectfully Submitted,

                                                                                ___________________________
                                                                                 Attorney for Defendant
                                                                                 JOHN DOE

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Footnote 1: A defense request for instruction on a lesser related offense is, in effect, a motion to amend the information. (See People v. Francis (1969) 71 Cal.2d 66, 75 [75 Cal.Rptr. 199]; People v. Toro (1988) 47 Cal.3d 966, 976 [254 Cal.Rptr. 811]; see also People v. Williams (1982) 316 N.W.2d 717, 719 [412 Mich. 711] [where the court held: "We regard the defendant's action in prevailing upon the trial court to instruct the jury on the charge of accessory after the fact to have been the equivalent of a motion to amend the information * * *. [The] trial court agreed to so instruct the jury, thus effectively amending the information"].)

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