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VOLUME 12 - CHAPTER 267
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Chapter 267: Nonincluded Lesser Offenses (Lesser Related Offenses / Cognate Lesser Offenses)

    267.1 Nonincluded Lesser Offenses: General Rules
    267.2 Instruction On Uncharged Nonincluded Lesser Offense Over Objection Violates Due Process
    267.3 Right To Present A Defense As Basis For Instruction On Nonincluded Lesser Offense
    267.4 The Defendant Should Be Permitted To Move For Discretionary Amendment Of The Charging Document To Add Uncharged Offenses
    267.5 Federal Constitutional Principles Require The Court To Consider A Discretionary Motion To Amend By The Defendant
    267.6 The Jury Should At Least Be Informed About The Uncharged Related Offenses So It Can Meaningfully Represent The Conscience Of The Community
    267.7 Explanation That Jury Has No Option Other Than Conviction Of Charged Offense Or Acquittal Due To Prosecution's Charging Decision

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VOLUME 12 - CHAPTER 267

PRACTICE NOTE: Most jurisdictions preclude the defendant from receiving instruction on a lesser offense which is not necessarily included in the charged offense. (See e.g., Hopkins v. Reeves (1998) 524 US 88, 99 [118 SCt 1895; 141 LEd2d 76]; People v. Birks (CA 1998) 19 C4th 108 [77 CR2d 848].) However, the analysis generally does not expressly address the fact that, in some circumstances, a lesser offense can be a "defense." (See Delaney v. Superior Court (CA 1990) 50 C3d 785, 809 [268 CR 753].) Hence, restriction of instruction on a lesser offense may be a restriction of the defendant's right to present a defense. (See FORECITE National™ 267.3 [Right To Present A Defense As Basis For Instruction On Nonincluded Lesser Offense].)

    Conviction of an uncharged offense over the defendant's objection may violate due process. (See FORECITE National™ 267.2 [Instruction On Uncharged Nonincluded Lesser Offense Over Objection Violates Due Process].)

    See also FORECITE National™ 265.3.8 [Defendant Must Object To Instruction On Non Included Lesser Offense].

See generally, FORECITE National™ 305.12.3 [Lesser Related Offenses/Nonincluded Lesser Offenses].

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  VOLUME 12 - CHAPTER 267

PRACTICE NOTE: A conviction for an uncharged nonincluded offense implicates a defendant's due process right to notice. (People v. Toro (CA 1989) 47 C3d 966, 973 [254 CR 811].)

    It is fundamental under due process principles that a defendant cannot be convicted of a charge unless he has received notice from the accusatory pleading that he may be called upon to defend against the charge. (People v. Geiger (CA 1984) 35 C3d 510, 526 [199 CR 45]; People v. Wolcott (CA 1983) 34 C3d 92, 101 [192 CR 748]; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:15 [Charging The Jury- Theories Not Contained In Indictment] p. 58 (West, 1999) [the right of an accused to be tried and convicted of only those crimes and upon those theories charged in the indictment is fundamental and non-waivable].)

    Where an offense is neither charged nor necessarily included in the alleged offense, the trial court lacks jurisdiction to convict a defendant of the lesser related offense. (People v. Lohbauer (CA 1981) 29 C3d 364, 368-69 [173 CR 453].) However, the error may be waived if no objection is made. (See FORECITE National™ 265.3.8 [Defendant Must Object To Instruction On NonIncluded Lesser Offense].)

    See also FORECITE National™ 300.2 [Due Process: Notice].

    See also FORECITE National™ Chapter 40 [Variance Between Pleading And Proof].

See generally, FORECITE National™ 305.12.3 [Lesser Related Offenses/Nonincluded Lesser Offenses].

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  VOLUME 12 - CHAPTER 267

PRACTICE NOTE: Most jurisdictions preclude the defendant from receiving instruction on a lesser offense which is not necessarily included in the charged offense. (See e.g., Hopkins v. Reeves (1998) 524 US 88, 99 [118 SCt 1895; 141 LEd2d 76]; People v. Birks (CA 1998) 19 C4th 108 [77 CR2d 848].) However, the analysis generally does not expressly address the fact that, in some circumstances, a lesser offense can be a "defense." (See Delaney v. Superior Court (CA 1990) 50 C3d 785, 809 [268 CR 753].) 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 a 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 5th, 6th and 14th amendments to have the jury instructed 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. (See Mathews v. United States (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54] citing Stevenson v. United States (1896) 162 US 313 [16 SCt 839; 40 LEd 980] [refusal of voluntary manslaughter instruction in murder case where self defense was primary defense constituted reversible error]; see also Keeble v. U.S. (1973) 412 US 205, 213 [93 SCt 1993; 36 LEd2d 844]; 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; People v. Saille (CA 1991) 54 C3d 1103, 1120 [2 CR2d 364]; People v. Wharton (CA 1991) 53 C3d 522, 570-72 [280 CR 631]; People v. Wright (CA 1988) 45 C3d 1126, 1141-43 [248 CR 600].) Hence, if the defense theory is that the defendant was guilty of a lesser related offense, failure to instruct on the related offense is effectively a failure to instruct on the defense.

    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 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.

    Similarly, in U.S. v. Brown (8th Cir. 1994) 33 F3d 1002, 1003, the defense theory was that the defendant should be convicted of accessory after the fact rather than the substantive charge of robbery. 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. This is because the government did not charge Brown as an accessory after the fact." (Brown, 33 F3d at 1004.) Accordingly, the trial court "should have given the jury the proffered accessory after the fact instructions." (Ibid.)

    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 (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37]; Green v. Georgia (1979) 442 US 95 [99 SCt 2150; 60 LEd2d 738]; Davis v. Alaska (1974) 415 US 308 [94 SCt 1105; 39 LEd2d 347]; Chambers v. Mississippi (1973) 410 US 284 [93 SCt 1038; 35 LEd2d 297]; Washington v. Texas (1967) 388 US 14 [87 SCt 1920; 18 LEd2d 1019].) 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 US at 97; Chambers, supra, 410 US at 295; Washington v. Texas, supra, 388 US at 19-23.) Several federal circuit courts of appeal have also utilized such a test. (Pettijohn v. Hall (1st Cir. 1979) 599 F2d 476; Dudley v. Duckworth (7th Cir. 1988) 854 F2d 967, 971-72; Alicea v. Gagnon (7th Cir. 1982) 675 F2d 913, 923; Perry v. Rushen (9th Cir. 1983) 713 F2d 1447, 1452-53.) 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 US 303, 308 [118 SCt 1261; 140 LEd2d 413].)

    In sum, if a domestic statute precludes instruction on a defense theory, the statute may implicate the federal constitution.

See generally, FORECITE National™ 305.12.3 [Lesser Related Offenses/Nonincluded Lesser Offenses].

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PRACTICE NOTE: Under the California statutes (California Penal Code § 1009) the defense should be permitted to move for discretionary amendment of the charging document.

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

MOTION AVAILABLE: For a "Motion For Discretionary Amendment Of Information To Include Uncharged Offenses (California Penal Code § 1009)," Sections A-C, click here. [Motion Bank # M-3006].

See generally, FORECITE National™ 305.12.3 [Lesser Related Offenses/Nonincluded Lesser Offenses].

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  VOLUME 12 - CHAPTER 267

MOTION AVAILABLE: For a "Motion For Discretionary Amendment Of Information To Include Uncharged Offenses (California Penal Code § 1009)," Section D, click here.  [Motion Bank # M-3006].

See generally, FORECITE National™ 305.12.3 [Lesser Related Offenses/Nonincluded Lesser Offenses].

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PRACTICE NOTE: It is the jury's duty, as representatives of the people of a defendant's community, to listen impartially to the evidence presented by the prosecution and then decide guilt. (See e.g., J.E.B. v. Alabama (1994) 511 US 127, 131 [114 SCt 1419; 128 LEd2d 89]; Powers v. Ohio (1991) 499 US 400, 404 [111 SCt 1364; 113 LEd2d 411]; Batson v. Kentucky (1986) 476 US 79, 84-86 [106 SCt 1712; 90 LEd2d 69] [establishing protections to ensure juries are not selected based on impermissible exclusionary practices].)

    To fulfill its role as the conscience of the community, 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.

    See also FORECITE National™ 120.3.3.3 [Comment Or Instruction To Jury Regarding Three Strikes].

See generally, FORECITE National™ 305.12.3 [Lesser Related Offenses/Nonincluded Lesser Offenses].

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  VOLUME 12 - CHAPTER 267

RATIONALE: The prosecution, through its charging power, has control over whether or not the jury will have the option of convicting the defendant of a related but not necessarily included offense. As a result the prosecution may put the defendant at a disadvantage by forcing the jury to make an all-or-nothing choice when the defendant is obviously guilty of some wrongdoing. Therefore, to avoid unjust and unreliable verdicts, it may be appropriate to inform the jury why it has no other option than acquittal if the charged offense has not been proven.

POINTS AND AUTHORITIES: 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 (CA 1973) 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 (CA 1950) 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 FORECITE National™ 270.2.12 ["Guilt Or Innocence" Comparison Undermines Presumption Of Innocence].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 6.7; 7.13].

See generally, FORECITE National™ 305.12.3 [Lesser Related Offenses/Nonincluded Lesser Offenses].

    _______________________ (insert related offense, e.g., accessory after the fact) is an offense which is related to the charge of _______________________ (insert charged offense). However, because the prosecution did not charge the ____________________ offense you may not find the defendant guilty of it.

    If you find that the defendant committed _________________ (related offense) but not _____________________ (charged offense) you must acquit because it was the prosecution's choice that you only be permitted to choose between conviction of ______________________ (charged offense) and acquittal.

[Source: FORECITE National™.]