Lesser Included/Related Offense
Category > Lesser Included/Related Offense
The trial court erred by instructing the jury it could not consider the lesser included offenses unless it found defendant not guilty of the charged crimes. In response to the jury’s question about how to address the lesser included offenses, the trial court erroneously instructed it could not consider the lesser included offenses unless it found defendant not guilty of the charged crimes. People v. Kurtzman (1988) 46 Cal.3d 322, and CALCRIM 3517 leave it to the jury to determine the order in which it considers each crime. id: 26922
The trial court erred by failing to instruct on nonforcible oral copulation of a minor as a lesser included offense of forcible oral copulation of a minor.Defendant was convicted of multiple counts of forcible oral copulation of a minor and forcible oral copulation of a minor in concert. However, the trial court prejudicially erred by failing to instruct on the lesser included offense of nonforcible oral copulation of a minor.id: 24357
The trial court erred by failing to instruct on sexual battery as a lesser included offense of forcible sexual penetration. Defendant was charged with sexual penetration by force. The trial court erred by failing to instruct on sexual battery as a lesser included offense given the evidence adduced at the preliminary hearing, which should be considered in applying the accusatory pleading test. The error required reversal. id: 24332
The trial court erred by failing to instruct on the misdemeanor offense of throwing a substance at a vehicle as a LIO of the charged felony offense.Defendant was convicted of throwing a substance at a vehicle in violation of Vehicle Code section 23110, subd.(b). However, the trial court erred by refusing to instruct on the misdemeanor offense described in section 23110, subd.(a) as a lesser included offense. The latter refers to throwing things at cars on a highway, and the former refers to “such vehicles” which means vehicles on a highway. Evidence also supported a conviction of the misdemeanor offense, and the instructional error was prejudicial where there was a reasonable probability the jury would have convicted defendant of the misdemeanor if properly instructed. id: 23842
A defendant may not be convicted of two separate, uncharged, lesser related offenses of a single charged greater offense.The jury acquitted defendant of the charged attempted premeditated murder count but convicted him of two lesser related offenses - mayhem and assault with a deadly weapon. However, a defendant may not be convicted of two separate, uncharged lesser related offenses of a single charged greater offense.id: 23527
The jury improperly convicted defendant of two lesser included offenses for each count in the information.The jury acquitted defendant of both counts of kidnap for ransom, but convicted him of two lesser included offenses (felony attempted extortion and misdemeanor false imprisonment) as to each count. However, the jury could only properly have convicted defendant of one lesser included offense for each count of kidnapping for ransom.id: 23196
The trial court erred by instructing that theft by false pretense was a lesser included offense of robbery.Theft by false pretense was not a lesser included offense of robbery under the elements or accusatory pleading test as applied to the felony information. The trial court therefore erred by instructing on theft by false pretense and allowing the jury to return a verdict on that offense. The error was prejudicial because it allowed the jury to convict defendant of an offense of which he had no reasonable notice. id: 23105
The misdemeanor assault convictions which were lesser included offenses of the charged aggravated assaults, were time barred by the statute of limitations.Defendant was charged with five counts of assault with a deadly weapon, but on those counts the jury convicted him of the lesser included offense of misdemeanor assault. However, because the conduct forming the basis of those counts occurred more than one year before the Information was filed, the one year statute of limitations for misdemeanors barred the convictions. Moreover, defendant did not forfeit the statute of limitations defense by failing to raise the issue in the trial court and by acquiescing in the lesser included offense instruction that permitted a conviction of the time-barred misdemeanors.id: 17187
Failure to instruct on the lesser offense of recklessly causing the fire was harmless in the arson case where the jury also found defendant exploded a destructive device with the intent to injure or destroy property.Defendant was convicted of arson of a structure in violation of Penal Code section 451, subdivision (c). He argued the court erred in failing to instruct on recklessly causing a structure to be burned (section 452, subdivision (c)) as a lesser included offense. However, by also convicting defendant of section 12303.3, the jury found defendant had exploded a destructive device with the specific intent to injure or destroy property. The issue of recklessness was therefore necessarily resolved against him and any error in omitting the lesser included offense instruction was harmless. For the same reason the court did not err in refusing to instruct that willfully and maliciously mean an intent to burn the structure.id: 10479
The trial court erred by refusing to instruct that negligent discharge of a weapon was a lesser included offense of shooting at an occupied building.Defendant was convicted of shooting at an occupied building pursuant to Penal Code section 246. However, the trial court erroneously refused to instruct on the lesser included offense of grossly negligent discharge of a firearm under section 246.3. Expiration of the limitations period on the lesser offense was an insufficient basis for refusing the instructions because defendant was willing to waive the limitations period defense. Moreover, substantial evidence showed the lesser, but not the greater offense was committed.id: 18372
The court prejudicially erred in failing to instruct on the lesser included offense of battery without injury on a probation officer.Defendant was convicted of battery with injury on a deputy probation officer in violation of Penal Code section 243, subd. (c)(1). However, the trial court prejudicially erred in failing to instruct sua sponte on the lesser included offense of battery without injury on a probation officer in violation of section 243, subd.(b)where there was evidence that would have supported the lesser charge.id: 19208
Conviction of trespass was invalid because defendant did not consent expressly or impliedly to the uncharged lesser related offenses.Defendant was convicted of trespass and vandalism as lesser related offenses of the charged offense of residential burglary. Defendant did not personally or through defense witnesses present a defense that effectively introduced the lesser offense. His failure to object to findings of guilt of the lesser offenses did not support a reasonable inference of consent to conviction of the lesser related offenses.id: 13230
Trial court erred in instructing the jury it could consider the lesser offense only if it first unanimously agreed defendant had not committed the greater offense.The trial court erred in instructing the jury that it could consider the lesser charge only after it had reached the unanimous opinion that he was not guilty of the greater offense. The error was harmless where a juror's comments made it clear the jury was not misled by the court's comments.id: 13251
The court erred in failing to instruct on simple battery as a lesser related offense of the charged sex counts.Defendant argued the trial court erred in refusing to instruct the jury on misdemeanor battery as a lesser related offense to the counts charged (Penal Code sections 288, subdivision (b), 288a, subdivision (c) and 289 subdivision (a)). Battery fit precisely with the defense theory that defendant had a bad night and while he was jealous of his girlfriend, he battered the girlfriend's child of another marriage. Moreover, battery as well as the other sex offenses required proof of force or violence. The error was harmless where questions from the jurors during deliberations established that in reaching a verdict on the sex offenses, the jury put aside the initial battery.id: 13245
Court prejudicially erred in failing to instruct on the lesser offense notwithstanding that it was inconsistent with the defense where the evidence supported the instruction.Appellant argued the court erred in refusing to instruct the jury on assault with a deadly weapon as a lesser related offense of the charge of attempted murder. Appellant's theory throughout trial was alibi which was inconsistent with a theory that he should be convicted of a lesser offense. However, the instruction was requested based on the fact that there was substantial evidence the crime committed was no more than assault with a deadly weapon due to the weakness of the evidence of appellant's intent. It was prejudicial error for the court to deny the instruction on assault with a deadly weapon.id: 13235
Court erred in failing to instruct on trespass as a lesser-related offense of burglary where excessive Valium consumption may have indicated an absence of the intent to steal.Appellant was charged with residential burglary. The trial court erred in refusing to instruct on the lesser related offense of trespass. The contested issue was intent and if appellant entered without an intent to steal she committed trespass, not burglary. Evidence of excessive Valium consumption indicated an absence of intent to steal. However, the factual question of an intent to steal at the time of the residential entry was necessarily resolved adversely to appellant and therefore, the instructional error was harmless.id: 13234
ADW conviction acted as an implied acquittal of the attempted voluntary manslaughter charge where the jury was deadlocked on that charge.The jury found defendant not guilty of attempted manslaughter. It then convicted him of the lesser related offense of assault with a deadly weapon. The court declared a mistrial on the attempted manslaughter. Defendant argued the court erred in permitting the jury to return a verdict on the assault before deciding guilt or innocence on the lesser included offense of attempted voluntary manslaughter. However, the verdict amounted to an implied acquittal of the manslaughter offense. The People may choose to forego their right to have a decision on a principal or greater offense, in favor of a verdict on the lesser offense.id: 13228
The filing of an information tolls the period of limitations as to lesser related offenses which are based on the same conduct as that which underlies the charged offense.Defendant was convicted of forcibly raping a prostitute. The trial court erred in failing to instruct on the lesser related offense of engaging in prostitution in violation of section 647, subd. (b). The court, believing the statute of limitations had expired on the misdemeanor offense of prostitution, refused to so instruct. However, the filing of an information tolls the period of limitations as to lesser related offenses which are based on the same conduct as that which underlies the charged offense. The failure to instruct on the lesser related offense was prejudicial and required reversal of the rape conviction.id: 13246
Trial court had a sua sponte duty to instruct on lesser included offenses to the alternative charged offense of sale of cocaine.The trial court had a sua sponte duty to instruct on possession for sale and simple possession as lesser included offenses of sale of cocaine, given the alternative nature of the charged offense and the facts of the case. The evidence on the sales theory was not insufficient but would have supported the lesser included offense instructions. However, the legal error did not require reversal since it may be presumed that, if the jury found the evidence of sale questionable, it instead turned to the alternate transportation charge which was overwhelmingly supported by the record.id: 10771
Court erred in withholding the accessory verdict after giving an accessory instruction but the error was invited by defendant who convinced the court to withhold the instruction.Defendant was charged with first degree murder. He requested and received an instruction on accessory after the fact but then convinced the court to withhold an accessory verdict form. During deliberations the jurors asked whether they could consider a lesser crime such as accessory. Defendant encouraged the court to submit an advisory verdict form in which defendant could be found guilty as an accessory but the court refused. The trial court erred in withholding the accessory verdict after giving the accessory instruction. However, the failure to provide the accessory verdict could not have been used by providing an advisory verdict as requested by the defense. Moreover, defendant is barred from challenging the court's failure to provide the accessory verdict since defendant invited the error by convincing the court to withhold the verdict.id: 12646
The trial court erred by failing to instruct on the effect of reasonable doubt on the choice between the greater and the lesser offense.When the defendant is charged with both a greater offense and a lesser included offense, the trial court must instruct the jury if there is a reasonable doubt as to whether defendant was guilty of the greater or the lesser offense, it could only convict him of the lesser offense. The error in failing to so instruct was harmless given the overwhelming evidence of guilt on the greater offense.id: 13248
Failure to instruct on lesser included offense is subject to Watson harmless error standard.The sua sponte duty to instruct on lesser necessarily included offenses extends to every theory of such an offense that finds rational support on the evidence. However, the California Supreme Court abrogated the standard of near automatic reversal for this form of error as set forth in <i>People v. Sedeno</i> (1974) 10 Cal.3d 703. Instead, the Court determined reversal is not required unless the record discloses that the error produced a miscarriage of justice - the standard set forth in <i>People v. Watson</i> (1956) 46 Cal.2d 828.id: 16092
Robbery conviction was reversed where defendant may not have formed the intent to steal until after the victim was dead and the court failed to instruct on theft as an L.I.O.There was evidence that defendant (who was convicted of capital murder) did not form the intent to steal until after the victim was dead. The trial court erred in failing to instruct on the lesser included offense of theft, and the robbery conviction was therefore reversed.id: 10123
Conviction of the lesser included offense of gross vehicular manslaughter without insisting on a verdict as to murder precluded retrial of murder.Gross vehicular manslaughter while intoxicated is a lesser offense necessarily included in murder. Because the prosecution did not insist that the jury be instructed that it could not return a verdict as to the lesser included offense unless and until it had acquitted defendant of murder, the jury was permitted to convict him of gross vehicular manslaughter while intoxicated without reaching a verdict as to murder. In these circumstances the conviction of the lesser included offense operated to bar retrial of the greater offense.id: 11982
Court erred in failing to instruct on theft as a lesser included offense of robbery where defendant testified he decided to steal from the victim after the victim was dead.Defendant's testimony that he killed in response to the victim's homosexual advances and only thereafter decided to take property, was substantial evidence that defendant did not steal by means of force or fear. The court therefore erred in failing to provide instructions and verdict forms which would permit convictions and findings based on theft rather than robbery. However, the error was harmless because the jurors had been emphatically told not to convict defendant of first degree felony murder or find the robbery-murder special circumstance time if they reasonably believed that he killed for reasons unrelated to theft and stole only as an incidental afterthought.id: 10418
When applying the accusatory pleading test to determine lesser included offenses, the trial court may not book beyond the actual pleading for evidence.Defendant was convicted of second degree murder following a drunk driving accident (a Watson murder). He argued the trial court erred by refusing to instruct on gross vehicular manslaughter as a lesser included offense because the evidence adduced at the preliminary hearing supplied the evidence to support the instruction even if those elements were absent from the pleading itself. However, the law provides that when applying the accusatory pleading test to determine lesser included offenses, courts do not look beyond the actual pleading.id: 26040
The trial court had no duty to instruct on assault with a firearm as a lesser included offense of murder.Defendant argued the court had a sua sponte duty to instruct on conspiracy to commit assault with a firearm as a lesser included offense of murder based on the uncharged conspiracy instructions given the jury. However, defendants were not charged with conspiracy to commit murder, much less with a conspiracy to commit murder by use of a firearm. And there was no substantial evidence in the record to support a finding that the defendants were guilty of assault with a firearm but not murder.id: 25817
Invited error doctrine applied where counsel said the defense did not want lesser included offense instructions.While discussing jury instructions in the felony assault case, defense counsel emphasized it was not seeking a lesser included offense instruction on simple assault. Defendant, on appeal, argued the trial court erred by not instructing on the lesser included offense. However, defense counsel invited the error and the court refused to review the issue on appeal.id: 26664
Defendant charged with kidnapping was properly convicted of attempted kidnapping even though the latter is not a lesser included offense of the former.Attempted kidnapping is not a lesser included offense of completed kidnapping, but Penal Code section 1159 authorizes conviction for an uncharged attempt to commit a charged offense even if the attempt is not necessarily included in the charged offense. id: 26376
The trial court did not err at defendant’s capital trial by refusing to instruct on a lesser included offense to an auxiliary charge.Defendant argued the trial court erred at his penalty phase trial by refusing to instruct on a lesser included offense of firearm discharge. However, the relevant instruction involved a lesser offense to an auxiliary charge that was distinct from the first degree murder conviction.id: 26202
Gross vehicular manslaughter while intoxicated was not a lesser included offense of Watson murder under the accusatory pleading test.Defendant argued the trial court erred by failing to instruct the jurors on gross vehicular manslaughter while intoxicated as a lesser included offense of implied malice murder under the accusatory pleading test. However, based on the amended information, which incorporated the statutory definition of the charged murder without referring to any particular facts, gross vehicular manslaughter while intoxicated is a lesser included offense of “Watson murder.”id: 26087
The trial court did not err by failing to instruct sua sponte on voluntary manslaughter where the evidence did not show defendant could have been convicted of manslaughter but not murder.Defendant was convicted of first degree murder. He argued the trial court erred by failing to instruct sua sponte on voluntary manslaughter based on heat of passion and imperfect self-defense. However, defendant confessed to an intentional killing, and under no view of the evidence could the jury have found he was guilty of voluntary manslaughter but not murder. id: 25167
At the retrial on the second degree murder charge, the court did not err in refusing to advise the jury that defendant had been convicted of the lesser related offense of gross vehicular manslaughter at the first trial.Defendant was convicted of second degree murder in connection with a vehicular death. At his first trial he was convicted of gross vehicular manslaughter while intoxicated, and the jury deadlocked on the second degree murder charge. At the retrial on the murder charge, the trial court did not err by refusing to advise the jury that defendant had been convicted of gross vehicular manslaughter, a lesser related offense, in his first trial.id: 24447
The lesser related arson offense was prosecuted in a single case with the greater charge for Kellett purposes where the court instructed on the offense erroneously believing it to a be lesser included offense.Defendant was convicted of arson of an inhabited structure under Penal Code section 451, subd.(b). The Court of Appeal found the evidence was insufficient to support the conviction and reversed it. Double jeopardy precluded a retrial. The question was whether the Kellett rule requiring all offenses involving the same act be prosecuted in a single case prohibited retrial of the lesser related offense of arson of property under section 451, subd.(d). The prosecution did not charge arson of property but instructed on it erroneously believing it was a lesser included offense. The court instructed the jury to consider the offense only if it acquitted defendant of the greater offense, so the jury never considered it. Under the circumstances, arson of property was prosecuted in a single proceeding with the other arson charge, so Kellett did not prohibit retrial on that offense.id: 24352
The trial court did not err by failing to instruct on unlawful intercourse with a minor as a lesser included offense of forcible rape.Defendant was convicted of multiple counts relating to sexual misconduct involving an underage girl. He argued the trial court had a duty to instruct on statutory rape as a lesser included offense of forcible rape. However, unlawful intercourse with a minor is not a lesser included offense of forcible rape even under the accusatory pleading test. id: 24358
Supreme Court finds failure to preserve claim that lesser-included offense instruction should have been given.On appeal from his capital murder conviction, defendant claimed that the trial court erred in failing to instruct the jury that it curl find him guilty of lesser-included homicide offenses. In support of that argument, he cited three state cases and he relied primarily on a non-capital case. The state appellate court rejected the argument by citing a prior state non-capital decision. The Supreme Court granted certiorari to determine whether a state court erred in refusing to allow the jury to find defendant guilty of lesser-included offense. However, the Court decided to reach that issue because it found that defendant had not preserved a federal claim in the state courts.id: 20125
Defendants were properly convicted of two lesser included offenses neither of which was included in the other.Defendants were charged with kidnapping for ransom, which is punishable by life in prison. The jury instead convicted them of two lesser included offenses - felony attempted extortion and misdemeanor false imprisonment, which resulted in a four year term. Contrary to the Court of Appeal’s finding, the defendants were properly convicted of two lesser included offenses because they had notice of these offenses and neither was lesser included of the other.id: 23655
The trial court is not required to instruct on a lesser related offense even where the prosecutor agrees to it. Defendant was convicted of the second degree murder of a child, and assault on a child causing death, in violation of Penal Code section 273ab. He argued the trial court erred by refusing to instruct on the lesser related offense of child abuse under section 273a, subd.(a), because the prosecutor and defense counsel agreed the instruction could be given. However, there is no requirement that the trial court instruct on a lesser related offense, even if the parties agreed to have it given.id: 22476
Evidence did not support an aiding and abetting suicide as a lesser related offense to murder instruction where defendant claimed his wife died as a result of a mutual suicide pact that he survived.Defendant argued defense counsel rendered ineffective assistance by not requesting an instruction on aiding and abetting a suicide as a lesser related offense to murder. Because counsel did not request the lesser related offense instruction the record was silent as to whether the prosecutor would have consented to it. But the evidence did not support the instruction even accepting defendant’s claim that his wife was killed as part of a mutual suicide pact that he happened to survive. He claimed they choked each other simultaneously with ties. But by pulling the tie he had placed around her neck defendant committed murder. The “single instrumentality” exception did not apply where the neckties each used were separate instruments. id: 21560
The Birks rule overruling Geiger which permitted lesser related offense instructions, applied retroactively to defendant's capital case.The trial court did not err by denying defendant's request for an instruction on the crime of unlawful mutilation of human remains, as defined in Health and Safety Code section 7052 as a lesser offense related to the charged attempted rape. Defendant argued he relied on the law in Geiger in presenting his defense and the court should preclude retroactive application of People v. Birks (1998) 19 Cal.4th 108, which overruled the law allowing lesser related offense instructions. However, defendant did not show he would have prepared his defense differently if he had known he was not entitled to the requested instruction, and Birks therefore applied retroactively.id: 20270
Withdrawal of first degree murder from the jury with instructions to consider second degree did not violate Stone or Kurtzman.Defendant argued the trial court's withdrawal of first degree murder from the jury with the instruction to consider second degree violated the rules of Stone v. Superior Court (1982) 31 Cal.3d 503, and People v. Kurtzman (1988) 46 Cal.App.3d 322, dealing with juror disagreement as to lesser or greater charges. However, since the charge of first degree murder had in effect been dismissed from the case and jeopardy had attached, there was no violation of Stone or Kurtzman.id: 13255
The trial court did not err in refusing to instruct on an uncharged lesser-related offense that was not agreed to by the prosecution. Defendant was charged with robbery. He argued the trial court erred in denying his request for an instruction on receiving stolen property. However, the prosecutor objected to such an instruction and California law does not permit a court to instruct on an uncharged lesser-related crime unless agreed to by the prosecution. Defendant was not entitled to the instruction based on the failure to instruct on a defense theory - that he received the property he knew to be stolen but that he did not steal it.id: 19312
Possession of cocaine base for sale is not a necessarily included offense of selling cocaine base.Defendant argued she was improperly convicted for both selling the cocaine rock in count one and possessing the same rock for sale in count two, a necessarily included offense. However, the sale of cocaine does not require possession as one can be convicted as an aider and abettor or a broker. Neither was the possession for sale necessarily included under the charged allegations test where the information simply charged selling cocaine base in count one, and possession of cocaine base for sale in count two.id: 18862
Defense counsel invited the error in the failure to instruct on the lesser included offense of second degree murder by persuading the court not to give the instruction.Defendant argued the trial court erred in not instructing on second degree murder as a lesser included offense of first degree murder. While a court must instruct on lesser included offenses supported by the evidence whether or not the parties want it to do so, defense counsel invited the error in this case by persuading the court not to give the instruction.id: 18276
Jeopardy did not attach following a discharge of the jury where the jurors did not notify the court there was an acquittal as to the greater charge, and in light of the instructions given, no further questioning was necessary.The jury was discharged after they reported a deadlock as to two counts. Prior to the discharge the court provided verdict forms on the greater and lesser included offenses, and instructed the jurors to return a verdict of acquittal on the greater offense of first degree murder before deciding whether defendant was guilty of a lesser included offense. Contrary to defendant's claim the failure to return any verdict form did not show an acquittal as to the greater offense. The court was not required to further question the jury on this matter. Moreover, jeopardy did not attach during the second proceedings where the new judge bifurcated the case and first asked the jurors to make findings on the effect of the earlier mistrial for purposes of determining the double jeopardy issue regarding the greater offenses. Impaneling the new jury did not cut off the prosecutor's right to appeal the jeopardy ruling. Since it was defendant who sought dismissal, he waived the argument that jeopardy attached as a result of the second proceedings.id: 17386
The court did not err in failing to instruct on assault with a deadly weapon as a lesser included offense as assault with a semiautomatic firearm where there was no dispute that the gun was a semiautomatic and defendant used the gun as a bludgeon.Defendant was convicted of several offenses including assault with a semiautomatic firearm under Penal Code section 245, subd.(b). He argued the court erred by failing to instruct on the lesser included offense of assault with a deadly weapon under section 245, subd.(a)(1). However, defendant pistol-whipped the victim with the gun. There was no dispute that it was a semiautomatic firearm. Therefore, the jury could not have found that defendant committed only the lesser offense. The court did not err by failing to instruct on assault with a deadly weapon.id: 17111
Court was not required to instruct on theft as an LIO of robbery where robbery was not independently charged but was the predicate offense for the special circumstance.The trial court was not required to instruct on the lesser included offense of theft when, as here, the defendant was not charged independently with the greater offense (robbery) but the greater offense was the predicate offense for the special circumstance (murder in the commission of a robbery)id: 16916
Supreme Court overrules Geiger and finds denial of request to instruct on lesser related offense was not erroneous.Defendant was convicted of burglary after his request for instructions on trespass as a "lesser related offense" was refused. The Court of Appeal reversed the conviction ruling the denial of the instruction was prejudicial under <i>People v. Geiger</i> (1984) 35 Cal.3d 510. However, the California Supreme Court reversed the judgment of the Court of Appeal and overruled <i>Geiger</i>. The Court determined the <i>Geiger</i> rule can be unfair to the prosecution, and actually promotes inaccurate fact finding because it gives the defendant a superior trial right to seek and obtain conviction for a lesser uncharged offense whose elements the prosecution has neither pled nor sought to prove.id: 16094
Trial court has no duty to instruct on "lesser included enhancements."Defendant argued the trial court should have instructed sua sponte on being armed with a firearm (Penal Code section 12022, subdivision (a)) because it is a lesser included enhancement of personally using a firearm (section 12022.5, subdivision (a)). However, a trial court's sua sponte obligation to instruct on lesser included offenses does not encompass an obligation to instruct on "lesser included enhancements."id: 16095
State may retry defendant on an uncharged lesser related offense following acquittal on the greater charge and a hung jury on the lesser charge where defendant requested an instruction on the lesser charge.The state may retry a defendant on an uncharged lesser related offense following an acquittal of the charged offense and a deadlocked jury on the lesser offense where the defendant requested that the jury be instructed on the lesser offense.id: 15827
Court did not err in failing to instruct sua sponte on theft as an LIO of robbery absent evidence of a lack of intent to steal prior to the use of force or fear.Defendant argued the trial court erred in failing to instruct sua sponte on theft as a lesser included offense of robbery. However, there was no error since there was no evidence that defendant did not form any intent to steal until after he used force or fear to effect the taking.id: 15412
Lesser offense must be relevant to the issue of whether the defendant is guilty of the greater one to justify a Geiger instruction.For a lesser uncharged offense to be closely related to a greater charged offense within the meaning of <i>People v. Geiger</i> (1984) 35 Cal.3d 510, requiring the court to instruct the jury on a lesser related offense, evidence of the lesser offense must be relevant to the issue of whether the defendant is guilty of the greater one. As evidence of defendant's voluntary intoxication was not relevant to establish whether he was guilty of the charged offense of assault with a deadly weapon, the offenses of driving while under the influence and reckless driving were not closely related to the assault. Thus, the trial court did not err by refusing to instruct on these other offenses.id: 13241
Possession of stolen property and vehicle taking were committed long after the robbery and therefore were not lesser related offenses to the charged robbery.Defendant was convicted of robbery. He argued the court prejudicially erred in refusing requested instructions on possession of stolen property (Penal Code section 496) and illegal taking and driving of a motor vehicle (Vehicle Code section 10851), as lesser related offenses to the robbery. However, these offenses which occurred at a different time and place than the charged robbery, and which did not comprise any part of the armed assault on the victims were not closely related, and therefore not lesser related offenses to the charged robbery.id: 13242
Speculation was an insufficient basis upon which to require the trial court to give an instruction on theft as a lesser included offense of robbery.Defendant argued the trial court erred in failing to instruct on theft as a lesser included offense of robbery. He claimed the evidence did not preclude a finding of certain factual scenarios that would have supported a conviction of theft. However, there was no evidence to support the theory that the underlying offense, if committed by defendant, was other than robbery. Speculation is an insufficient basis upon which to require the trial court to give an instruction on a lesser included offense.id: 13243
Testimony of an accomplice pursuant to a plea bargain which was admissible at the guilt phase was equally admissible at the penalty phase.Prosecution witness agreed to testify against defendant in return for a reduced sentence of his own. The plea bargain provided only that the witness was to tell the truth. Defendant argued that while such testimony may have been admissible at the guilt phase it was not sufficiently reliable to support imposition of the death penalty. However, the analysis which supports admission of such testimony at the guilt phase applies equally to the penalty phase.id: 13244
The record did not establish the jury believed it had to return a verdict on the greater offense before considering the lesser offense.The jury was instructed under CALJIC 8.75 that it must agree defendant is not guilty of first degree murder before finding him guilty or not guilty of second degree murder. Nothing in the record suggested that the jury believed it must return a verdict on the greater offense before considering or discussing the lesser offense.id: 13247
There is no sua sponte duty to modify accomplice instructions to provide the corroboration requirement applies to out-of-court statements.Accomplice's tape recorded statement was subject to the corroboration requirement of Penal Code section 111. However, the trial court had no sua sponte duty to modify the instruction on accomplice corroboration to provide that they applied to the witness' out-of-court as well as in-court statements.id: 13249
Trial court did not err in failing to instruct on an unrequested lesser related offense.In defendant's prosecution for attempted murder the trial court did not err in failing to instruct sua sponte that assault with a deadly weapon was a lesser related offense.id: 13250
Trial court may instruct on related offenses requested by the prosecution and defense.When a defendant requests a misdemeanor assault instruction, defining a lesser related offense, and the prosecutor, over defendant's objection, requests a felony assault instruction, also defining a related offense, the trial court may properly give both instructions.id: 13252
Unlawful vehicle taking and ADW are not lesser included offenses of robbery.Defendant argued that Penal Code section 654 precluded convictions of assault with a deadly weapon and unlawful vehicle taking because they were lesser included offenses of the robbery. However, because robbery can be committed without ADW, and since property other than a vehicle may be taken in a robbery, these crimes are not lesser included offenses so as to bar their conviction along with the robbery. The information charged robbery in the statutory language only without specifically alleging the manner in which it was committed or describing the property taken. The determination as to whether a lesser offense is necessarily included must be based solely on the statutory language of that offense, and not on evidence adduced at trial. Convictions of the offenses were therefore proper although the sentences were properly stayed.id: 13253
Where a witness' actions were subject to a variety of interpretations her accomplice status was properly left to the jury.Defendant argued the trial court erred in failing to instruct the jury that the witness was an accomplice as a matter of law. The witness stated that she would participate in the murder and suggested the appropriate weapon, but then moved to Texas and did not participate. Because her actions were subject to a variety of interpretations her accomplice status was properly left to the jury.id: 13254
A defendant may not have the jury instructed on lesser included offenses of which he cannot legally be convicted.At defendant's first trial he was convicted of kidnapping and robbery, but the jury hung as to the more serious murder and kidnapping for robbery counts. At the conclusion of the second trial, defendant requested that in addition to instructions on the two offenses tried, the jury should be instructed on the lesser included offenses of which he had already been convicted. However, the trial court properly refused to instruct on robbery and kidnapping as a defendant may not have the jury instructed on lesser included offenses of which he cannot legally be convicted.id: 13226
A trial court must instruct regarding lesser included offenses despite a defendant's objection.Defendant was charged with attempted murder, but was convicted of assault with a deadly weapon as a lesser included offense. He argued the court erred in giving the lesser included offense instructions even though he specifically requested that no such instructions be given. The evidence supported the giving of the instructions and they were properly given despite their alleged inconsistency with the defendant's chosen theory of the case (self-defense). Moreover, while a defendant may exercise some control over the trial court's instructions regarding inconsistent defenses,a defendant has no authority to exclude instructions regarding lesser included offenses.id: 13227
Auto tampering instruction as a lesser included offense of auto burglary was not required where defendant speculated the perpetrator did not have the intent to steal.Defendant was convicted of auto burglary under Penal Code section 459. He argued the trial court erred by failing to instruct on the lesser included offense of auto tampering. The evidence established the car window was smashed and there were power tools inside the car. Such evidence did not raise a question as to whether the perpetrator had the intent to steal. Defendant's speculation that the perpetrator just wanted to break the window and may not have seen the tools did not constitute evidence that the offense was less than that charged. There was no sua sponte obligation to instruct on auto tampering.id: 13229
Court did not err in instructing the jury to deliberate on the offenses in any order it wished, but it must determine guilt according to a certain order.Defendant argued his due process rights were compromised by an instruction constraining the jury's freedom to deliberate in the order it thought most prudent. However, by instructing the jury that it could deliberate in any order it wished but must determine guilt according to a certain order, the trial court correctly guided the jury.id: 13231
Court did not err in refusing to instruct on auto theft as a lesser related offense where the theft was factually unrelated to the robbery with which he was charged.Defendant was convicted of robbery and argued the court erred in refusing his requested instruction on the unlawful taking of an automobile (Vehicle Code section 10851) as a lesser related offense. While there was some evidence of an auto theft, it was wholly separate from the charged robbery and took place, if at all, at a time and place different from the robbery. While the unlawful taking of an auto may legally be a lesser related offense of robbery it need also factually be part of the greater offense to necessitate the instruction.id: 13232
Court did not err in ruling over defendant's objection it would instruct on ADW as a lesser related offense where it also instructed on simple assault as a lesser related offense at defendant's request.Defendant was charged with robbery. He requested and received lesser related offense instructions on simple assault. However, the court also instructed, over defendant's objection, on the lesser related offense of felony assault with a deadly weapon. Defendant was convicted of ADW, and argued the court erred in instructing on the offense over his objection. However, there was no error because when the defendant chose to request instructions on a lesser related offense he did not have control over which lesser related offenses could be presented to the jury.id: 13233
Court was not required to give cautionary instructions as to informant testimony.The trial court was under no duty to give cautionary instructions on informant testimony notwithstanding that such instructions were properly given as to accomplice testimony.id: 13236
Court's instructions on lesser included offenses did not effectively impose an acquittal-first rule.The court instructed that the jury could find defendant not guilty of murder but guilty of the lesser included offense of voluntary manslaughter. It also declared that it could return partial verdicts, and related findings, as to homicide, including first degree murder, second degree murder and voluntary manslaughter. The law states that a court may restrict a jury from returning a verdict on a lesser included offense before acquitting on the greater offense but may not preclude it from considering lesser offenses during its deliberations. The instructions given did not violate that rule by effectively imposing a rule that the jury must acquit of the greater offense before even considering the lesser offenses.id: 13237
Flight instruction was not applicable at penalty phase where guilt was no longer in issue.Defendant argued the flight instructions given at the guilt phase improperly permitted the jury to rely upon evidence of his nonviolent escape attempt as an aggravating factor in reaching its penalty verdict. However, the flight instruction given at the guilt phase was not applicable at the penalty phase since guilt was no longer in issue.id: 13238
Invited error doctrine prevented reversal where the court failed to instruct on lesser included offenses at defendant's request.Defense counsel requested the court to give only the felony-murder instruction as a matter of trial tactics. The obligation to instruct on lesser offenses exists even where a defendant objects to their being given. However, the doctrine of invited error will operate to preclude a defendant from gaining reversal on appeal because of such an error made by the trial court at the defendant's request.id: 13239
Jury need consider the issue of a lesser included offense only if it concludes that the defendant is not guilty of both alternative primary offenses.Where alternative primary offenses are charged, it is the obligation of the jury first to decide guilt or innocence of those offenses. The jury should be instructed that it need reach the issue of the lesser included offense of one of the primary offenses only if it concludes that the defendant is not guilty of both of the primary offenses.id: 13240
Trial court lacks the statutory authority to modify a verdict to a lesser related offense.A trial court considering a Penal Code section 1181 motion to modify a verdict on the ground that it is contrary to the evidence is limited to three options specified in the statute: 1) It can set aside the conviction and grant a new trial; 2) It can deny the motion and enter judgment on the verdict reached by the jury; or 3) It can modify the verdict to a <U>lesser included</U> offense. The trial court in the instant case exceeded the statutory authority of section 1181 when it modified the jury's residential burglary verdict to the <U>lesser related</U> offense of receiving stolen property.id: 12135
A request for an instruction on a lesser related offense is properly denied when the offense is time-barred.Defendant argued his due process rights were violated when the trial court refused an instruction on a time-barred lesser related offense even though he was willing to waive the statute of limitations. However, the trial court properly ruled that defendant could not waive the statute-of-limitations on the misdemeanor offense. Moreover, a request for an instruction on a lesser related offense is properly denied when the offense is time-barred.id: 12061
Possession of narcotics for sale is not necessarily included in the offense of transportation of narcotics and conviction of both is proper.Defendant argued that she could not be convicted of both possession of cocaine for sale and transportation of cocaine when the possession is incidental to or a necessary part of the transportation. However, one can transport drugs without necessarily being in possession of the drugs. The offense of transportation thus can be committed without necessarily committing the offense of possession. Defendant was properly convicted of both transportation of cocaine and possession of cocaine for sale.id: 10758
Court did not err in entering convictions of both burglary and petty theft occurring during the burglary.Defendant argued the trial court erred in entering convictions of both burglary and receiving stolen property. However, theft is not a lesser included offense of burglary since burglary can be committed without committing a theft. The court properly entered a judgment of conviction of burglary and petty theft committed during the burglary and then stayed punishment for the petty theft pursuant to Penal Code section 654.id: 10340
Court properly refused to instruct on trespass as a lesser related offense of burglary based on the mistake-of-fact defense.Defendant was convicted of burglary. He argued the court erred by refusing to instruct the jury as to unauthorized entry as a lesser related offense. However, since the mistake of fact defense negated the requisite intent for both offenses, if a jury determined defendant was innocent of the burglary, it would also have acquitted him of the trespass offense. He did not dispute that he entered the garage and took the fishing gear. He argued he mistakenly thought he had permission. It would have been impossible to find him innocent of theft and yet guilty of trespass. The court properly determined the lesser related instruction as to trespass was not required.id: 10344
Court did not err in failing to instruct on lesser offenses to section 288 where the murder conviction may have been based on a felony murder theory.Defendant argued his murder conviction - which, if decided on a theory of felony murder, required a conclusion that he violated or attempted to violate Penal Code section 288 - the court erred in failing to instruct on lesser included offenses of section 288, namely misdemeanor child molest under section 647(a) and contributing to the delinquency of a minor under section 272. However, there was no evidence that a lewd touching was absent but that all elements of section 647(a) (lewd conduct without touching) were present. Moreover, section 272 is not a lesser included offense to section 288 and no instruction was required.id: 10198
Court did not err in giving lesser included offense instruction on second degree murder, over defendant's objection, where evidence supported the instruction.Defendant argued the trial court erred by instructing the jurors sua sponte on the lesser included offense of second degree murder. However, since the inferences to be drawn from the circumstantial evidence of a brutal beating and execution equally support either premeditated or unpremeditated killing, the trial court properly instructed the jury on the full range of possible verdicts supported by the evidence.id: 10200
Court did not err in refusing to instruct on accessory after the fact as a lesser related offense to murder.Defendant argued the trial court erred in failing to instruct the jury on the offense of accessory after the fact as a lesser related offense to murder. However, the crime of accessory is distinct from the underlying crime. Although there is overlap between the statutory elements of the crime of murder and the crime of accessory, the offenses are not closely related for purposes of the lesser related offense instruction.id: 10203
Defendant charged with murder is not entitled to a grand theft person instruction as a lesser included offense notwithstanding the robbery special circumstance allegation.A jury convicted defendant of first degree murder and found true a robbery special circumstance. Defendant argued the trial court erred in refusing to give a grand theft person instruction as a lesser included offense. However, defendant was charged only with murder, not robbery. The robbery special circumstance allegation had no effect on what offenses were included in the murder charge nor did reliance on a felony murder theory. The included offense doctrine applies only to charged offenses. Because grand theft person is not a lesser included offense of murder the court had no sua sponte duty to instruct on grand theft person. Moreover, the lesser <U>related</U> offense doctrine likewise did not mandate the requested instruction because grand theft person is not closely related to the charged offense of murder.id: 10218
Supreme Court upholds refusal to instruct on lesser included theft offense because second-degree murder instruction was given.Defendant was arrested with the murder victim's vehicle and other belongings. At his trial for first degree murder, the court refused his request for an instruction on theft as a lesser included offense, but charged the jury on second-degree murder. He was convicted of first-degree murder and sentenced to death. In an opinion written by Justice Souter, the Supreme Court affirmed, distinguishing <i>Beck v. Alabama</i>, 447 U.S. 625 (1980), which struck down a state statute prohibiting lesser-included offense instructions in capital cases. The court ruled that in this case the second-degree murder instruction insured the verdict's reliability, because it would be irrational to assume that the jury chose capital murder rather than second degree murder as its means of keeping a robber off the streets. Justices White, Marshall, Blackmun and Stevens dissented.id: 10170
Lesser offense instructions were not required in felony murder case despite a lack of evidence that defendant intended to permanently deprive the victims of their car.Defendant argued the court erred in failing to grant his request for instructions on second degree murder and manslaughter where the evidence did not show he intended to kill in the course of the robbery because there was no showing of an intent to permanently deprive the victims of their car. However, there was no evidence defendant intended to return the car to its owners, that he took it believing he owned it or that he took it inadvertently. The court did not err in rejecting the lesser included offense instructionsid: 10117
Court did not commit reversible error in failing to instruct on brandishing as a lesser related offense of assault with a firearm.Defendant was convicted of several offenses including assault with a firearm (Penal Code section 245, subdivision (a)(2)). He argued the trial court improperly refused his request for a lesser related offense instruction on brandishing a weapon (section 417, subdivision (a)(2)). However, reversal was not required where the jury, confronted with defendant's use of a gun, was not faced with an all-or-nothing choice between finding him guilty of assault with a firearm and setting him free. Rather, the jury had the option of, and did in fact, convict him of false imprisonment by means of violence, of first degree robbery and of related firearm use enhancements.id: 9724
Counsel was not ineffective for not requesting an instruction on accessory after the fact as a lesser related offense where that crime was inconsistent with his theory of defense.Defendant was convicted of first degree murder and two counts of attempted murder in a gang related shooting. Defendant argued trial counsel was ineffective for not requesting an instruction on accessory after the fact as a lesser related offense. However, accessory after the fact was inconsistent with defendant's testimony and theory of defense. He testified he was unaware that codefendant (the shooter) had a gun, that he heard a shotgun blast, and he did not know codefendant had shot anyone. In sum, he did not know codefendant had committed a felony, an essential element of accessory after the fact.id: 9612
Court did not err in refusing to instruct on the crime of being an accessory as a lesser related offense to robbery when there was no evidence defendant attempted to aid or conceal his partner.Defendant was convicted of second degree robbery. He argued that it was his friend who actually robbed the victim and the court prejudicially erred by refusing to instruct the jury as to the lesser related offense of being an accessory (either to a robbery or to a "lesser included" grand theft). However, there was no evidence that defendant aided or attempted to conceal his confederate within the meaning of Penal Code section 32. Therefore there was no evidentiary basis upon which the jury could have found that defendant was an accessory to the crime. The court did not err in failing to instruct the jury as to the crime of being an accessory.id: 9615
Court properly refused to give accessory as a lesser related offense instructions where appellant denied any involvement.Appellant was convicted of murder and robbery. He argued the court should have given the defense requested instructions on accessory to a felony (Penal Code section 32) because it was a lesser related offense. Evidence that appellant told Kesha to drive away was only relevant to identity which will not support related offense instructions. Moreover, accessory to a felony requires a certain specific intent and the basis that appellant sought to rely on (that he had done nothing wrong) expressly included a denial of such intent.id: 9618
Evidence that defendant lied to an investigator was relevant only as consciousness of guilt as to the murder and did not support an instruction on accessory after the fact.Defendant argued the trial court erred in refusing his request to instruct the jury on the offense of accessory after the fact as a lesser related offense to murder. The evidence that could have supported an accessory instruction was that defendant lied to an investigator, telling him that the victim had left to catch a bus out of state and that defendant's girlfriend (who may have struck the lethal blow with an object) did not know anything and had not done anything. However, the evidence was relevant to the offense only to the extent it permitted the jury to infer a consciousness of guilt of that offense. The evidence did not establish the murder and accessory were closely related crimes and the instruction was properly refused.id: 9630
Assault, battery and mayhem were not necessarily included target offenses of murder by virtue of the language in the information describing the overt acts and instructions on the offenses were not required.The jury was instructed on conspiracy to commit first degree murder. Defendant argued the court erred in refusing to instruct on lesser offenses as the object of the conspiracy. However, contrary to defendant's argument, assault, battery, and mayhem do not qualify as offenses necessarily included within the charged target offense of murder. Moreover, the offenses do not qualify as lesser included target offenses by virtue of language in the information describing the overt acts.id: 9565
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850