Defendant's Right to Request Jury Instructions on Lesser Related Offenses
People v. Birks (1998), the Supreme Court disapproved People v. Geiger (1984) had held that, in certain situations, the defendant had a right to request instructions on offenses that were related to the greater offense.
Birks decided that the one-way street in favor of the defense was unsupportable, and overruled Geiger.
As a result, a trial court is no longer able to instruct on lesser related offenses, absent the stipulation of both parties, or a party's failure to object to such an instruction. (Birks, supra, 19 Cal. 4th at p. 136, fn. 19.)
The determination of whether an offense is lesser included is made from either the wording of the information or the statutory language, and not from the evidence adduced at trial. (Birks, supra, 19 Cal. 4th at p. 117; In re Hess (1955) 45 Cal. 2d 171, 174-175 288 P.2d 5; People v. St. Martin (1970) 1 Cal. 3d 524, 536 83 Cal. Rptr. 166, 463 P.2d 390; People v. Wright (1996) 52 Cal. App. 4th 203, 208 59 Cal. Rptr. 2d 316.)
"It is of no consequence that the evidence at trial might also establish guilt of another and lesser crime than that charged. to constitute a lesser and necessarily included offense it must be of such a nature that as a matter of law and considered in the abstract the greater crime cannot be committed without necessarily committing the other offense. (People v. Preston (1973) 9 Cal. 3d 308, 319 107 Cal. Rptr. 300, 508 P.2d 300; People v. Escarcega (1974) 43 Cal. App. 3d 391, 396-397 117 Cal. Rptr. 595.)" (People v. Benjamin (1975) 52 Cal. App. 3d 63, 71 124 Cal. Rptr. 799.)
A trial court is required to instruct on any lesser included offenses that are supported by the evidence. (People v. Barton (1995) 12 Cal. 4th 186, 194-195 47 Cal. Rptr. 2d 569, 906 P.2d 531.)
An offense is lesser included to a greater offense if the greater offense cannot be committed without also committing the lesser offense. (People v. Birks (1998) 19 Cal. 4th 108, 117 77 Cal. Rptr. 2d 848, 960 P.2d 1073 (Birks); People v. Lohbauer (1981) 29 Cal. 3d 364, 368-369 173 Cal. Rptr. 453, 627 P.2d 183.)
The trial court, however, is not required to instruct on lesser related offenses.