People v. Birks

Decision Date31 August 1998
Docket NumberNo. S057191,S057191
CourtCalifornia Supreme Court
Parties, 960 P.2d 1073, 98 Cal. Daily Op. Serv. 6803, 98 Daily Journal D.A.R. 9346 The PEOPLE, Plaintiff and Respondent, v. Lawrence BIRKS, Defendant and Appellant

Stephen Gilbert, Santa Monica, Linda F. Robertson, C. Delaine Renard and John Phillipsborn, San Francisco, as Amici Curiae on behalf of Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood, Esteban Hernandez, Robert M. Foster and Laura Whitcomb Halgren, Deputy Attorneys General, for Plaintiff and Respondent.

Dennis L. Stout, District Attorney (San Bernardino) and Grover D. Merritt, Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Respondent.

BAXTER, Justice.

California law has long provided that even absent a request, and over any party's objection, a trial court must instruct a criminal jury on any lesser offense "necessarily included" in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence. The rule also accords both parties equal procedural treatment, and thus benefits and burdens both to the same degree. Neither party is unfairly surprised by instructions on lesser necessarily included offenses because, by definition, the stated charge gives notice to both that all the elements of any such offense are at issue. By the same token, neither party has a greater right than the other either to demand, or to oppose, instructions on lesser necessarily included offenses. Finally, if lesser offenses are necessarily included in the charge the prosecution has chosen to assert, instructions on the lesser offenses, even when given over the prosecution's objection, cannot undermine the prosecution's traditional authority to determine the charges.

More recently, People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303 (Geiger ) held that in certain circumstances, the defendant has a state constitutional right to instructions on lesser offenses that are not necessarily included in the stated charge, but merely bear some conceptual and evidentiary "relationship" thereto. Because the accusatory pleading gives the defendant no notice of such "nonincluded" offenses, Geiger concluded that instructions on lesser merely "related" offenses can be given only upon the defendant's request.

In this case, defendant was convicted of burglary after his request for instructions on trespass as a "lesser related offense" was refused. A majority of the Court of Appeal ruled that denial of the instructional request was prejudicial error under Geiger. It therefore overturned the burglary conviction.

We granted the People's petition for review to consider whether Geiger should be overruled. On careful reflection, we now agree that Geiger represents an unwarranted extension of the right to instructions on lesser offenses. Geiger 's rationale has since been expressly repudiated for federal purposes by the United States Supreme Court, and it continues to find little support in other jurisdictions. The Geiger 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. Moreover, serious questions arise whether the holding of Geiger, ostensibly based on the due process clause of the California Constitution, can be reconciled with other provisions of the same charter. By according the defendant the power to insist, over the prosecution's objection, that an uncharged, nonincluded offense be placed before the jury, the Geiger rule may usurp the prosecution's exclusive charging discretion, and may therefore violate the Constitution's separation of powers clause.

For all these reasons, we conclude that Geiger can no longer be upheld. We will therefore reverse the judgment of the Court of Appeal.


In two separate episodes, less than two weeks apart, defendant was caught red-handed after he entered closed and locked San Bernardino restaurants during the predawn hours. An information charged defendant with two counts of second degree commercial burglary. (Pen.Code, § 459; see also id., §§ 460, 461.) 1

The earlier incident, involving George's Smorgasbord, was charged as a misdemeanor (Count 2). 2 The later episode, involving the Southern Hospitality restaurant, was charged as a felony (Count 1). In order to enhance punishment on Count 1, the information alleged two prior serious or violent felony convictions for purposes of the "Three Strikes" law (§ 667, subds. (b)-(i)), and two prior prison terms (§ 667.5, subd. (b)). The charges were tried jointly.

The evidence on Count 2 established that defendant was arrested inside George's Smorgasbord. The restaurant's operator reported that no items were disturbed or missing.

The evidence on Count 1 established that defendant was chased down by private security guards who happened along as he crawled out of the Southern Hospitality restaurant through a broken glass panel in the front door. This time, the interior was disturbed, and food items were missing. Defendant exclaimed when apprehended that there were "five other people" in the restaurant. However, the front entrance was under constant observation from the moment defendant emerged. No other persons were seen to exit or were found inside, no other means of escape existed, and there was no other direct or circumstantial evidence that any other individual had entered.

The night clerk of a hotel next door to the Southern Hospitality restaurant identified defendant as the man who took a trash can liner bag from the hotel lobby moments before defendant was caught leaving the restaurant. Though the street was generally deserted, the clerk stated his vague impression that when defendant came into the hotel lobby, there was someone else outside the door. Immediately after defendant left the hotel, the clerk heard crashing sounds in the adjacent restaurant.

The property missing from Southern Hospitality restaurant was not found on defendant's person or otherwise accounted for. The trash bag was never recovered. The owner of Southern Hospitality restaurant agreed on the stand with the prosecutor's suggestion that a "man on a bicycle" could have ridden away with the missing food in the trash bag. 3

Defendant did not present an affirmative defense. Though he offered no specific instruction, defendant nonetheless requested that the jury be instructed on trespass, a misdemeanor (§ 602), as a lesser related offense to the burglaries charged in both counts. Counsel stated he intended to argue in both cases that the evidence failed to The trial court agreed to instruct on the lesser offense in Count 2, "where we have the weaker evidence." On that count, without objection by defendant, the court gave a standard instruction supplied by the prosecutor. 4 The court refused trespass instructions on Count 1, stating its view that in that case, the evidence of intent to steal was "overwhelming."

establish the burglary element of intent to steal. The prosecutor consented to a trespass instruction on Count 2, where there was no evidence of missing or disturbed property, but he opposed such an instruction on Count 1.

In the course of his argument on Count 1, the prosecutor wrongly stated that the hotel clerk had mentioned seeing a second person on a bicycle. The prosecutor again theorized that this was an accomplice of defendant's, who might have used the bicycle to carry away the missing property in the trash bag. The prosecutor suggested that defendant's purpose in entering both restaurants was to steal food to sell on the street.

The defense argument on Count 1 conceded defendant's presence in the Southern Hospitality restaurant. However, counsel emphasized the absence of evidence linking defendant to the stolen property. Counsel noted that defendant emerged from the restaurant empty-handed, did not violently resist apprehension, and mentioned other persons inside. Counsel suggested the hotel clerk might have mistaken defendant for the man who took the trash bag, but counsel urged that even if defendant took the bag, he lacked sufficient time between leaving the hotel and emerging from the restaurant to move and take items inside the restaurant premises. Counsel called the bicycle evidence "vague," though he never directly challenged the prosecutor's bicycle references as inaccurate. The various gaps and weaknesses in the prosecution's case, counsel insisted, negated proof beyond a reasonable doubt that defendant entered the Southern Hospitality restaurant with intent to steal.

The jury convicted defendant of two counts of second degree burglary, found true the two prior strikes, and upheld one of the prison term allegations. 5 The court sentenced defendant to a Three Strikes term of twenty-five years to life on Count 1, with a concurrent one-year enhancement for the prior prison term, and a concurrent one-year jail sentence on Count 2.

In a split decision, the Court of Appeal, Fourth Appellate District, Division Two, held that the trial court's refusal to give trespass instructions on Count 1 was reversible error. The majority (Justice McKinster with Justice Ward concurring) reasoned that even though trespass is not a lesser necessarily included offense of burglary, Geiger 's requirements for lesser related offense instructions had been met as to Count...

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