People v. Geiger, Cr. 23105

• Decision Date: 02 February 1984
• Docket Number: Cr. 23105
• Citation: 199 Cal.Rptr. 45,35 Cal.3d 510,674 P.2d 1303
• Court: California Supreme Court
• Parties: , 674 P.2d 1303, 50 A.L.R.4th 1055 The PEOPLE, Plaintiff and Respondent, v. Michael Joseph GEIGER, Defendant and Appellant.

Page 45

199 Cal.Rptr. 45

35 Cal.3d 510, 674 P.2d 1303, 50 A.L.R.4th 1055

The PEOPLE, Plaintiff and Respondent, v. Michael Joseph GEIGER, Defendant and Appellant.

Cr. 23105.

Supreme Court of California In Bank.

Feb. 2, 1984.

Rehearing Denied Feb. 29, 1984.

Cliff Gardner, Fielder & Gardner, San Francisco, for defendant and appellant.

Dane R. Gillette, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

GRODIN, Justice.

Defendant appeals from a judgment imposed on a jury verdict finding him guilty of second degree burglary. (Pen.Code, § 459.) ¹ His principal contention is that the trial court erred in refusing to instruct the jury, in accordance with defendant's theory of the case, that he could be convicted of vandalism (§ 594), a related offense not necessarily included in burglary. ² We find merit in that contention, on the facts of this case. Clearly a defendant has no general right to have the jury presented with a shopping list of alternatives to the crimes charged by the prosecution. However, we find no reason in law, justice, or common sense why a jury that is not persuaded of the defendant's guilt of the charged offense should not have the opportunity to find him guilty of a lesser related offense where, as here, the lesser offense is closely related to that charged, there is evidence of its commission, and defendant's theory of defense is consistent with such a finding. Indeed, as we shall explain, well-established principles of constitutional dimension, as well as numerous recent decisions by federal courts and the courts of other states, support the giving of instructions upon request in such a situation, and recognize that this option to acquittal benefits the People as well as defendant.

Because we conclude that the failure to give the instruction requested by defendant requires reversal of the judgment, we do not reach defendant's additional claims of error in the admission of evidence.

The Prosecution Case

The offense occurred at 3 a.m. on Monday, October 26, 1981, in Santa Cruz. Gary Appel awoke to the sound of breaking glass. He looked out of the kitchen window of his third floor apartment toward the rear of Jack's, a restaurant, but saw nothing although the area was illuminated by one, and possibly two, lights. He heard a continuous sound of glass breaking and called the police. The sound continued as he did so. He looked out of another window, saw nothing, and went back to bed. Sometime later the police dispatcher called him and asked that he go outside to speak with police officers who had found a bicycle on his lawn near the boundary of the Jack's property. He did not recognize the bicycle.

Jack's had been closed at the usual time of 4 p.m. on Saturday and had not been open on Sunday, October 25. The owner had closed and locked all doors and windows, including a two-foot square rear service window which had a metal lock and was also secured with a wood wedge in the slide mechanism. The cash register which was visible from and within reach of the service window had been emptied by the owner and left with the drawer open.

When called to the restaurant by police shortly after 3 a.m. on the 26th the owner found the sliding service window completely broken, small pieces of glass on the interior and exterior counters of the window, and inside the restaurant as far as six to eight feet from the window. Some jagged glass with blood on it remained in the service window, and there was blood on the counter inside the window. A sliding screen inside the service window was undamaged. An unopened window envelope, containing an invoice addressed to the restaurant, was on the exterior counter of the service window. When the restaurant was closed it was customary for the mail to be pushed through a three-eighths inch space under the window to the inside counter, or far enough to fall to the floor. The postal carrier had never left mail on the exterior counter. Nothing had been taken from the restaurant and, apart from the glass, nothing had been disturbed.

Officer Finch arrived at Jack's shortly after 3 a.m., within a minute of the time he was dispatched to investigate suspicious activity. Sergeant Bartle, Lieutenant Gilbert and Officer McConnell arrived almost simultaneously and, in accordance with their usual procedure, approached the restaurant on foot from different directions. Officer Howes was nearby. Finch saw the broken service window. He noted that the interior screen was closed. There were glass and drops of blood on the counter, and on the concrete walkway below it. A double handful of glass, with blood on it, was found on a patio and more was found in a planter box in the rear of the patio along with the wooden stick which he recognized as that used to secure the window. He also found a two-by-four piece of wood, with nails in it, in another planter box in front of the business. In a planter hanging on the patio fence he found glass, with blood on it, and a piece of one-by-one stick.

After making these observations, Finch saw defendant emerge from behind a dumpster in an alleyway or yard and approach Officer McConnell. Finch estimated that he saw defendant about 45 seconds after he arrived at Jack's. He noted that as defendant took items out of his wallet, the items became smeared with blood. He also observed that defendant's right index finger was bleeding. No other person was seen in the area of the restaurant by the police officers.

Finch found a bicycle, a 10-speed model, in the yard of the Appel residence. On the handlebars he found a paper bag containing two George Benson record albums. Fingerprints on some glass fragments were identified as defendant's. Those on the record albums were not of sufficient quality to make identification possible.

Officer McConnell saw defendant as the officer positioned himself in the alley near the restaurant. Defendant was walking toward McConnell who identified himself and told defendant to put his hands where McConnell could see them. In response to McConnell's questions defendant said that he had been at the Dragon Moon Disco and was on his way home. Jack's was not a direct route between the disco and the hotel which defendant said was his residence. As defendant was taking identification from his wallet, McConnell saw a small laceration and blood on the index finger of one hand.

The Defense

Defendant presented only one witness, the owner of the Dragon Moon Disco, who testified that he had asked defendant to "help out" on the night of October 25 because he was short of help. Defendant had asked him for employment several times and was in the club as a customer that evening. Defendant remained after the 1:30 a.m. closing to help stock the bar. He was upset when the owner told him he would not be paid. The owner left at 2:30 a.m., and did not see defendant thereafter. He had loaned defendant two George Benson record albums that evening.

In argument to the jury, after the court had ruled that no instruction on vandalism would be given, defendant's counsel did not contest the sufficiency of the evidence to prove identity, but suggested that the evidence was not consistent with an intent to steal or commit any other offense in the restaurant. She offered a hypothetical explanation for the broken window by suggesting that a person who is angry, as was defendant when he learned he would not be paid for his work at the Dragon Moon, would express that anger by kicking a trash can, throwing a plate, or as he did by breaking a window. Scared after hearing the crash, he would pick up the pieces of glass and move them. Scared and upset, with nothing else to be done, he would go home, forgetting about the records. In argument counsel admitted that defendant committed a crime, vandalism, suggested that the jury might like to convict defendant of that crime, but told the jury that, because burglary and attempted burglary were the only charges, the jury had to acquit. The jury was instructed on burglary and attempted burglary.

The case was submitted to the jury at 4:09 p.m. At 4:15 p.m. the jury requested that the testimony of the restaurant owner regarding the blood on the inside of the premises be reread. A verdict of guilty of second degree burglary was returned at 4:52 p.m.

Defendant's strategy at trial was an attempt to convince the jury that the evidence was susceptible of conflicting inferences, one of which was that he had no intent to steal when he broke the window at Jack's, but did so in an outburst of anger and frustration because he had not been paid for his work at the Dragon Moon. Had the jury accepted his theory of the case, and had it been permitted to do so, it should have convicted him of vandalism for under the instructions given regarding circumstantial evidence a conviction of burglary or attempted burglary would not have been proper. ³ The trial court denied his request for an instruction on vandalism, however, on the ground that vandalism is not a lesser offense that is necessarily included within the charged offense, burglary. ⁴

Discussion

I.

The People are correct in their assertion that heretofore a defendant's right to instructions on offenses related to that charged has been limited to included offenses. (People v. Pendleton (1979) 25 Cal.3d 371, 381-382, 158 Cal.Rptr. 343, 599 P.2d 649.) However, as we shall demonstrate, close examination of the reasons underlying that right does not support such a limitation. Rather, as this court has intimated and courts in other jurisdictions have held, the right to instructions on included offenses is grounded upon considerations of fundamental fairness which, in the absence of countervailing state interests, mandate a broader rule. In the fashioning of such a rule we look to precedent from other jurisdictions for guidance.

Recognition that the right to instructions on lesser included offenses is an aspect of that "fundamental fairness" demanded by due...