The Trial Court Decides if There Will Be a Lesser Offense Instructions

ArrestIn a case recently decided by the California Supreme Court, a man accused of killing his son argued that he was entitled to a lesser-included offense jury instruction.  The California Supreme Court disagreed, finding that, except in capital murder cases, there is no absolute right to a lesser-included offense instruction.  The high court instead gave wide latitude to the trial courts to weigh evidence and determine when they believe the evidence is sufficient to give this instruction.

In the case before the court, the prosecution charged the defendant with assault on a child causing death.  The prosecution argued that the defendant’s 14-month-old child died due to receiving multiple blunt force traumas while in the defendant’s care.  The defendant explained that on the day in question, he had been play wrestling with his son.  He body slammed him a number of times, did an atomic elbow to the head, along with a number of other wrestling moves.  He argued that these were all pretend wrestling moves though, and that he believed the injury that led to his son’s death occurred when he jumped onto the bed where his son was laying.  He meant to leap over the child, but while he was in mid-leap, his son rolled over and the defendant landed on him.

The trial court did not give the jury any instructions on lesser-included offenses, and the jury convicted the defendant of involuntary manslaughter and assault on a child causing death.

What are greater and lesser-included offenses?  A popular common law example used to explain greater and lesser-included offenses are larceny and robbery.  Every crime is composed of elements.  In order to be convicted of a crime, the prosecution must prove the defendant committed every element of that crime beyond a reasonable doubt.  Larceny, for example, is composed of four elements.  Larceny is committed when a person 1) takes and 2) carries away the 3) tangible property 4) of another.  Robbery requires all of the elements of larceny, but also requires 5) the use of force or intimidation when taking the property.  The elements of larceny are included in robbery.  You cannot commit robbery without committing larceny.  Robbery is the greater offense, and larceny is the lesser-included offense.  The punishment for robbery is more harsh than the punishment for larceny.  The prosecutor decides whether to charge a defendant with the greater or lesser offense, and in most circumstances, a person cannot be convicted of both the greater and lesser crime.

As we discussed, before a person can be convicted of a crime, the prosecution is supposed to prove that the defendant committed all the elements of the crime.  However, studies have shown that even when the prosecution fails to prove all the elements of a crime, if the prosecution has proven some elements of a crime, a jury will likely convict a defendant rather let him walk free.  In order to give a jury an option that falls between convicting of a crime that is more serious than the facts merit and finding a defendant not guilty, the concept of the lesser-included offense instruction was developed.  When a person is charged by the prosecution with a greater offense, the court can give the jury the option of convicting a defendant of a lesser-included offense if they do not believe the prosecution has proven all of the elements of the greater offense.

On appeal in this case, the defendant argued he was entitled to a lesser-included offense instruction.  The jury should have been given the option of convicting him of simple assault, a lesser-included offense of assault on a child causing death.

The California Supreme Court held that a defendant has no right to a lesser-included offense instruction in every case.  The trial court only has to give that instruction when there is substantial evidence that “if the defendant is guilty at all, he is guilty of the lesser offense, but not the greater.”  Substantial evidence means evidence from which a jury composed of reasonable people could find that the lesser offense, and not the greater, was committed.

In the case at hand, the court felt it would be “speculative at best” to construe the trial evidence as supporting a verdict of simple assault only.  The trial court had no duty in this case to instruct the jury on a lesser-included offense.  The conviction stands.

An interesting question arises when considering the court’s decision.  In a criminal case, the jury is the trier of fact, which means the jury weighs evidence and draws conclusions.  The jury determines whether the prosecution has persuaded them beyond a reasonable doubt that the defendant is guilty of the crime charged.  When deciding whether to include a lesser included offense instruction, the trial judge is now given permission to weigh the evidence and decide if it is persuaded that the prosecutor has proven all the elements of the crime.  Does this ruling invade the traditional province of the jury as fact-finder?  There will be future challenges to the court’s holding.






Domenic

Domenic J. Lombardo (Attorney at Law), graduated from University of California, Los Angeles (U.C.L.A.), earning a B.A. in Economics-Business, before graduating with his J.D. from University of California, Hastings School of Law. He passed the California Bar Examination on the first try, and immediately began practicing as a criminal defense attorney in San Diego, California. Mr. Lombardo worked as a defense lawyer at the San Diego Office of the Public Defender from 1991 to early 1996. He opened his own firm in 1996 where he practices to this day focusing exclusively on defending criminal matters.
About Domenic

Domenic J. Lombardo (Attorney at Law), graduated from University of California, Los Angeles (U.C.L.A.), earning a B.A. in Economics-Business, before graduating with his J.D. from University of California, Hastings School of Law. He passed the California Bar Examination on the first try, and immediately began practicing as a criminal defense attorney in San Diego, California. Mr. Lombardo worked as a defense lawyer at the San Diego Office of the Public Defender from 1991 to early 1996. He opened his own firm in 1996 where he practices to this day focusing exclusively on defending criminal matters.

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