# People v. Birks

> California Supreme Court · August 31, 1998 · 77 Cal. Rptr. 2d 848

URL: https://www.frixlaw.com/law-library/cases/9559579

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. LAWRENCE BIRKS, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 31, 1998
- **Citations:** 77 Cal. Rptr. 2d 848; 19 Cal. 4th 108; 98 Daily Journal DAR 9346; 960 P.2d 1073; 98 Cal. Daily Op. Serv. 6803; 1998 Cal. LEXIS 5591
- **Precedential status:** Published
- **Opinion:** Concurrence by Mosk
- **Judges:** Baxter, Werdegar, Brown
- **Cited by:** 450 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9559579

## How later opinions describe it (automated extraction)

- finding the analysis in Reeves "utterly convincing" and rejecting a charge on lesser-related offenses

## Opinion text

*138 MOSK, J.
J. I concur in the result.
In People v. Geiger (1984) 35 Cal.3d 510 [ 199 Cal.Rptr. 45 , 674 P.2d 1303 , 50 A.L.R.4th 1055 ], we held, over a dissent by Justice Richardson, that, at the defendant’s request, and under certain conditions, the trial court must instruct the jury on an offense lesser than, and “related” to, the offense charged.
With the experience of more than a decade, I believe that the rule of Geiger has proved to be unworkable. In Geiger itself, we failed to articulate an implementing standard, a test for determining whether a lesser offense is “related” to the charged offense. We implied that such a standard would articulate itself in the application. That was indeed our hope. It has not been fulfilled.
I do not believe, however, that the rule of Geiger is, in any way, violative of the California Constitution. Indeed, unlike the majority, I entertain no “question” about the matter, “serious” or otherwise. (Maj. opn., ante, at p. 134.)
In Geiger , we concluded that the instructional requirement as to lesser “related” offenses was required by the guaranty of due process of law. We did so because we were then of the view that such an obligation was necessary to ensure the defendant fundamental fairness when he found himself in the hands of the state. I no longer share that view. Because a standard implementing that mandate has not articulated itself, the mandate itself turns out to be formless and, as such, ineffectual.
In Geiger , we also addressed, and rejected, an argument made by the People, and urged by Justice Richardson, that the instructional requirement as to lesser “related” offenses was prohibited by the principle of separation of powers. We did so because we were then of the view that such an obligation would not cause the trial court’s authority to trench on that of the prosecutor. I still share that view, for the following reasons.
Reasonably considered, the instructional requirement as to lesser “related” offenses does not even implicate the principle of separation of powers. The prosecutor’s authority, as is manifest, expresses itself in the bringing of charges against the defendant. (See, e.g., People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 514 [ 53 Cal.Rptr.2d 789 , 917 P.2d 628 ].) By contrast, the trial court’s authority extends to their disposition. (See, e.g., ibid.) By instructing on a lesser “related” offense, the trial court does not encroach on the prosecutor’s power in form. To give instructions—even instructions *139 subsequently held to be erroneous—belongs to the trial court, and to the trial court alone, going as it does to the disposition of charges. By instructing on a lesser “related” offense, neither does the trial court encroach on the prosecutor’s power in substance. In this area, the prosecutor has an altogether legitimate complaint. Although, on the surface, his concern seems to be with the lesser “related” offense, at bottom it shows itself to relate to the offense charged: “By instructing on a lesser ‘related’ offense,” he may be understood to argue, “the trial court erroneously invites the jury to find the defendant not guilty of the offense charged.” That may perhaps be true. But, for present purposes, it is of no consequence. By giving any instruction that is over-favorable in any way to any defendant, the trial court, by definition, erroneously invites the jury to find the defendant not guilty of the offense charged. But simply by erring in this regard, it does not exceed its power. True, it may be deemed to misuse its authority to dispose of charges. It cannot be said, however, to use the prosecutor’s authority to bring charges in the first place. The result is no different if, by instructing on a lesser “related” offense, it erroneously invites the jury to find the defendant not guilty of the offense charged. Here too, it may misuse its own authority, but does not use the prosecutor’s.
In conclusion, and solely because the rule of Geiger has proved to be unworkable, I concur in the result.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9559579. Public record. Not legal advice.