# People v. Breverman

> California Supreme Court · August 31, 1998 · 77 Cal. Rptr. 2d 870

URL: https://www.frixlaw.com/law-library/cases/9559610

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. SCOTT BREVERMAN, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 31, 1998
- **Citations:** 77 Cal. Rptr. 2d 870; 19 Cal. 4th 142; 98 Daily Journal DAR 9358; 960 P.2d 1094; 98 Cal. Daily Op. Serv. 6812; 1998 Cal. LEXIS 5589
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Baxter, Mosk, Brown
- **Cited by:** 1,555 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/9559610

## How later opinions describe it (automated extraction)

- holding that “the failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility”
- describing that '"[a] defendant who commits an intentional and unlawful killing but who lacks malice is guilty of.. . voluntary manslaughter'" (alteration in original) (citations omitted)(quoting Barton, 12 Cal. 4th at 199 )
- stating that a court has a duty to instruct sua sponte on a lesser included offense only if the offense is supported by substantial evidence
- emphasizing the “sharp distinction” between instructions on defenses and those on lesser included offenses

## Opinion text

BROWN, J., Dissenting.
The majority, concluding that the trial court erred in failing to instruct sua sponte on voluntary manslaughter on a heat of passion theory, directs the Court of Appeal to reconsider the prejudicial impact of that error. In my view, the trial court did not err at all, reversibly or otherwise. Therefore, I respectfully dissent.
I
The majority cites People v. Sedeno (1974) 10 Cal.3d 703, 715-716 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ] (Sedeno), for the proposition that trial courts have a “sua sponte duty to instruct on lesser necessarily included offenses.” (Maj. opn., ante, at p. 148.) Following today’s decision, a proper citation to Sedeño for this seemingly straightforward proposition will read as follows: Sedeno, supra, 10 Cal.3d at pages 715-716, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684-685 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ], footnote 12 (abrogating Sedeno's requirement that jury instructions must be given whenever any evidence is presented, no matter how weak) and overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 163 , footnote 10 (abrogating Sedeno's characterization of heat of passion as a defense) and overruled on other grounds in People v. Breverman, supra, 19 Cal.4th at pages 164-178 (abrogating Sedeno's standard for determining whether the failure to instruct is prejudicial). 1
This ought to be our first clue.
The time is long overdue for a critical reexamination of the court’s lesser offense jurisprudence. Today, we have commenced this important task, unanimously overruling People v. Geiger (1984) 35 Cal.3d 510 [ 199 Cal.Rptr. 45 , 674 P.2d 1303 , 50 A.L.R.4th 1055 ], which addressed lesser related offenses. (See People v. Birks (1998) 19 Cal.4th 108 [ 77 Cal.Rptr.2d 848 , 960 P.2d 1073 ].) I applaud that decision. I write separately in this case to urge a similar reexamination for lesser included offenses.
*196 II
Throughout its opinion, the majority clings to what little is left of Sed eño—namely, its requirement that trial courts must instruct sua sponte on lesser included offenses supported by the evidence. While freely admitting that “[sjeveral of the People’s arguments . . . attack the heart of the Sedeño rule in all its applications” (maj. opn., ante, at p. 162, fn. 9) and that “several of their arguments imply a general distaste for the sua sponte instructional rule for lesser included offenses” {id. at p. 156, fn. 6), the majority steadfastly resists any serious examination of Sedeño's core analytical underpinnings. Instead, the majority repeatedly seeks refuge in the fact the People have made no contention “that the California rule requiring sua sponte instructions on lesser necessarily included offenses should be entirely abrogated in favor of a rule requiring such instructions only on a party’s request.” (Maj. opn., ante, at p. 156, fn. 6; see also id. at pp. 162, fn. 9 [“Of course, as we have previously indicated, the People do not ask that we overrule Sedeño per se.”]; id. at p. 169, fn. 17 [“Finally, we stress again that in this case, the People raise no general objection to the Sedeño instructional rule, including its sua sponte aspect.”].)
As a court of last resort, a court whose role is to provide guidance and workable procedures for our lower courts, we cannot simply cloak ourselves in the doctrine of stare decisis. That doctrine is “' “a flexible one which permits this court to reconsider, and ultimately to depart from, our own prior precedent in an appropriate case.” ’ ” {People v. Birks, supra, 19 Cal.4th at p. 117.) “ ' “It... ‘is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system . . . ” (Id. at p. 116.) As the “full” citation to Sedeño amply demonstrates (see ante, at p. 195), these adjectives scarcely describe our lesser included offense jurisprudence, which has been plagued by uncertainty, unpredictability, and instability. “ ‘ “ ‘[Although the doctrine [of stare decisis] does indeed serve important values, it nevertheless should not shield court-created error from correction.”” [Citation.]” {People v. Birks, supra, 19 Cal.4th at p. 117.) This is particularly true where, as here, the error is one of constitutional interpretation, as to which “only we can remedy the mistake. [Citations.]” {Ibid.)
As I explain below, Sedeño's sua sponte instruction rule finds no basis whatsoever in our state Constitution. Nor do the “broader interests” identified by the majority (maj. opn., ante, at p. 155) warrant its retention. To the contrary, the rule runs counter to the very premises underlying our system of *197 criminal justice. Under these circumstances, we have an obligation to rethink the requirement. 2
in
In a single sentence, quoting language found in some of our prior decisions, the majority tepidly observes that “[cjases have suggested that the requirement of sua sponte instructions arises, among other things, from the defendant’s right under the California Constitution ‘to have the jury determine every material issue presented by the evidence.’ ” (Maj. opn., ante, at p. 155, citing People v. Geiger, supra, 35 Cal.3d at p. 519 , People v. Wickersham (1982) 32 Cal.3d 307, 335 [ 185 Cal.Rptr. 436 , 650 P.2d 311 ], Sedeno, supra, 10 Cal.3d at p. 720 , People v. Modesto, supra, 59 Cal.2d at p. 730.) Significantly, all four cases cited by the majority are cases this court has largely repudiated. The lesser related offense instruction rule established in Geiger, supra, 35 Cal.3d 510 , was overruled in People v. Birks, supra, 19 Cal.4th 108 . The characterization of unreasonable self-defense as a defense in People v. Wickersham, supra, 32 Cal.3d at p. 329 , was overruled in People v. Barton (1995) 12 Cal.4th 186, 200-201 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]. This court has overruled Sedeno, supra, 10 Cal.3d 703 , on three different points. (See ante, at pp. 1-2.) And the standard for reversal established in People v. Modesto, supra, 59 Cal.2d 722 , was overruled in Sedeno, supra, 10 Cal.3d 703 . (See ante, at p. 195, fn. 1.)
Exactly where in our state Constitution the so-called “right” to sua sponte instructions on lesser included offenses is to be found is unclear. In fact, as the majority later acknowledges (see maj. opn., ante, at p. 165), the analyses in Sedeño and Modesto are so cursory that it is not even clear whether we were relying on state or federal constitutional principles; the same is true of Wickersham . The fourth case cited by the majority, People v. Geiger, supra, 35 Cal.3d at page 519 , cryptically describes the right as “an incident of due process under the California Constitution.” Once again, however, exactly what it is about our state Constitution’s due process clause that requires sua sponte instructions on lesser included offenses remains a mystery.
As the majority grudgingly concedes in a footnote (maj. opn., ante, at p. 169, fn. 17), “[a]s early as 1938, we stated that ‘cogent reasons must exist *198 before a state court in construing a provision of the state Constitution will depart from the construction placed by the Supreme Court of the United States on a similar provision in the federal Constitution.’ [Citations.]” (Raven v. Deukmejian (1990) 52 Cal.3d 336, 353 [ 276 Cal.Rptr. 326 , 801 P.2d 1077 ]; see also American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 424-427 [ 66 Cal.Rptr.2d 210 , 940 P.2d 797 ] (dis. opn. of Brown, J.).) The United States Supreme Court’s decisions “leave substantial doubt that the federal Constitution confers any right to lesser included offense instructions in noncapital cases. They provide no basis whatever for a conclusion that the federal charter would require such instructions ... on the court’s own motion.” (Maj. opn., ante, at p. 168, original italics; see also Kubat v. Thieret (7th Cir. 1989) 867 F.2d 351, 365-366 [“No federal court has imposed on trial judges a duty to sua sponte instruct on lesser included offenses, and we agree with the district court that the wisdom of such a rule would be questionable.”].)
The only “ ‘cogent reason[]’ ” offered by the majority for departing from the United States Supreme Court’s decisions is its bald assertion that “the reasons for the long-established California approach to instructions on lesser included offenses . . . as a matter of state constitutional law . . . have been set forth at length in our decisions.” 3 (Maj. opn., ante, at p. 169, fn. 17.) Where? I have searched high and low for such an explanation. I challenge the majority to point to exactly where it can be found.
In reality, it does not exist. The lesser included offense instruction rule is a creature of statutory, not constitutional law. Specifically, it is a court-created procedure designed to implement Penal Code section 1159 (section 1159), a statute the majority relegates to a footnote. (Maj. opn., ante, at p. 166, fn. 13.) Section 1159, enacted in 1872, provides that “[t]he jury . . . may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.” Section 1159, in turn, was based on an even earlier law, which provided for such instructions on the request of either party. (See Stats. 1850, ch. 119, § 392, p. 303; id., § 456, p. 308.) Early decisions of this court interpreting section 1159 consistently held that “a judgment will not be reversed because the trial court had not instructed as to a lesser crime included in the greater one charged, unless the defendant had requested that the jury be so instructed.” (People v. Bailey (1904) 142 Cal. 434, 435 [ 76 P. *199 49 ], italics added, citing People v. Wilson (1902) 135 Cal. 331 [ 67 P. 322 ]; People v. Hite (1901) 135 Cal. 76 [ 67 P. 57 ]; People v. Barney (1896) 114 Cal. 554 [ 47 P. 41 ]; People v. McNutt (1892) 93 Cal. 658 [ 29 P. 243 ]; People v. Guidice (1887) 73 Cal. 226 [ 15 P. 44 ]; People v. Franklin (1886) 70 Cal. 641 [ 11 P. 797 ].)
In 1969, in a case that did not cite section 1159 and contained no constitutional analysis whatsoever, this court summarily overturned this extensive body of case law. The sum total of our analysis was as follows: “[T]he cases establishing this general rule [i.e., the duty to instruct on general principles of law relevant to the issues raised by the evidence] are in conflict with another line of cases that hold that it is not error for the court to fail to instruct on lesser included offenses on its own motion, even though such an instruction would be supported by the evidence. (People v. Bailey (1904) 142 Cal. 434 [ 76 P. 49 ]; People v. Hite (1901) 135 Cal. 76 [ 67 P. 57 ]; People v. Franklin (1886) 70 Cal. 641 [ 11 P. 797 ]; People v. Smith (1963) 223 Cal.App.2d 225, 237 [ 35 Cal.Rptr. 719 ]; People v. Calderon (1957) 155 Cal.App.2d 526, 530 [ 318 P.2d 498 ]; People v. Williams (1956) 141 Cal.App.2d 849, 853 [ 297 P.2d 759 ].) We believe that there is no basis for such an exception to the general rule. Accordingly, to the extent that the foregoing cases support a special rule for lesser included offenses, they are overruled.” (People v. Hood (1969) 1 Cal.3d 444, 449-450 [ 82 Cal.Rptr. 618 , 462 P.2d 370 ]; see also dis. opn. of Mosk, J., ante, at p. 181 [“It was only relatively recently that we adopted the rule that a trial court must instruct the jury sua sponte on a lesser offense necessarily included within a greater charged offense. [Citation.] Traditionally, a court was not required to give such an instruction. [Citations.]”].)
And so, through the auspices of judicial alchemy, our “constitutional” right to sua sponte instructions on lesser included offenses was bom. And, through similar offices, the majority concludes it ought to be continued. I don’t think so.
IV
Apparently recognizing the vacuity of our prior case law on the constitutional issue, the majority hastens to add that “we have consistently stressed the broader interests served by the sua sponte instructional mle. As we have said, insofar as the duty to instmct applies regardless of the parties’ requests or objections, it prevents the ‘strategy, ignorance, or mistakes’ of either party from presenting the jury with an ‘unwarranted all-or-nothing choice,’ encourages ‘a verdict ... no harsher or more lenient than the evidence merits’ (Wickersham, supra, 32 Cal.3d at p. 324 , italics added), and thus *200 protects the jury’s ‘truth-ascertainment function’ (.Barton, supra, 12 Cal.4th 186, 196 ). ‘These policies reflect concern [not only] for the rights of persons accused of crimes [but also] for the overall administration of justice.’ (Wickersham, supra, 32 Cal.3d at p. 324 .)” (Maj. opn., ante, at p. 155.)
This sounds nice. But what does it mean? It means we fundamentally distrust the adversary process. Such distrust runs counter to “[t]he very premise of our adversary system of criminal justice[, which] is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” (Herring v. New York (1975) 422 U.S. 853, 862 [ 95 S.Ct. 2550, 2555 , 45 L.Ed.2d 593 ]; see also In re Visciotti (1996) 14 Cal.4th 325, 363 [ 58 Cal.Rptr.2d 801 , 926 P.2d 987 ] (dis. opn. of Brown, J.).) “In other words, ‘The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness.’ ” (People v. Bloom (1989) 48 Cal.3d 1194, 1236-1237 [ 259 Cal.Rptr. 669 , 774 P.2d 698 ] (cone, and dis. opn. of Mosk, J.), quoting Polk County v. Dodson (1981) 454 U.S. 312, 318 [ 102 S.Ct. 445, 449-450 , 70 L.Ed.2d 509 ], italics added.) Absent concrete evidence that the adversary process in a given case has, in fact, broken down (see, e.g., In re Visciotti, supra, 14 Cal.4th at pp. 362-366 (dis. opn. of Brown, J.)), I decline to indulge in the majority’s across-the-board assumption to the contrary.
It is worth noting that at the time our prior cases first articulated the sua sponte instruction rule, there was more of a reason to question the efficacy of the adversary process because the performance of criminal defense counsel was not subjected to the same level of scrutiny as it is today. (See People v. Ibarra (1963) 60 Cal.2d 460, 464 [ 34 Cal.Rptr. 863 , 386 P.2d 487 ] [To obtain relief based on ineffective assistance of counsel “[i]t must appear that counsel’s lack of diligence or competence reduced the trial to a ‘farce or a sham.’ [Citations.]”], overruled in People v. Pope (1979) 23 Cal.3d 412, 421-426 [ 152 Cal.Rptr. 732 , 590 P.2d 859 , 2 A.L.R.4th 1 ].) Now, with heightened scrutiny of defense counsel’s performance, both on direct appeal and in habeas corpus proceedings, there is no need for a sua sponte instruction rule to guard against attorney error. Indeed, to continue the requirement serves only to turn our courts into the very “ ‘gambling halls’ ” it was designed to close down. (People v. Barton, supra, 12 Cal.4th at p. 204 .) For example, as the People observe, the rule allows a defendant to pursue his strongest line of defense, remain silent about other, potentially inconsistent, defenses supported by the evidence, and then, if unsuccessful on the primary defense, to complain for the first time on appeal. (See People v. Guiuan (1998) 18 Cal.4th 558, 578 [ 76 Cal.Rptr.2d 239 , 957 P.2d 928 ] (conc, and dis. opn. of Brown, J.), quoting People v. Prettyman (1996) 14 Cal.4th 248, 293 [ 58 Cal.Rptr.2d 827 , 926 P.2d 1013 ] (conc, and dis. opn. of Brown, J.) *201 [Generally, sua sponte instructions “do[] little to improve the quest for justice in the trial courts while frequently generating an argument for reversal on appeal. [Citation.]”]; cf. Cowan v. Superior Court (1996) 14 Cal.4th 367, 392 [ 58 Cal.Rptr.2d 458 , 926 P.2d 438 ] (cone, and dis. opn. of Brown, J.) [permitting a defendant to raise a statute of limitations defense for the first time on appeal “encourage[s] gamesmanship”].) The problem has only been exacerbated by the recent proliferation of lesser offenses and the attendant difficulties in determining what constitutes an “included” offense. (See dis. opn. of Mosk, J., ante, at pp. 181-184 [arguing that manslaughter is a lesser related, not a lesser included, offense of murder]; but see People v. Watson (1983) 150 Cal.App.3d 313, 321 [ 198 Cal.Rptr. 26 ] [chronicling the “firmly established” treatment of manslaughter as a lesser included offense of murder].)
Trusting, as I do, our adversary system of criminal justice, I would adopt the federal rule governing instructions on lesser included offenses, which is well summarized in Walker v. United States (D.C. Cir. 1969) 418 F.2d 1116 . “In general the trial judge should withhold charging on [a] lesser included offense unless one of the parties requests it, since that charge is not inevitably required in our trials, but is an issue best resolved, in our adversary system, by permitting counsel to decide on tactics. If counsel ask for a lesser-included-offense instruction, it should be freely given. [Citation.] If it is not requested by counsel, it is properly omitted by the trial judge, and certainly should not be initiated by the judge after summations are completed, except possibly in an extreme case.” (Id. at p. 1119, fn. omitted.) Such a rule is consistent with this court’s early—and, in my view, correct— treatment of the issue. (See ante, at p. 199; cf. People v. Birks, supra, 19 Cal.4th at pp. 124, 126 [Section 1159 is “nearly identical” to rule 31(c) of the Federal Rules of Criminal Procedure (18 U.S.C.), the governing federal rule, and “there is no reason to assume our statute has any different purpose, or any broader meaning, than rule 31(c)” as construed by the United States Supreme Court.].) A request-based rule is also consistent with the result reached in our recent decision in People v. Barton, supra, 12 Cal.4th 186 , where the prosecution requested that the instruction at issue be given. 4 (Barton, supra, at p. 193 .)
*202 V
For the reasons discussed above, I would reverse the judgment of the Court of Appeal and remand this case to that court with directions to address the remaining issues raised by defendant on appeal.
Indeed, Sedeño itself overruled an even more stringent standard for determining whether the failure to instruct is prejudicial. (See Sedeno, supra, 10 Cal.3d at pp. 720-721, overruling People v. Modesto (1963) 59 Cal.2d 722, 730-731 [ 31 Cal.Rptr. 225 , 382 P.2d 33 ].) I wonder why, if the sua sponte instruction rule is as important as some of our prior cases seem to say, we have now made the failure to instruct on lesser included offenses all but harmless per se. (See dis. opn. of Mosk, J., ante, at p. 186 & fn. 2.)
At a bare minimum, we ought not to extend the sua sponte instruction rule “to every theory of [a lesser included] offense that finds rational support in the evidence.” (Maj. opn., ante, at p. 148, italics added.) The People’s proposal—that trial courts need only instruct sua sponte on the theory of a lesser included offense most consistent with the evidence and the line of defense pursued at trial—is eminently reasonable. Indeed, the United States Supreme Court’s decision in Schad v. Arizona (1991) 501 U.S. 624 [ 111 S.Ct. 2491 , 115 L.Ed.2d 555 ], suggests precisely such an approach. (See maj. opn., ante, at p. 161, fn. 8.)
In People v. Birles, supra, 19 Cal.4th at p. 124, this court suggests that “stare decisis may provide a ‘ “cogent reason[]” ’ ... to retain, for California purposes, a constitutional principle once established, even if that principle subsequently appears at odds with federal jurisprudence.” I agree, but only to the extent the state rule- is itself well grounded. As explained in the text, the California rule requiring trial courts to instruct sua sponte on lesser included offenses does not fall in this category.
Although I agree that the parties’ briefs at least implicitly raise the issue addressed in Justice Kennard’s dissenting opinion, neither party has addressed, or even cited, Mullaney v. Wilbur (1975) 421 U.S. 684 [ 95 S.Ct. 1881 , 44 L.Ed.2d 508 ], the seminal case on the point. Since this court has not ordered supplemental briefing on the issue, I decline to address it in detail. I do note, however, that the United States Supreme Court’s decision in Mullaney, supra, 421 U.S. 684 , grants the states considerable latitude in this area, expressly requiring that the heat of passion issue be “properly presented” (id. at p. 704 [95 S.Ct. at p. 1892]) and expressly upholding state law requirements that a defendant present “ ‘some evidence’ ” on the issue (id. at pp. 701-702, fn. 28 [95 S.Ct. at p. 1891]). It may well be that a heat of passion *202 issue is not properly presented for Mullaney purposes unless and until a defendant requests instructions on the issue. (Cf. id. at p. 704 & fn. * [95 S.Ct. at p. 1892] (cone. opn. of Rehnquist, J.) [noting that the state had not made any point of the defendant’s failure to object in the trial court where “making an objection or exception . . . might prevent the error from ever occurring”].)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9559610. Public record. Not legal advice.