People v. Memro

KENNARD, J., Concurring and Dissenting.

I concur in the judgment and, except as to one issue, I concur also in the majority opinion.

The issue on which I part company with the majority concerns defendant’s contention that, in connection with the killing of 7-year-old Carl Carter, Jr., the trial court erred in not instructing the jury on former section 647a (now section 647.6) of the Penal Code (annoying or molesting a child under the age of 18; hereafter former section 647a) as a lesser included offense of Penal Code section 288 (lewd and lascivious act on a child under the age of 14; hereafter section 288). The majority rejects this contention. (Maj. opn., ante, at p. 872.) I agree that it should be rejected, but not for the reason that the majority gives.

The majority concludes that an instruction on former section 647a was not required because the evidence received at trial would not support a conclusion that defendant did not violate section 288 but did violate former section 647a. (Maj. opn., ante, at pp. 870-873.) Although this characterization of the evidence may well be correct, the majority’s reasoning implies that if the state of the evidence had been otherwise, the trial court would have been obligated to instruct on former section 647a. I disagree.

The majority’s reasoning ignores the fact that defendant was not charged with a violation of section 288. Rather, the crime defined in that section was *889 relevant only as the predicate felony to support the charge of first degree murder on a theory of felony murder. The majority cites no authority for the proposition that a trial court is required to instruct the jury on lesser included offenses of uncharged offenses relevant only as predicate felonies under the doctrine of felony murder.

The rationale underlying a trial court’s obligation to instruct on lesser included offenses has been explained this way: “The state has no interest in a defendant obtaining an acquittal where he is innocent of the primary offense charged but guilty of a necessarily included offense. Nor has the state any legitimate interest in obtaining a conviction of the offense charged where the jury entertains a reasonable doubt of guilt of the charged offense but returns a verdict of guilty of that offense solely because the jury is unwilling to acquit where it is satisfied that the defendant has been guilty of wrongful conduct constituting a necessarily included offense. Likewise, a defendant has no legitimate interest in compelling the jury to adopt an all or nothing approach to the issue of guilt. Our courts are not gambling halls but forums for the discovery of truth.” (People v. St. Martin (1970) 1 Cal.3d 524, 533 [ 83 Cal.Rptr. 166 , 463 P.2d 390 ].)

This rationale applies only to offenses with which the defendant has been charged; it does not apply to uncharged offenses that are relevant only to support a theory of felony murder. In this context, the defendant’s guilt of an uncharged predicate felony becomes an element of the charged offense of murder; thus, the jury’s doubts that the defendant committed the predicate felony may cause it to reject the felony-murder theory. But whether the acceptance or rejection of the felony-murder theory presents the jury with an all-or-nothing choice will depend on whether the jury has been given alternative theories or other verdict options relating to the charged offense of murder. It will not depend on whether the jury has been instructed on offenses that are necessarily included within the uncharged predicate felony.

To be sure, an offense that is a lesser included offense of an uncharged predicate felony might also qualify as a lesser related offense of the charged offense of murder. In such a case, the defendant may be entitled, on request, to instructions on that offense. (See People v. Geiger (1984) 35 Cal.3d 510 [ 199 Cal.Rptr. 45 , 674 P.2d 1303 , 50 A.L.R.4th 1055 ].) But this is not such a case. Defendant did not request that the trial court instruct the jury on former section 647a as a lesser related offense of murder, nor has he argued in this court that former section 647a is a lesser related offense of murder. Indeed, I do not understand defendant to be arguing that the jury should have been given the option of convicting defendant of former section 647a, but only that the trial court should have explained former section 647a to the *890 jury so that it could somehow better understand the uncharged predicate felony, section 288.

Because defendant was not charged with a violation of section 288, and because former section 647a is not an offense necessarily included within the charged offense of murder, the trial court did not err in failing, on its own initiative, to instruct on former section 647a. In this case, an instruction on former section 647a as a lesser included offense of section 288 would have served no useful purpose and could well have confused the jury.

Werdegar, J., concurred.

Appellant’s petition for a rehearing was denied February 14, 1996, and the opinion was modified to read as printed above.