Birks

*112 Opinion

California law has long provided that even absent a request, and over any party’s objection, a trial court must instruct a criminal jury on any lesser offense “necessarily included” in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence. The rule also accords both parties equal procedural treatment, and thus benefits and burdens both to the same degree. Neither party is unfairly surprised by instructions on lesser necessarily included offenses because, by definition, the stated charge gives notice to both that all the elements of any such offense are at issue. By the same token, neither party has a greater right than the other either to demand, or to oppose, instructions on lesser necessarily included offenses. Finally, if lesser offenses are necessarily included in the charge the prosecution has chosen to assert, instructions on the lesser offenses, even when given over the prosecution’s objection,…

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…

I concur in the majority opinion except insofar as it discusses the California constitutional doctrine of separation of powers. The discussion is unnecessary to the court’s holding and, in keeping with the traditional rule that courts refrain from addressing constitutional questions unless required to resolve a given case (see College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721 [ 34 Cal.Rptr.2d 898 , 882 P.2d 894 ]; People v. Williams (1976) 16 Cal.3d 663, 667 [ 128 Cal.Rptr. 888 , 547 P.2d 1000 ]; People v. Bennett (1998) 17 Cal.4th 373, 393 [ 70 Cal.Rptr.2d 850 , 949 P.2d 947 ] (conc. opn. of Werdegar, J.)), I express no opinion on its correctness.

I fully concur in the determination, long overdue, to overrule People v. Geiger (1984) 35 Cal.3d 510 [ 199 Cal.Rptr. 45 , 674 P.2d 1303 , 50 A.L.R.4th 1055 ] (Geiger) for all the reasons cogently articulated in the majority opinion. In addition to the deficiencies already noted, Geiger is flawed in other respects.

First, other than making a superficial comparison to the lesser included offense instruction rule, the Geiger court provided no real analysis for its conclusion that the state constitutional right to due process compelled a lesser related offense instruction rule. (See Geiger, supra, 35 Cal.3d at pp. *140 518-520.) Only two cases were cited, neither of which purported to define the scope of due process in a criminal proceeding. (See Salas v. Cortez (1979) 24 Cal.3d 22 [ 154 Cal.Rptr. 529 , 593 P.2d 226 ] [indigent putative fathers entitled to appointment of counsel in paternity actions brought by the state]; In re Roger S. (1977) 19 Cal.3d 921 [ 141 Cal.Rptr. 298 , 569 P.2d 1286 ] [14-year-old minor cannot be placed in mental hospital without due process determination of mental illness or disorder].) At best, these authorities stand for the generic proposition “that an…

BAXTER, Justice.

California law has long provided that even absent a request, and over any party's objection, a trial court must instruct a criminal jury on any lesser offense "necessarily included" in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence. The rule also accords both parties equal procedural treatment, and thus benefits and burdens both to the same degree. Neither party is unfairly surprised by instructions on lesser necessarily included offenses because, by definition, the stated charge gives notice to both that all the elements of any such offense are at issue. By the same token, neither party has a greater right than the other either to demand, or to oppose, instructions on lesser necessarily included offenses. Finally, if lesser offenses are necessarily included in the charge the prosecution has chosen to assert, instructions on the lesser offenses, even when given over the prosecution's…