Brice

*113 Opinion

Introduction

Defendants Harold Shamburger and Lloyd Brice were charged in connection with the murders of Jerome Nance and William Fisher. In the Nance trial, the jury found Shamburger guilty of first degree murder. (Pen. Code, § 187.) 1 In the Fisher trial, the jury found both defendants guilty of accessory to murder (§ 32) and not guilty of the remaining counts. Prior to the second trial, Brice had pled guilty to possession of material with intent to make an explosive device. (§ 12312.)

The trial court sentenced Shamburger to 25 years to life on the murder count and to the upper term of 3 years on the accessory count. The trial court sentenced Brice to the upper term of four years for possession of materials with intent to make an explosive device and to a consecutive term of eight months on the accessory count. A consecutive one-year sentence was imposed for a section 667.5, subdivision (b), enhancement.

For the reasons discussed below, the judgment of conviction of accessory to murder is reversed as to each defendant and the remaining judgments of conviction are affirmed.

Statement of Facts *

Discussion

I., II.*

III. Contention of Both Defendants (Fisher…

At trial, the defendants demanded accessory-after-the-fact instructions, as was their right under [People v.] Geiger *117 [(1984) 35 Cal.3d 510 ( 199 Cal.Rptr. 45 , 674 P.2d 1303 , 50 A.L.R. 4th 1055 )]. When the jury convicted them of that offense, they garnered an unexpected windfall: they escaped scot-free on that charge because the statute of limitations had run.

Following People v. Diedrich (1982) 31 Cal.3d 263 [ 152 Cal.Rptr. 354 , 643 P.2d 971 ], we hold that other defendants will not benefit from that windfall because a trial court need and should not instruct on a lesser included or lesser related offense which is time-barred.

While I am of course bound by Diedrich and therefore signed the majority opinion, I find myself in the anomalous position of disagreeing with a holding of the Bird-era Supreme Court which favored the prosecution. The fact is that Diedrich discriminates, and I submit invidiously, against a defendant who is in an “all or nothing” position because the lesser included or lesser related offenses, otherwise available to him, are time-barred.

Several remedies suggest themselves which would on one hand close the loophole through which these defendants…

[Opinion certified for partial publication. [*] ]

OPINION

AGLIANO, P.J. —

Defendants Harold Shamburger and Lloyd Brice were charged in connection with the murders of Jerome Nance and William Fisher. In the Nance trial, the jury found Shamburger guilty of first degree murder. (Pen. Code, § 187.) [1] In the Fisher trial, the jury found both defendants guilty of accessory to murder (§ 32) and not guilty of the remaining counts. Prior to the second trial, Brice had pled guilty to possession of material with intent to make an explosive device. (§ 12312.)

The trial court sentenced Shamburger to 25 years to life on the murder count and to the upper term of 3 years on the accessory count. The trial court sentenced Brice to the upper term of four years for possession of materials with intent to make an explosive device and to a consecutive term of eight months on the accessory count. A consecutive one-year sentence was imposed for a section 667.5, subdivision (b), enhancement.

For the reasons discussed below, the judgment of conviction of accessory to murder is reversed as to each defendant and the remaining judgments of conviction are affirmed.

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