I respectfully dissent.
Although obvious benefits will accrue to the criminal defendant by reason of the majority’s new rule, the fact remains that its holding may well result in a massive interference with, and erosion of, the prosecutor’s discretionary function to select the offenses of which the defendant may be charged and convicted. Moreover, I find no constitutional or statutory basis for affording the defendant the right to jury instructions regarding lesser offenses which are not necessarily included within the charged offense. (See Pen. Code, § 1159 [permitting conviction of “necessarily included” offenses].)
Justice Feinberg expressed my views with his words in People v. West (1980) 107 Cal.App.3d 987, 993 [165 Cal.Rptr. 24], “To hold that a defendant can require that a jury be told that he can be convicted of crime X when he has been charged with crime Y, a charge that does not necessarily include crime X, is to hold that the defendant, in effect, has the power to determine what crime he is charged with, a power that resides exclusively with the prosecution. ” (Italics added; accord, People v. Gutierrez (1982) 137 Cal.App.3d 542, 548-549 [187 Cal.Rptr. 130].)
In addition to interfering with the prosecutorial function, I foresee that the majority’s new rule may well be quite difficult to apply. Justice Wiener in Gutierrez observed that “There are no . . . definitions or limitations with respect to offenses which are not ‘necessarily included’ to effectively guide the trial court in deciding whether to give the requested instruction. We will not add an additional trial court requirement which may well frustrate, rather than contribute to the administration of justice.” (P. 549.)
The majority attempts to set guidelines for determining under what circumstances additional instructions are required, but these guidelines are too imprecise and broad to be of much value (requiring, as they do, that “some basis” exists for finding the uncharged offense was committed; that the uncharged offense be “closely related” to the charged offense; and that defendant has “relied” at trial on a defense “consistent” with a conviction on the uncharged offense). Predictably, trial judges and juries alike will have great difficulty applying the majority’s vague and uncertain standards.
Until today, no California case had suggested that instructions on related but nonincluded offenses are constitutionally mandated. Moreover, thus far, the United States Supreme Court has required, as a matter of due process, instructions only on included lesser offenses, and has limited that require*534ment to capital cases. (Beck v. Alabama (1979) 447 U.S. 625, 638-643 [65 L.Ed.2d 392, 403-406, 100 S.Ct. 2382].) In my view, allowing defendants to demand instructions on nonincluded lesser offenses will generate unsound compromise verdicts which nullify the prosecutor’s right and responsibility to charge the offense or offenses he deems appropriate under his view of the evidence.
Upholding the prosecutor’s traditional charging authority will not result in unfair prejudice to the defendant. Our justice system has for generations operated on the assumption that a properly instructed jury will simply acquit a defendant if it finds the evidence insufficient to support the prosecutor’s theory of the case.
I would affirm the judgment.
Respondent’s petition for a rehearing was denied February 29, 1984.