Can a defendant argue that theft is not a lesser included or lesser related crime of burglary?

Defendant here is correct that theft is not a lesser included offense of burglary, because burglary can be committed without stealing. (See People v. Tatem (1976) 62 Cal.App.3d 655, 658; People v. Bernal (1994) 22 Cal.App.4th 1455, 1458.) It is unclear whether defense counsel here believed, incorrectly, that theft is a lesser included offense of burglary or whether he thought, correctly, that theft is a lesser related offense of burglary. In any event, we cannot conclude that defense counsel provided ineffective assistance by agreeing to instruct the jury on theft.

Page 14

(See generally People v. Birks (1998) 19 Cal.4th 108, 112-113, 136, fn. 19 [instruction on lesser related offense is proper upon the parties' mutual consent]; People v. Taylor (2010) 48 Cal.4th 574, 622.) Defense counsel could have believed there was a risk that if the jury did not have a "lesser" as an option, the jury would convict defendant of the greater crime of burglary. Stated otherwise, given a choice between all or nothing, the jury would go with all. To prevent the risk of an "all or nothing" outcome, defense counsel may have decided to give the jury an option.