¶1(dissenting):
¶2I concur with the majority opinion in holding that reckless manslaughter is a lesser included offense of second degree murder, but I cannot subscribe to the reasoning of the Court in support of that proposition or to the conclusion that a manslaughter instruction need not have been given in this case. I had thought that our recent opinion in State v. Baker, Utah, 671 P.2d 152 (1983), had finally placed the doctrine of lesser included offenses on a rational and consistent foundation. I submit that the majority opinion 1) unnecessarily beclouds the law of lesser included offenses, at least as to homicide offenses; and 2) establishes an incorrect standard for determining whether a lesser included offense instruction should be given.
¶3Probably no other doctrine of the criminal law has been addressed as frequently over the past few years by this Court as the doctrine of lesser included offenses. Since 1978 this Court has referred to that doctrine in no less than twenty-five different opinions. The problem that this Court has wrestled with must have also been encountered in a magnified form in the trial courts.
¶4*535State v. Baker, supra,provides a sound analysis of the differing rules which govern the doctrine of lesser included offenses and the closely related doctrine that governs when a defendant is entitled to an instruction on his theory of the case. In Baker, the Court distinguished between the doctrine of lesser included offenses when an instruction for a lesser included offense is requested by the prosecution and when a lesser included offense instruction is requested by the defense. As explained in Baker, the two situations are basically different for constitutional reasons. Because a defendant has a constitutional right to be given fair notice of the crime with which he is charged, and because of his right to have a jury pass on issues which he submits for resolution, a defendant stands in a different position with respect to the doctrine of lesser included offenses than does the State. The State is, as explained in Baker, entitled to a lesser included offense instruction only when “all the facts required to establish the' commission of the offense charged ” include all the facts necessary to establish the lesser offense. U.C.A., 1953, § 76-l-402(3)(a).
¶5In the instant case the Court unnecessarily adopts a different analysis and in effect, however unintentional, invites the giving of a lesser included offense instruction tendered by the State when it would violate a defendant’s constitutional right of notice. Why the Court chooses to depart from the analysis in State v. Baker is not clear to me; more important, it is fraught with potential mischief.
¶6Section 76-1-402(3) sets forth three categories of lesser included offenses:
(a) It [the lesser offense] is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) It constitutes an attempt, solicitation, conspiracy, or form of preparation to commit the offense charged or an offense otherwise included therein; or
(c) It is specifically designated by statute as a lesser included offense.
¶7State v. Baker was decided under subpara-graph (a). The Court, in the instant case, decides the case under subparagraph (c), although it could just as well have been decided under subparagraph (a) with exactly the same result. The majority’s theory in this case is that § 76-5-201 designates each of the homicide offenses as a lesser included offense of a greater homicide offense.
¶8Section 76-5-201(1) and (2) of the criminal code states:
(1) A person commits criminal homicide if he intentionally, knowingly, reck-, lessly, or with criminal negligence unlawfully causes the death of another.
(2) Criminal homicide is murder in the first and second degree, manslaughter, or negligent homicide, or automobile homicide.
¶9The majority position that § 76-5-201 constitutes a statute which “specifically designates” lesser included offenses, is a stretch of the statutory language. On its face, § 76-5-201 does not “specifically” designate any lesser included offenses. Furthermore, all homicide crimes are not necessarily lesser included crimes. There are simply too many instances of lesser homicide offenses including elements not included in a greater offense. If the trial courts were to take this Court at its word in the instant case, they could give a siaie-proposed lesser included offense instruction that would unconstitutionally deny a defendant adequate notice of the crime for which he was convicted in violation of his Sixth Amendment rights. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Argersinger v. *536Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
¶10Since first degree murder obviously cannot be a lesser included offense, it necessarily follows that only those degrees of homicide less than first degree can be considered lesser included offenses. A cursory inspection of the second degree murder statute, § 76-5-203; the manslaughter statute, § 76-5-205; the negligent homicide statute, § 76-5-206; and the automobile homicide statute, § 76-5-207, makes clear that there may be elements and facts of each of the degrees of homicide that are not included in the greater offense. Although a negligent homicide charge, for example, will almost always, if not always, constitute a lesser included offense of a charge of manslaughter, it does not necessarily follow that all lesser homicide offenses are included in a greater homicide charge. In general, each lesser charge tendered by the State will have to be analyzed with great care to avoid uneonstitutionality. Clearly, some of the lesser homicide offenses are not lesser included offenses of a greater offense.
¶11Under State v. Baker, supra,if a defendant requests an instruction on a homicide offense of a lesser degree than that charged, he is entitled to that instruction if there is some rational basis in the evidence to support the elements of that particular offense. It should be plain that the question is whether the jury could possibly find as the defendant requests, and not whether the trial judge, or an appellate judge, is of the view that the defendant is not guilty of the greater offense. For a trial judge to rule on that question on the basis of whether he or she thinks the defendant is guilty of the offense charged would be to usurp the constitutional right of a defendant to a jury trial on the issues which he is entitled to have submitted to the jury. This Court in State v. Gillian, 23 Utah 2d 372, 374, 463 P.2d 811, 812 (1970), stated:
One of the foundational principles in regard to the submission of issues to juries is that where the parties so request they are entitled to have instructions given upon their theory of the case; and this includes on lesser offenses if any reasonable view of the evidence would support such a verdict. This is in accord with the authorities generally, and with the adjudications of this court, as stated in a number of cases dealing with instructing on lesser offenses .... [Footnote omitted.]
¶12See also State v. Castillo, 23 Utah 2d 70, 457 P.2d 618 (1969) (propriety of self-defense instruction); State v. Hyams, 64 Utah 285, 230 P. 349 (1924); Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896). In State v. Johnson, 112 Utah 130, 141, 185 P.2d 738, 743 (1947), the Court stated that “the defendant is entitled to have the jury instructed on his theory of the case if there is any substantial evidence to justify giving such an instruction.” In State v. Ferguson, 74 Utah 263, 269, 279 P. 55, 57 (1929), Justice Straup, in a concurring opinion, stated:
If in a case of different degrees of the charged greater offense there is sufficient evidence to submit the case to the jury of the charged greater offense, I do not see wherein it is the prerogative of the court to direct the jury of what degree only the jury may find the defendant guilty, or direct them that, if they do not find him guilty of the charged greater offense they must acquit him. To permit the court to do that is to permit it to be the judge of the facts.
¶13In sum, a refusal to submit a defendant’s instruction on a lesser included offense would constitute a denial of the defendant’s constitutional rights to trial by jury and due process of law if there is any substantial evidence to justify the instruction. See Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).
¶14A State request for a lesser included offense instruction must be decided on a different basis. Fundamental to the criminal law is the principle that a defendant cannot be fairly and constitutionally prosecuted unless he has been put on fair notice of the exact nature of the charge made against him by the State. Faretta v. Cali*537fornia, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Under our constitutions a person may not be convicted of a crime not charged and for which the defendant had no opportunity to prepare. In State v. Howell, Utah, 649 P.2d 91, 95 (1982), we stated:
We are not unmindful that there is a direct and significant relationship between the crimes the State charges and the ability of the defendant to defend himself. Due process requires that a defendant have adequate notice of the charges against him and sufficient time to prepare his defenses. Necessarily, the defendant gears his defenses to the allegations of the information and the bill of particulars. It is obviously impossible to defend adequately against charges which are not specified until the moment of instructing the jury, unless the charge is a lesser and clearly included offense. Under the Utah definition of a lesser included offense, there can be no unfairness to the defendant in giving a lesser included offense instruction because of lack of notice or preparation since no element may be included in the lesser offense that is not included in the greater offense. [Footnote omitted.]
¶15If a homicide charge lesser than that charged in the information is included in the instructions at the instance of the prosecution, it may only be done upon the most careful and precise analysis of “all the facts required to establish the commission of the offense charged,” § 76-1-402, see State v. Howell, supra,and the conclusion that no facts beyond those necessary to establish the offense as charged are necessary to make out the lesser included offense; if additional facts are necessary to prove the lesser offense, a lesser included offense instruction may not be given even though such facts may be in the record because of the defendant’s lack of opportunity to prepare to rebut those facts; and the giving of the instruction would not prejudice the defendant in presenting his proof or affirmative defenses. In a homicide case, however, where the differences between the lesser and greater offenses are simply in the characterization of the defendant’s mental state — recklessness versus negligence, for example — an instruction on the lesser included offense should be given since it is the jury who are preeminently qualified and constitutionally charged to make such judgments, and decidedly not judges, either trial or appellate.
¶16The majority in the instant case ignores these principles in determining, as a matter of law, that all criminal homicide cases constitute a lesser offense of a greater homicide offense. Furthermore, in determining when a lesser included offense instruction should be given, the Court states:
In the familiar circumstance where all the facts required to prove the commission of the lesser offense are included within the facts required to establish the commission of the offense charged (§ 76-l-402(3)(a)), the evidence that could serve as a basis for convicting of the greater offense could always serve as the basis for convicting of any lesser offense. If the jury were free to acquit of the greater offense and convict of any lesser offense simply because the lesser offense had been proved, this would allow the jury to preempt the prosecutor’s function in charging offenses and the judge’s function in imposing sentences. This is why an instruction on a lesser included offense (even one that must necessarily have been proved by the evidence on the charged or greater offense) is inappropriate unless there is a basis in the evidence upon which the jury could acquit of the greater offense and convict of the lesser offense.
¶17That language seems to be an invitation to trial judges to intrude unconstitutionally on the prerogatives of the jury and on the constitutional right of a defendant to have his case decided by a jury and not a judge.
¶18The Court’s more solicitous attitude toward the “prosecutor’s function in charging offenses, and the judge’s function in *538imposing sentences,” than to a defendant’s constitutional right to a trial by his peers evidences little deference to a fundamental constitutional principle. The right to trial by jury is almost always one of those rights that is the first to be dispensed with when free institutions perish. Of course, the majority’s opinion does not go so far, but it is, nonetheless, in my view, an intrusion on that principle which should be resisted.
¶19In addition, it is inappropriate to contend that allowing a jury to render a verdict on a lesser included offense, when it could also convict of a greater offense, somehow “preempts the prosecutor’s function.” That is not the case. The prosecutor made his charges long before the jury was ever empaneled. Furthermore, it must not be forgotten that on occasion prosecutors, despite the Code of Professional Responsibility, overcharge for the purpose of obtaining a. favorable plea bargain. Indeed, I submit that there have been a number of cases which have been before this Court where it has been clear from the record that a prosecutor has, for example, charged second degree murder when in fact the defendant should have been convicted of manslaughter or criminal negligence.
¶20The enshrinement of the 'right to a jury trial in our Constitution was based upon a centuries-long tradition of reliance upon juries to mitigate and counter any overreaching by the State. Since such has been our long tradition and our hard-won heritage, I would adhere to that view and emphatically hold that it is for the jury to decide, not an agent of the State, which of several closely related criminal offenses appropriately describes the acts committed by a defendant. However, the jury is preempted from performing that function if the judge may first “weigh” the evidence to decide whether the defendant should be acquitted of the charged offense before the judge gives the lesser offense instruction.
¶21Nor is there a logical foundation for the majority’s assertion that allowing a jury to decide which charge best fits the' defendant’s conduct somehow preempts a judge’s function of sentencing. That function is to pronounce sentence on the crime proved and the verdict rendered.
¶22I recognize that § 76-1-402(4) states that a court “shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” For the reasons stated in State v. Baker, I submit that subsections (3) and (4) of § 76-1-402 apply only to the prosecution. But if subsection (4) is construed to be applicable to both the prosecution and the defense, then that section must be construed to accord recognition to the clear-cut constitutional values at stake — most importantly the right to a jury trial.
¶23It is preeminently the function of the jury to assess credibility; that is not a ■function of judges, trial or appellate. In most cases, therefore, the trial judge, in deciding whether to give a defendant’s proposed lesser included instruction, will have to take into account the possibility that the jury may disbelieve the testimony relating to the additional element of the greater offense. Thus, for example, a charge of reckless homicide will almost always, if not always, require a lesser included offense instruction on criminal negligence if sought by the defendant. Essentially, the difference between the two is how one characterizes the state of mind of the defendant in determining whether he was reckless or negligent in performing a prohibited act, and that is a question which a jury ought to decide because there will always be a “rational basis” for acquitting on recklessness and convicting on criminal negligence. It is the kind of question that a group of persons supposedly representing a cross section of the community is better equipped to decide than is one person. In all events, the giving of a lesser included offense instruction no more interferes with the prose-cutorial function of charging an offense, or with the judicial function of imposing sentence, than does the jury’s right to acquit.
¶24Finally, a 1980 amendment to the criminal code in effect requires the same con*539struction of subsection (4) that the Constitution requires. Section 77-17-1, Laws of Utah 1980, Ch. 15, § 2, provides: “When it appears the defendant has committed a public offense and there is reasonable doubt as to which of two or more degrees he is guilty, he shall be convicted only of the lower degree.” Obviously, this section presupposes that a defendant could be convicted of a greater crime, and it also presupposes that a lesser offense instruction should, nevertheless, be given. For § 77-17-1 to have any effect, a trial judge must permit the jury to make a decision as to which of two or more degrees of a crime a defendant is guilty.
¶25Finally, the majority states that in determining whether a lesser included offense instruction should be given at the behest of a defendant, the court must view the evidence and inferences that can be drawn from it in the light most favorable to the defense. State v. Gillian, 23 Utah 2d 372, 463 P.2d 811 (1970). I agree with that standard, as far as it goes. But the inquiry is not whether a judge thinks the defendant should, in fact, be acquitted, but only whether a reasonable jury could acquit on the greater charge and find guilt on the lesser charge. Furthermore, the standard stated by the majority does not deal with the all-important issue of credibility. I submit that a trial court, in addition to applying the test as stated above, must also assume that the jury may disbelieve that evidence necessary to prove the additional element or elements of the greater crime, unless it would be irrational to so do, as when that element is proved by physical evidence or stipulation.
¶26The person who was most clearly responsible for the killing in this case was Thomas Garcia. In a separate suit, he was convicted of second degree murder — the same murder which is the subject of the instant action. However, the degree of culpability of the defendants in this case under the second degree murder statute is less clear than was Garcia’s.
¶27Although defendants’ claims of innocence are hardly compelling, I think the evidence — which I shall not review — warranted an instruction on manslaughter. The jury deliberated some eleven hours; it must have had some doubts on critical points, at least as to one of the defendants. Indeed, the difference in the evidence of culpability in the Garcia case and the instant case may well have been the reason why Garcia and the defendants in the instant case were tried separately. I submit that the jury should have been given a manslaughter instruction and a choice between a second degree murder conviction and manslaughter conviction.
¶28In my view, the defendants are entitled to be retried.
¶29. This Court has in the past referred to all the "elements of the crime” rather than "all the facts.” E.g., State v. Williams, Utah, 636 P.2d 1092 (1981).