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LRO I

General Rules [§LRO-1]

A.  Due Process Violated By Instruction On Uncharged Related Offense Over Defense Objection [§LRO-2].  A conviction for an uncharged non-included offense implicates a defendant’s due process right to notice. (People v. Toro (89) 47 C3d 966, 973 [254 CR 811].)

It is fundamental under due process principles that a defendant cannot be convicted of a charge unless he has received notice from the accusatory pleading that he may be called upon to defend against the charge.  (People v. Geiger (84) 35 C3d 510, 526 [199 CR 45]; People v. Wolcott (83) 34 C3d 92, 101 [192 CR 748].)

Where an offense is neither charged nor necessarily included in the alleged offense, the trial court lacks jurisdiction to convict a defendant of the lesser related offense.  (People v. Lohbauer(81) 29 C3d 364, 368-69 [173 CR 453].)

People v. Geiger (84) 35 C3d 510 [199 CR 45] held that the defendant could obtain instruction on a lesser related offense upon request.  However, People v. Birks (98) 19 C4th 108 [77 CR2d 848] overruled Geiger, holding that lesser related instructions may only be given if both parties stipulate.

ALERT:                 But see LRO II for potential exceptions to Birks.

RESEARCH NOTES:  See FORECITE BIBLIO 17.10.

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