LRO IV
Preserving Objections To Instructions
On Lesser Related Offenses
(A) Both Parties Must Stipulate. When the jury is instructed on an uncharged lesser related offense without objection by the defendant, the defendant ordinarily will be held to have “impliedly consented” to the jury’s consideration of the offense and the matter may not be considered on appeal. (People v. Toro (89) 47 C3d 966, 969-70 [254 CR 811]; People v. Gragg (89) 216 CA3d 32, 42 [264 CR 765]; People v. Daly (92) 8 CA4th 47, 58 [10 CR2d 23].)
(B) Mere Failure To Object To Uncharged Related Offense Is Not Implied Consent. “It is fundamental that when a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. [Citations.] This reasoning rests upon a constitutional basis: Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. [Internal citations and quotation marks omitted.]” (People v. Lohbauer (81) 29 C3d 364, 368.) An exception exists when a defendant expressly or impliedly consents to have the trier of fact consider a nonincluded offense (People v. Toro (89) 47 C3d 966, 973). However, mere failure to object is not implied consent. (People v. Parks (2004) 118 CA4th 1 [defendant did not impliedly consent to conviction of a lesser related offense; having acquitted him of attempted murder and all lesser included offenses, the trial court thereafter lacked jurisdiction to convict him of attempted voluntary manslaughter].)
