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PEOPLE v. LOHBAUER

Docket No. Crim. 21601.

29 Cal.3d 364 (1981)

627 P.2d 183

173 Cal. Rptr. 453

THE PEOPLE, Plaintiff and Respondent, v. ROBERT MICHAEL LOHBAUER, Defendant and Appellant.

Supreme Court of California.

May 4, 1981.

Attorney(s) appearing for the Case

COUNSEL

Charles L. Cassy, under appointment by the Supreme Court, for Defendant and Appellant.

Wilbur F. Littlefield, Public Defender (Los Angeles), Dennis A. Fischer and James Hallett, Deputy Public Defenders, Quinn Denvir, State Public Defender, and Jonathan B. Steiner, Chief Assistant State Public Defender, as Amici Curiae on behalf of Defendant and Appellant.

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Shunji Asari, Edward T. Fogel, Jr., and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RICHARDSON, J.

May a defendant be convicted of an offense which is neither specifically charged in the accusatory pleading nor "necessarily included" within a charged offense, when he does not consent to the substituted charge? We conclude that he may not.

Defendant was charged by information with the "violation of Section 459 [of the Penal Code] ... in that ... he entered...

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