People v. Lohbauer

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.

*368Defendant was charged by information with the “violation of Section 459 [of the Penal Code] ... in that ... he entered the house of [victim] . . . with intent to commit theft,” a felony. He pleaded not guilty, waived a jury trial and was tried by the court.

At trial the complainant testified that on September 15, 1978, at about 3 a.m.,…