Can a defendant plead not guilty to an uncharged charge that is not necessarily included in the alleged crime?

California, United States of America


The following excerpt is from Johnny v., In re, 149 Cal.Rptr. 180, 85 Cal.App.3d 120 (Cal. App. 1978):

The due process requirement that provides the basis for the inability of a court to convict a defendant of an uncharged offense not included as a lesser offense within the charged offense renders the court Without jurisdiction to convict defendant of a different offense. "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.)" (People v. West (1970) 3 Cal.3d 595, 612, 91 Cal.Rptr. 385, 395, 477 P.2d 409, 419.)

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