Does the law of the case doctrine preclude a litigant from seeking a writ of appeal against a finding that the trial judge was an impartial judge who failed to instruct on lesser included offenses?

^14. A trial court has a sua sponte duty to instruct on lesser included offenses "'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]'" (People v. Breverman (1998) 19 Cal.4th 142, 154.) If there was insufficient evidence to trigger the court's instructional duty, there was insufficient evidence to mandate the granting of a new trial or modification of the verdicts.

^15. If the writ review afforded the substance of the procedural protections to which a litigant would be entitled on appeal, such as oral argument and a written opinion, the law of the case doctrine might preclude that litigant from claiming, on appeal, that the trial judge was not impartial. (People v. Brown, supra, 6 Cal.4th at p. 336, fn. 11.)