Lohbauer

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.

*368 Defendant 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., she awakened in the bedroom of her residence in Simi Valley to see defendant standing in the hallway outside her door. She asked him what he wanted. He did not answer but simply walked out of the house. She had never seen defendant before and no one had ever given him permission to enter the house. Defendant testified that at the time of the incident he was intoxicated and mistakenly believed he had entered the home of a woman friend whose home he never before had visited. According to defendant, this friend had invited him to “stop by at any time that day or night.” Upon seeing complainant,…

I concur in the judgment of the court and its opinion. However, I would overrule People v. Collins (1960) 54 Cal.2d 57 [ 4 Cal.Rptr. 158 , 351 P.2d 326 ]. The rationale of Collins , even when read narrowly (ante, at pp. 371-372), does not satisfy the due process requirement of adequate notice to an accused. (People v. West (1970) 3 Cal.3d 595, 612 [ 91 Cal.Rptr. 385 , 477 P.2d 409 ].)

The rationale articulated in Collins subordinates elementary principles of due process to the vagaries of statutory organization. Under that decision, a person charged with begging (Pen. Code, § 647, subd. (c)) *374 could be convicted of prostitution (Pen. Code, § 647, subd. (b)), on the theory that the various subdivisions of Penal Code section 647 do not state different offenses, but merely define the different circumstances in which one may commit the misdemeanor of disorderly conduct.

Since I am unwilling to reaffirm in even a limited fashion a legal rationale that makes fundamental due process rights dependent upon accidents of criminal law codification, I would overrule Collins .

Respondent’s petition for a rehearing was denied June 17, 1981.

Penal Code section 647 provides in pertinent…

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 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., she awakened in the bedroom of her residence in Simi Valley to see defendant standing in the hallway outside her door. She asked him what he wanted. He did not answer but simply walked out of the house. She had never seen defendant before and no one had ever given him permission to enter the house. Defendant testified that at the time of the incident he was intoxicated and mistakenly believed he had entered the home of a woman friend whose home he never before had visited. According to defendant, this friend had invited him to "stop by at any time that day or night." Upon seeing…