Whether upholding a criminal conviction based on a jury instruction and legal standard that are more favorable to the prosecution than what was actually litigated at trial comports with due process and the right to trial by jury

QUESTION PRESENTED In aggravated assault prosecutions where self-defense is at issue, California juries are instructed that state law requires only a danger ofa battery or bodily injury to justify the use of force adequate to repel the attack. In unpublished dispositions of routine challenges to convictions under that rule, the state’s Courts of Appeal sometimes affirm with rote use of language drawn from the state’s cases, holding that juries could have found an absence of a danger of great bodily injury or death (which is required to justify a killing). Does upholding a verdict which a jury did not render, on an issue which the parties did not litigate, and on a basis more favorable to the prosecution, comport with the a state’s constitutional duty to provide criminal defendants due process of law and trial by jury? i