In aggravated assault prosecutions where self-defense is at issue, California juries are instructed that state law requires only a danger of a battery or bodily injury to justify the use of force adequate to repel the attack. In unpublished dispositions of routine sufficiency-of-the-evidence challenges to convictions under that rule, the state's Courts of Appeal sometimes affirm with rote use of language drawn from the state's justifiable-homicide 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?

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