People v. Smith

We consider whether an allegation in the information expressly pled to preclude a grant of probation can also add an element to the offense charged so as to increase the term of confinement to which defendant is potentially subject.

Defendant was found not guilty by reason of insanity of seven counts of committing a lewd and lascivious act upon a child under the age of fourteen years (Pen. Code, § 288). He was committed to the State Department of Mental Health for a term not to exceed 57 years. On appeal, defendant contends the court erred in calculating the maximum term of commitment under Penal Code section 667.6, subdivision (c), rather than Penal Code *1102 section 1170.1. (All references to sections of an unspecified code are to the Penal Code.) We shall modify the order of commitment to reduce the maximum term in accordance with the views expressed herein.

The information charged defendant with seven counts of “violation of § 288 of the California Penal Code, a felony” in the following operative language: “. . . that ... he did wilfully, unlawfully, and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of Collette…