PEOPLE v. SMITH

PUGLIA, P.J.

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 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 . . . age 12, a child under the age of fourteen years, with the intent of arousing, appealing to, and gratifying the lust, passions and sexual desires of said defendant and the said child." Added to each count were the same five allegations under section 1203.066 relating to restrictions on probation eligibility: the offense was committed by the use of force, violence, duress, menace and threat of great bodily harm (§ 1203.066, subd. (a)(1)); the offense caused bodily injury (§ 1203.066, subd. (a)(2)); defendant used a weapon during the commission of the offense (§ 1203.066, subd. (a)(4)); defendant had been convicted previously of a violation of section 261 (§ 1203.066, subd. (a)(5)); and defendant occupied a position of special trust as stepfather of the victim (§ 1203.066, subd. (a)(9)). It was also charged as to each count that in the commission thereof, defendant personally used a deadly weapon, to wit, a knife (§ 12022, subd. (b)).

Defendant originally entered pleas of not guilty and not guilty by reason of insanity. Thereafter defendant offered to withdraw his not guilty plea and stand on his insanity plea "to all counts, enhancements and the like, . . ." Counsel could not agree on the maximum possible term of commitment and agreed the court could resolve the matter at a later date. The disagreement between counsel was precisely the same as that which now engages them on appeal. The court deferred decision on the maximum term but informed defendant that if it found section 667.6 applicable, defendant faced a maximum term of 68 years. With that understanding, but without waiving the point, defendant withdrew his plea of not guilty, waived jury trial and submitted the matter of his sanity on the doctors' reports. The court found defendant not guilty by reason of insanity and further found that defendant had not fully recovered his sanity (§ 1026, subd. (a)).

Section 1026.5, subdivision (a)(1), requires the court to state in the order of commitment to the state hospital the maximum term for which defendant may be kept in actual custody. For purposes of that section, the maximum term of commitment is the longest term of imprisonment that could have been imposed for the offenses committed by defendant if he had been so convicted, including the upper term of the base offense and any additional terms for enhancements and consecutive sentences which could have been imposed. (§ 1026.5, subd. (a)(1).)

At the hearing to determine the maximum term of commitment, the prosecutor argued that although each violation of section 288 was charged in the language of subdivision (a), the allegation annexed to each count restricting probation eligibility under section 1203.066, subdivision (a)(1), supplied the essential element to constitute each count in law a charge of violation of subdivision (b) of section 288. The probation restriction allegations charged "that the act alleged above [violation of section 288] was committed by the use of force, violence, duress, menace, and threat of great bodily harm, within the meaning of section 1203.066(a)(1) of the Penal Code." (Italics added.) The latter provision deals exclusively with probation ineligibility. Subdivision (b) of section 288 differs from subdivision (a) only in that it contains an additional element: the "use of force, violence, duress, menace or threat of great bodily harm."

Adopting the prosecution's theory, the trial court found "the actual allegation of the conduct [proscribed] by 288(b) is contained in the four corners of each count." The court therefore calculated defendant's maximum term of commitment under section 667.6, subdivision (c), which provides in relevant part: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of . . . subdivision (b) of Section 288 . . . whether or not the crimes were committed during a single transaction." Defendant was ordered committed to the State Department of Mental Health for a maximum period of confinement of 57 years.

Defendant contends the information charged violations of section 288, subdivision (a), rather than section 288, subdivision (b), and hence the provisions of section 667.6, subdivision (c), permitting the imposition of full, separate and consecutive terms "for each violation of . . . subdivision (b) of section 288" are inapplicable. Had the court properly computed his confinement period with reference to section 1170.1, he asserts, the maximum term of his confinement would be 21 years.

The question before us is whether in fixing the maximum term of commitment the trial court may look to a probation restriction allegation to supply an element of the offense not included in the language of the charge. We conclude it may not.

(1) Recently the Supreme Court considered in People v. Wolcott (1983) 34 Cal.3d 92 [ 192 Cal.Rptr. 748, 665 P.2d 520], whether a firearm use enhancement (§ 12022.5) is part of the accusatory pleading for the purpose of defining lesser included offenses. Holding that it was not (p. 101), the court pointed out that a use allegation does not prescribe an offense ( id., at p. 100; In re Culbreth (1976) 17 Cal.3d 330, 333 [ 130 Cal.Rptr. 719, 551 P.2d 23]); rather, it imposes additional punishment for an offense in which a firearm is used. Emphasizing that it becomes relevant only if the defendant is convicted of the substantive crime, the court concluded that it would disrupt the orderly procedure by which guilt is determined without reference to the enhancement if evidence of the enhancement must be considered in determining guilt of a lesser offense (p. 101). For the same reason, i.e., that the enhancement is not relevant unless and until defendant is convicted, the court doubted that the enhancement charge would provide constitutionally adequate notice to defendant that he must defend against a charge of lesser included offense (p. 101).

In the instant case, the probation restriction allegation charging use of force is not unlike the firearm use enhancement considered in Wolcott. It does not define a substantive offense; rather its function in the accusatory pleading is expressly to serve notice that evidence of force, violence, duress, menace or threat of great bodily harm will be offered in support of the allegation in an effort to prohibit the court from granting probation if defendant is found guilty of a violation of section 288. (See § 1203.066, subd. (d).) Like the enhancement alleged in Wolcott, the probation restriction allegation becomes relevant only upon defendant's conviction of the substantive offense. Accordingly, it would be equally disruptive of orderly procedure if, despite its limited postconviction purpose, it was to be considered by the fact finder in determining guilt.

Moreover, the issue of constitutionally adequate notice looms at least as large here as in Wolcott. Notwithstanding that a violation of either subdivision (a) or (b) of section 288 is identically punishable by a term of three, six or eight years, the two subdivisions define separate, albeit related, offenses. As noted, the offense defined in subdivision (b) consists of all the elements of the offense defined in subdivision (a) plus the "use [in the commission thereof] of force, violence, duress, menace, or threat of great bodily harm." There are potential consequences uniquely attending conviction under subdivision (b) that do not apply to subdivision (a). One of these which applies when there are multiple convictions under subdivision (b) is the imposition of full, separate and consecutive terms under section 667.6, subdivisions (c) and (d), rather than consecutive terms consisting of one-third of the middle term as prescribed by section 1170.1, subdivision (a). Yet the probation restriction allegations in the information do not mention section 667.6. They do not purport to inform defendant that conviction of the offenses charged in conjunction with establishment of the probation restriction allegations will also render him vulnerable to full rather than mitigated consecutive terms. Notice of the consequence is provided only by charging a violation of subdivision (b) of section 288. Other postconviction consequences of which a charge of violation of subdivision (b) of section 288 serves to give the only notice are the imposition of enhancements without limitation (§ 1170.1, subd. (i)), and ineligibility for Youth Authority commitment (Welf. Inst. Code, § 1732).

This array of serious consequences cannot be set in train by a plea to a substantive charge framed in the language of subdivision (a) of section 288 without doing violence to fundamental precepts of due process unless fair notice of such consequences is given. An allegation of fact expressly pled as required by subdivision (d) of section 1203.066 to provide notice that probation ineligibility will be in issue is not such notice. From the face of the information to which he pled, defendant was entitled to assume that while a grant of probation was foreclosed, the imposition of full, separate and consecutive terms was not in issue.

The probation restriction allegation is not a part of nor does it add to the substantive offense charged. The defendant was charged with violation of subdivision (a), rather than subdivision (b) of section 288, and his single plea of not guilty by reason of insanity necessarily constituted an admission of no more than was charged (§ 1016). Consequently, section 667.6, subdivision (c), is inapplicable to the determination of defendant's maximum term of confinement.

Defendant's maximum term of confinement presents a matter of simple calculation. We shall modify the order of commitment to reduce the maximum term from 57 to 21 years (see fn. 4, ante, p. 1104). The trial court is directed to amend the order of commitment accordingly and to furnish a certified copy forthwith to the Department of Mental Health. As modified, the judgment is affirmed.

Regan, J., concurred.