The court held that, while this was not a lesser and included offense within section 288a, Penal Code, defendant could not complain that he was found guilty of the misdemeanor although not charged therewith, where defendant himself expressly asked the court to reduce his offense to a violation of section 650 1/2 (act that openly outrages public decency), thus tendering to the court an offense that charged him with public conduct thereby impliedly consenting that the information be treated as though it had been amended to add the element of public conduct. Said the court at pages 839-840: "In People v. Leech (1965) 232 Cal.App.2d 397 [ 42 Cal.Rptr. 745], a judgment of conviction, based on a jury verdict of guilty of a violation of section 417 of the Penal Code, was reversed because the information had charged a violation of section 245 and we concluded that the offense denounced by section 417 was not a necessarily included offense within that denounced by section 245. However, in Leech, the trial court had submitted the case to the jury under both section 245 and section 417.
See also People v. Marshall, supra, 48 Cal.2d 394, 397-398; In re Hess (1955) 45 Cal.2d 171, 174 [ 288 P.2d 5]; People v. Greer (1947) 30 Cal.2d 589, 596 [ 184 P.2d 512]; People v. Kerrick (1904) 144 Cal. 46, 47 [ 77 P. 711]; People v. Blunt (1966) 241 Cal.App.2d 200, 204 [ 50 Cal.Rptr. 440]; and People v. Chandler (1965) 234 Cal.App.2d 705, 708 [ 44 Cal.Rptr. 750]. Cf. People v. Gentry (1969) 270 Cal.App.2d 462, 474-475 [ 76 Cal.Rptr. 336]; People v. Powell (1965) 236 Cal.App.2d 884, 886 [ 46 Cal.Rptr. 417]; People v. Hensel (1965) 233 Cal.App.2d 834, 838 [ 43 Cal.Rptr. 865]; and People v. Leech (1965) 232 Cal.App.2d 397, 398 [ 42 Cal.Rptr. 745].)
An assault with a deadly weapon can be committed without violating any provision of Penal Code, section 417, as by firing a gun through a coat pocket without either drawing or exhibiting the weapon and without then being engaged in a fight or quarrel." (To the same effect see People v. Chavira, 3 Cal.App.3d 988, 991 [ 83 Cal.Rptr. 851], and People v. Leech, 232 Cal.App.2d 397, 399 [ 42 Cal.Rptr. 745].) Following this rationale the Courts of Appeal of this state have expressly and consistently held that Penal Code section 417 does not cover or define an offense lesser than, and necessarily included within, the crime of assault with a deadly weapon as proscribed by Penal Code section 245. (See In re Stanley B., 17 Cal.App.3d 530, 534, fn. 2 [ 95 Cal.Rptr. 116]; People v. Rasher, 3 Cal.App.3d 798 [ 83 Cal.Rptr. 724];People v. Siplinger, 252 Cal.App.2d 817, 823 [ 60 Cal.Rptr. 914] [cert.
Convictions of lesser uncharged crimes have been reversed or vacated where the conviction followed trial by the court (e.g., People v. Lohbauer, supra, 29 Cal.3d 364, 368 et seq.) or by jury ( In re Hess, supra, 45 Cal.2d 171, 173 et seq.; People v. Smith (1902) 136 Cal. 207, 209 [ 68 P. 702]; People v. Arnett (1899) 126 Cal. 680, 681-682 [ 59 P. 204]; People v. Murat (1873) 45 Cal. 281, 283; People v. Vanard (1856) 6 Cal. 562, 563 [ 42 Cal.Rptr. 745]; People v. Leech (1965) 232 Cal.App.2d 397, 398 et seq.; People v. Arnarez (1924) 68 Cal.App. 645, 648 et seq. [ 230 P. 193]; People v. Akens (1914) 25 Cal.App. 373, 375 [ 143 P. 795]).
In any event, Collins had neither redefined a "necessarily included" offense within the meaning of section 1159, nor departed from the rule of that statute; it had held only that rape was one crime within that meaning. (See People v. Escarcega (1974) 43 Cal.App.3d 391, 396-397, fn. 1 [ 117 Cal.Rptr. 595]; People v. Leech (1965) 232 Cal.App.2d 397, 399 [ 42 Cal.Rptr. 745].) Collins is not authority for any expanded definition of "necessarily included" offenses.
This last consideration was for many years thought to be a limitation on the Collins doctrine. ( People v. Leech (1965) 232 Cal.App.2d 397, 399-400 [ 42 Cal.Rptr. 745]; see also People v. Tatem (1976) 62 Cal.App.3d 655, 658 [ 133 Cal.Rptr. 265]; People v. Ramos (1972) 25 Cal.App.3d 529, 537, fn. 4 [ 101 Cal.Rptr. 230].
( People v. Lax (1971) 20 Cal.App.3d 481, 486-487 [ 97 Cal.Rptr. 722]; People v. Chavez (1968) 268 Cal.App.2d 381, 384-385 [ 73 Cal.Rptr. 865]; People v. Baca (1966) 247 Cal.App.2d 487, 491, fn. 3 [ 55 Cal.Rptr. 681].) However, in People v. Leech (1965) 232 Cal.App.2d 397 [ 42 Cal.Rptr. 745], the court held that the Collins reasoning could not be applied in a situation where the defendant was convicted of a lesser included offense involving a statute other than the one with which he had been charged in the information. A similar conclusion was reached in People v. Escarcega (1974) 43 Cal.App.3d 391, 396, footnote 1 [ 117 Cal.Rptr. 595], and, later, in People v. Tatem (1976) 62 Cal.App.3d 655, 658 [ 133 Cal.Rptr. 265].
The intent to steal in theft did not necessarily include the intent to injure property or to injure the business carried on by the possessor. (See also People v. Leech (1965) 232 Cal.App.2d 397 [ 42 Cal.Rptr. 745]; People v. Escarcega (1974) 43 Cal.App.3d 391, 398 [ 117 Cal.Rptr. 595].) A distinguishing feature in these cases is that in order to have found that the offense for which the defendant was convicted was included within the charged offense the charging information would have required an additional allegation limiting the scope of the charge.
Unlike the information in this case, the accusatory pleading in Marshall, though charging robbery, alleged all the elements of the included offense of which the defendant was convicted. Collins involved Penal Code section 261 (rape), and the distinguishing feature was that the subdivisions of the section do not state different offenses but rather describe the different circumstances under which an act of sexual intercourse will constitute the crime of rape ( People v. Collins, supra, 54 Cal.2d 57, 59; see People v. Escarcega, supra, 43 Cal.App.3d 391, 396, fn. 1; People v. Leech, 232 Cal.App.2d 397, 399 [ 42 Cal.Rptr. 745]). That principle has no application here.
However, under some circumstances, a defendant may be convicted of an offense not charged by name and not a lesser and included offense. The Attorney General argues that the evidence at the preliminary examination showed an attempt to rape and that that showing was sufficient notice to defendant to satisfy the requirements of due process, citing People v. Collins (1960) 54 Cal.2d 57 [ 4 Cal.Rptr. 158] . But Collins was distinguished and limited in People v. Leech (1965) 232 Cal.App.2d 397 [ 42 Cal.Rptr. 745]. (See also, People v. Ramos (1972) 25 Cal.App.3d 529, 537, fn.