Opinion
E064300
01-10-2017
THE PEOPLE, Plaintiff and Respondent, v. MARIO DUENAS, Defendant and Appellant.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVA1301835) OPINION APPEAL from the Superior Court of San Bernardino County. Daniel W. Detienne, Judge. Affirmed in part; reversed in part. Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Mario Duenas appeals his conviction on three counts of lewd and lascivious acts on children under the age of 14 years, committed against two victims. He contends that his conviction on count 3 must be reversed because the court impermissibly allowed the information to be amended after the parties had rested, to conform to the victim's trial testimony. In the alternative, he contends that his conviction on count 3 must be reversed because the court failed to instruct on simple assault as a lesser included offense on that count. We agree that the amendment of the information requires reversal on count 3. We will otherwise affirm the judgment.
PROCEDURAL HISTORY
An information charged defendant with two counts of lewd and lascivious acts on Jane Doe 1, specifically that he rubbed her bare buttocks and orally copulated her while she was under the age of 14 years, in violation of Penal Code section 288, subdivision (a). The information also charged defendant with one count of lewd and lascivious acts on Jane Doe 2, specifically that he rubbed her vagina while she was under the age of 14 years, also in violation of section 288, subdivision (a). The information alleged that the crimes were committed against multiple victims, within the meaning of section 667.61, subdivisions (a), (b), and (e).
All statutory citations refer to the Penal Code unless another code is specified.
Defendant was tried by a jury. The jury found defendant guilty on all three counts and found the section 667.61 allegation true as to each count. The court sentenced defendant to three consecutive terms of 15 years to life in state prison.
Defendant filed a timely notice of appeal.
FACTS
Counts 1 and 2
In 2003 through 2004, defendant's stepson was Doe 1's stepfather. Doe 1 would occasionally spend time at defendant's home in San Bernardino. In 2003 or 2004, when Doe 1 was seven or eight years old, defendant drove her to a store to buy her a doll. When they arrived at the store and parked, defendant pulled Doe 1's pants and underwear down and orally copulated her for two to three minutes. They then went into the store and purchased the doll. Doe 1 did not tell her mother about the incident. At some point, she told her sister, but begged her not to tell anyone.
A year later, at defendant's home, defendant sat down next to Doe 1 while she was watching television. He put his hand on her lower back, then slid his hand toward her buttocks. Doe 1 squeezed her buttocks so he could not go "further." Defendant laughed, said something in Spanish that she could not understand, and then stopped. Doe 1 did not tell anyone about that incident at the time.
Count 3
Doe 2's parents were longtime friends of defendant. She called him "Tio Mario." When Doe 2 was six or seven years old, defendant began touching her vaginal area over her clothing. The incidents occurred in the guest room of defendant's house. The only incident Doe 2 could remember in detail was the final one. She was about nine years old. She was lying on a bed next to defendant's grandson, playing video games. Defendant touched her buttocks over her clothing. He began to move his hand downward, but Doe 2 stood up. She told him she would tell her mother if he ever did it again. Defendant left the room, and there were no further incidents.
The prosecutor elected to rely on this incident as the basis of count 3.
When Doe 1 was 17, she finally told her mother about the incidents with defendant. Doe 1's mother told Doe 2's mother, and both Does ultimately told the police what defendant had done to them. Doe 1's mother made two recorded pretext calls to defendant, who admitted having given Doe 1 a kiss on her vagina, through her clothing, and having touched her buttocks. He knew it was wrong, and said he felt horrible about it. At trial, defendant explained how the incident in the car had occurred and denied having any lewd intent. He denied having touched Doe 2's vagina and denied having touched her bare buttocks. He denied ever touching any part of Doe 2's body with a lewd intent.
The mothers were acquainted, either through business or socially. Both had had relationships with defendant's stepson.
LEGAL ANALYSIS
AMENDMENT OF THE INFORMATION VIOLATED SECTION 1009
After both sides had rested, the prosecutor stated that she could not "ethically" argue that defendant violated section 288, subdivision (a), by rubbing Doe 2's vagina as alleged in count 3 of the information, because Doe 2 had testified that defendant had not touched her vagina during the final incident, which was the only one she remembered in detail. The parties agreed that there was no evidence at the preliminary hearing that defendant had touched Doe 2's buttocks. Over defense objection, the court allowed the prosecutor to amend the information to strike the act originally alleged as the basis of count 3, i.e., the touching of Doe 2's vagina. The prosecutor informed the jury that the final incident, in which defendant had rubbed Doe 2's buttocks, was the basis for count 3. On appeal, defendant contends that this was reversible error.
Article I, section 14, of the California Constitution provides in pertinent part: "Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information." Our Constitution thus requires that "one may not be prosecuted in the absence of a prior determination of a magistrate or grand jury that such action is justified." (Jones v. Superior Court (1971) 4 Cal.3d 660, 666.) "'Before any accused person can be called upon to defend himself on any charge prosecuted by information, he is entitled to a preliminary examination upon said charge, and the judgment of the magistrate before whom such examination is held as to whether the crime for which it is sought to prosecute him has been committed, and whether there is sufficient cause to believe him guilty thereof. These proceedings are essential to confer jurisdiction upon the court before whom he is placed on trial.' [Citation.]" (People v. Burnett (1999) 71 Cal.App.4th 151, 165.) Section 739 provides in pertinent part: "When a defendant has been examined and committed . . . , it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed." "'[A]n information which charges the commission of an offense not named in the commitment order will not be upheld unless (1) the evidence before the magistrate shows that such offense was committed [citation], and (2) that the offense 'arose out of the transaction which was the basis for the commitment' on a related offense. [Citations.]'" (People v. Pitts (1990) 223 Cal.App.3d 606, 903, quoting Jones v. Superior Court, supra, 4 Cal.3d at pp. 664-665.) "A trial court has no jurisdiction to proceed on an information which runs afoul of this rule; such an information is defective and on motion must be set aside." (Pitts, at p. 903.)
"The same general rule holds where an amendment is concerned. Section 1009 provides in relevant portion: 'An . . . information may be amended by the district attorney, . . . without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained. The court in which an action is pending may order or permit an amendment of an . . . information, . . . for any defect or insufficiency, at any stage of the proceedings, . . . . An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination . . . .' [¶] Within the limitations expressed in Jones v. Superior Court, supra, 4 Cal.3d at pages 664-665, section 1009 gives the trial court discretion to permit an amendment of the information to charge any offense shown by evidence taken at the preliminary examination, at any time during trial, provided the defendant's substantial rights are not prejudiced thereby. [Citation.] Section 1009 preserves a defendant's substantial right to trial on a charge of which he had due notice. [Citation.] In other words, section 1009 protects a defendant's right to due process." (Pitts, supra, 223 Cal.App.3d at pp. 903-904, italics added.)
Defendant contends that these principles prohibited amending the information to delete the specific act it alleged as the basis for count 3 and submitting that count to the jury on the basis of facts not presented at his preliminary hearing.
The Attorney General points out that in Pitts, supra, 223 Cal.App.3d 606, the court held that a variance between the trial evidence and the preliminary hearing evidence does not violate the defendant's due process notice rights if it concerns an immaterial particular of the offense. (Id. at pp. 905-907.) She contends that the variance between the evidence at the trial and the evidence at the preliminary hearing was immaterial in this case, in that defendant's entire defense was that the incident was fabricated and that no contact of any kind occurred. The Attorney General is mistaken that defendant testified that no contact with Doe 2 occurred. Rather, he testified that he never touched her vagina or her bare buttocks, and he later denied that he ever touched any part of her body with a lewd intent. Doe 2 testified that he touched her buttocks, but did not say that he did so under her clothing. Rather, her testimony implies that he put his hand on her buttocks over her clothing. Accordingly, defendant's testimony could readily be understood as an admission that he did touch her clothed buttocks, but did so without a lewd intent. In Pitts, the court held that immaterial variances would include merely minor details, such as that the crime occurred at a different time but within the time frame alleged in the original information or in a different room of a house. (Id. at p. 906.) Because touching Doe 2's vagina or her buttocks is the method by which the crime was committed, it cannot be deemed a minor detail.
Moreover, a variance cannot be immaterial if "the defendant is misled in making his defense." (Pitts, supra, 223 Cal.App.3d at p. 906.) Pitts suggests that where a specific sexual act is alleged in the information, substituting a different act not shown in the evidence at the preliminary hearing is not an immaterial variance, particularly if the amendment was not sought until the close of the prosecution's case, because the change in the alleged acts would "affect medical testimony, cross-examination of the alleged victim(s), etc." (Ibid.) Here, there was no medical testimony, but because the victim herself testified that defendant did not touch her vagina, as alleged in the information, defendant had no reason to cross-examine her extensively to attempt to discredit her testimony that he had placed his hand on her buttocks. As defense counsel told the court when he objected to the proposed amendment, he would have cross-examined Doe 2 differently and would have pursued a different line of defense if there had been testimony at the preliminary hearing that defendant had not touched Doe 2's vagina but had instead touched her buttocks.
The Attorney General contends that People v. Peyton (2009) 176 Cal.App.4th 642 (Peyton) supports her contention that the amendment was proper. She points out, correctly, that in Peyton, this court held that it was permissible to amend the information to "change some of the counts from sexual penetration to oral copulation, and . . . to change the time frame these incidents occurred from October 1, 2005, to October 1, 2004." We held that this amendment did not prejudice the defendant's right to prepare and present a defense because the accusatory pleading at all times "consistently alleged four section 269 charges based on either oral copulation by means of force or duress . . . or sexual penetration by means of force or duress . . . . [T]he only difference between the amended complaint, to which defendant waived his right to a preliminary hearing, and the second amended information, upon which defendant was convicted at trial, is that the bases of two of the four alleged section 269 charges were changed from oral copulation to sexual penetration." (Peyton, at p. 659.) Moreover, the defendant's defense did not rest upon whether any specific instance involved one act or the other. Rather, he denied any illegal conduct at all, and "[n]owhere during the trial, whether through cross-examination, direct examination or argument, [did] it appear that the specific conduct underlying the section 269 charges was of significance." (Ibid.) The defendant also did not show that he was prejudiced by the change in the time frame. (Id. at pp. 659-660.) Accordingly, we held that counsel's failure to object to the amendment to the information with respect to those four counts did not deprive the defendant of his constitutional trial rights. (Peyton, at pp. 656-661.) Here, in contrast, the evidence at the preliminary hearing showed a particular factual basis for the sole offense alleged with respect to Doe 2. The prosecution could not rely on an entirely different factual basis for that offense at trial. (Pitts, supra, 223 Cal.App.3d at p. 906; § 1009.)
The issue was framed as ineffective assistance of counsel for failing to object to the amendments. (Peyton, supra, 176 Cal.App.4th at p. 652.)
People v. Graff (2009) 170 Cal.App.4th 345 (Graff) provides a better analogy to the instant case than does Peyton, supra, 176 Cal.App.4th 642. In Graff, the complaint alleged seven counts of lewd and lascivious acts on a person who was 15 years old. None of the counts alleged a specific act. (Graff, at p. 349.) Six of the counts were alleged against "Victim 1." At the preliminary hearing, Victim 1 testified about five incidents, two of which involved the victim masturbating in defendant's presence, at his request. The court found the evidence of the two masturbation incidents too vague. The court dismissed one count and bound the defendant over for trial on five incidents, each of which the court tied to a specific incident the victim had described, none of which involved masturbation. The subsequently filed information conformed to the court's rulings at the preliminary hearing. (Id. at p. 350-351.)
At trial, the prosecutor was allowed to introduce evidence of the masturbation incidents as uncharged offenses, pursuant to Evidence Code section 1108. (Graff, supra, 170 Cal.App.4th at p. 352.) Later, over defense objection, the prosecutor argued to the jury that it could rely on the masturbation incidents as substantive evidence of the charged offenses. (Id. at pp. 357-358.)
Evidence Code section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." --------
The appellate court reversed the convictions on all counts because the verdicts could have been based on evidence not shown at the preliminary hearing, i.e., the masturbation incidents. The court held that, contrary to the Attorney General's contention, it would not have been permissible for the prosecution to amend the information to add charges based on the masturbation incidents, in part because to do so would have been prejudicial to the defendant, in violation of section 1009: "Appellant was prejudiced by the failure of the prosecution to make its theory clear prior to the last phase of closing argument. In cross-examining Victim 1, defense counsel had no reason to pin down the dates of the masturbation incidents or to impeach Victim 1 with her earlier testimony that she could not remember when either of the incidents occurred. As noted in appellant's reply brief, counsel would certainly have cross-examined Victim 1 differently had he been aware that the prosecution intended to go forward on the charges dismissed by the commissioner. [¶] Moreover, even where the prosecution complies with the necessary procedures [to obtain leave to amend the information] and no specific prejudice is shown, appellate courts are compelled to reverse convictions where substantial evidence was presented at trial that did not correspond to the charges established at the preliminary hearing." (Graff, supra, 170 Cal.App.4th at pp. 362-363, citing, inter alia, People v. Burnett, supra, 71 Cal.App.4th at p. 184 and Pitts, supra, 223 Cal.App.3d at pp. 903-908.)
For the same reasons, amendment of the information in this case was impermissible and was prejudicial to defendant because he was misled in his defense. (Pitts, supra, 223 Cal.App.3d at p. 906; Graff, supra, 170 Cal.App.4th at pp. 361-362.) Accordingly, the conviction on count 3 must be reversed.
Because the conviction must be reversed on this ground, we need not address defendant's second contention, i.e., that the court erred in failing to instruct on simple assault as a lesser included offense on count 3.
DISPOSITION
The judgment of conviction as to count 3 is reversed. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: HOLLENHORST
Acting P. J. SLOUGH
J.