Opinion
Super. Ct. No. CRF043471
NOT TO BE PUBLISHED
RAYE, J.
Defendant was charged by information with three counts of lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)) based on incidents that occurred on two successive nights in 2000 and a third incident that occurred in 2004. The victim was the son of defendant’s sister, with whom defendant was residing on the occasions in question.
Concerns arose about defendant’s mental state during his jury trial. The jury ultimately convicted defendant on all three counts. Sentenced to 10 years, defendant appeals, arguing: (1) the court erred in delaying a competency hearing until the end of the trial, (2) the court abused its discretion in having defendant removed from the courtroom, (3) the court erred in permitting an amendment of the information, and (4) instructional error. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution presented evidence that defendant is the uncle of E., the son of his sister. In 2000 defendant lived temporarily with his sister, E., and E.’s siblings.
During this period, defendant touched E. while the two were in E.’s bed. Defendant wore only shorts; E. wore a shirt and shorts. After the pair went to bed, defendant began “humping the bed” for about five minutes. E., then nine years old, laughed to himself. Defendant had been drinking.
About 10 minutes later, defendant, whose shorts were pulled down, grabbed E.’s hand and placed it on defendant’s penis. E. described defendant’s penis as “hard and sweaty.” The touching lasted three seconds; E. got up and left the bedroom.
E. knocked on his mother’s bedroom door, but she did not answer and E. went to sleep in the living room. He did not tell his mother about the incident because he was embarrassed.
The next evening, E. again slept with defendant. E. thought he would be safe sleeping with defendant because he did not believe defendant was drunk. With the lights on, E. lay down beside defendant, who wore only shorts. About 10 minutes after the lights were turned off, defendant grabbed E.’s foot and placed it on defendant’s penis, which was hard. A few seconds later, E. got up and went to the living room to sleep.
The next morning E. told his mother that defendant had put E.’s foot on defendant’s penis. E.’s mother became upset and began yelling. She said she was glad defendant was leaving.
The third incident occurred in May 2004 when E. lived with his family in a trailer. Defendant had been staying with the family for about two weeks. One evening, E.’s mother left the children with defendant. E. had not seen defendant for several years.
E. testified that he fell asleep on the bed while watching television. Defendant woke E. up and told him: “I am not gay, don’t take it that way, don’t tell anybody what happened.” Confused, E. continued to watch television.
Defendant put his hand on E.’s leg, between the knee and the thigh. E. hit defendant’s hand away and eventually fell asleep. When E. awoke, his pants were pulled down to his knees, but his underwear was still on.
E.’s mother opened the bedroom door and asked, “What’s going on?” E. pulled up his pants and saw that, under the covers, defendant’s “pants were like off.” Defendant pulled up his pants.
E. told his mother about defendant’s comment that he was not gay. He knew defendant had been drinking prior to the incident. E. slept with his mother on the couch in the living room. During the night defendant twice tried to wake E., asking E. if he wanted to sleep with him.
E. testified that he had become confused over the timing of the incident in which defendant placed E.’s foot on defendant’s penis. During a multi-disciplinary interview (MDI), E. stated that the incident took place in May 2004, not in 2000.
During cross-examination, E. reaffirmed that the incident took place in 2000, when he was nine years old. E. explained that he was confused and nervous during the interview because the interviewer “was saying questions for me and then she would switch to where I was nine and then I got confused.”
E.’s mother also testified about the aftermath of the three incidents. She affirmed that her brother lived with the family in 2000. However, according to E.’s mother, after the first two incidents E. only told her that defendant had been “humping the bed.” She told E. that defendant needed to leave.
Defendant stayed in the family’s apartment for another nine months before moving. E.’s mother did not allow any of the children to sleep with him. She never spoke with defendant about the incident because she was afraid.
In 2004 defendant again lived with the family, in their trailer. One evening E.’s mother left the children with defendant for about two hours. When she returned she asked where E. was and the children told her he was in the bedroom with defendant.
E.’s mother found the bedroom door closed. She opened the door and turned on the light. Defendant and E. both jumped up and E.’s mother asked what was going on. E. and defendant both replied, “Nothing.”
E.’s mother told E. to get out of the room. According to E.’s mother: “And I stood there and waited for [E.] and they were under the covers and [E.] was under the covers going like this, like he was pulling up his pants. [¶] And I said ‘[E.], you need to come . . . sleep out on the couch.’ [¶] And I stood there and waited for him while he did that. Pulled up his pants, this is what it looked like to me, under the covers and then I walked down the hall way and waited for him on the couch.”
E. told his mother that defendant had been “humping the bed.” He also told her, “Mom, I’m not gay.” E. then told her about the incident in which defendant rubbed E.’s foot against defendant’s penis. After E. and his mother went to sleep on the couch, defendant came in twice and tried to wake E. up.
The next morning E.’s mother asked defendant why he tried to wake E. up. Defendant told her he thought E. would be more comfortable in the bed. E.’s mother did not ask defendant about the foot incident. Nor did she tell E.’s father about defendant’s conduct because she feared his anger. Twelve days later she told her counselor about defendant’s touching E.
Myles Montgomery, a county emergency response worker, testified about his subsequent interview with E. Montgomery interviewed E. at school. E. told him about the May 2004 incident and then told Montgomery something had happened previously when E. was nine. E. became upset and the interview ended shortly after. E. did not disclose details of the earlier molestation.
Defendant testified in his own behalf. He repeatedly and adamantly denied ever molesting E. Defendant testified that while living with Kathy and her family in 2000, he drank “[a]ll the time.”
Defendant recalled the incident in which E. was in defendant’s bed and E.’s mother walked into the room. Defendant, who had been drinking beer, was unaware E. was in the room until E.’s mother came in. Defendant had been asleep and did not touch E. When he woke up, defendant’s pants were on. He denied getting up during the night and approaching E.
Defendant had previously been arrested for allegedly beating his girlfriend. Although not convicted of assault, defendant had been convicted of violating a restraining order. Defendant did not know about the restraining order but pled guilty because his lawyer told him to.
During cross-examination, defendant acknowledged having consensual sex when drunk. Sometimes he could recall the incident; sometimes he could not. Defendant also recalled occasions when he was drunk and had taken a partner’s hand or other body part and placed it on his penis.
At age 19, defendant was convicted of sexual battery on a 14-year-old girl based on consensual sex. He was sentenced to a “couple weeks” in jail and probation.
Defendant testified he would never intentionally molest anyone. When arrested, defendant told officers he had not touched E.
During an interview with Deputy Gary Galvan, defendant acknowledged he sometimes had blackouts after drinking. He denied touching E.
The jury found defendant guilty of the three counts. The court sentenced defendant to 10 years: the midterm of six years for count 1 plus consecutive terms of two years each for counts 2 and 3. Defendant filed a timely notice of appeal.
DISCUSSION
Competence
Defendant argues the trial court erred in failing to suspend trial for a competence determination under Penal Code section 1368. According to defendant, substantial evidence showed him to be mentally incompetent during trial. In support, defendant cites his trial testimony, his disruption of the court’s reading of the jury instructions, his comments out of the jury’s presence, and competency reports by Shawn Johnston, Ph.D., and Captane Thomson, M.D. In order to assess defendant’s claim, we consider his behavior during trial as well as the section 1368 reports.
All further statutory references are to the Penal Code unless otherwise indicated.
Trial Testimony
Defendant cites lengthy portions of his trial testimony, contending his numerous odd and bizarre responses reflect a marked lack of competence. We review defendant’s testimony in its entirety to place these comments in context. His bizarre comments to the contrary notwithstanding, during the prosecution’s case, defendant also calmly and lucidly answered questions on a variety of topics.
Defendant unequivocally denied molesting E. He coherently described his alcohol abuse. Defendant also discussed cogently his relationship with E.’s mother and his memory of the 2000 and 2004 incidents. On minor topics, such as his occupation, date of birth, prior conviction, and family history, defendant testified calmly and rationally.
However, from early in his testimony, defendant expressed feelings of stress and discomfort. Defendant made random remarks about being a victim and having his life taken away from him. Defendant complained his “thought process, is not what it was at one time” and asked rhetorically, “What the hell am I doing?”
As his testimony continued, defendant stated he was not in his “right state of mind” because he was locked in a box. He complained of an odor in his cell and said he had only four hours of sleep in the past week. Defendant testified: “I believe that where I am staying at in my cell, there is an odor that is fuming in my cell that I smell that believes –- that keeps me to where I am intoxicated as we speak.” Later, when asked if anything was affecting his ability to understand questions, defendant replied “[s]leep deprivation.”
Subsequent questioning concerning the 2004 incident elicited a series of “I don’t know” responses from defendant. Defendant could not remember details surrounding the incident and could not remember the 2000 incidents. However, on cross-examination, defendant again adamantly denied ever intentionally molesting or touching E.
At the close of his testimony, defendant stated “sin” got him locked up in prison. According to defendant, the sin was alcohol, “being impaired and making my judgment impaired.”
Reading of Jury Instructions
Outside the jury’s presence, the trial court inquired about defendant’s state of mind. Defendant replied that he felt fine and was ready to continue. Defendant then stated: “My testimony is so bogus. I didn’t know –- I can’t prove it . . . .” The court affirmed that defendant understood he was in a courtroom and understood the charges against him.
The court explained the jury instruction process, closing argument, and deliberations. Defendant said he did not understand because he was not familiar with the law. The court explained the process in more detail. Defendant then stated he was ready to proceed.
After the jury returned, the trial court began instructing them. Defendant suddenly interjected: “I object. I am done with this. This is a lie. I don’t want this attorney. I am done. I can’t have an attorney. I divulge my information to this lady about everything and I know . . . .” The court attempted to intervene, but defendant continued: “This lady [defense counsel] is lying about -- I have told her some things, sir. I am trying to be calm.” The trial court immediately called a recess.
Outside the jury’s presence, the court asked defendant what caused his outburst about his counsel. Defendant accused his counsel of not “playing fair” and violating his rights. Defense counsel requested a Marsden hearing. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).)
Marsden Hearing
During the Marsden hearing, defendant blamed his outburst on frustration. Defendant also made several references to God and the Bible and asked the court if it was without sin. The court warned defendant about being disruptive.
The trial court then said: “I guess the issue at this point, Miss Jessee [defense counsel], is whether or not he is faking it, which there is some support for that, or whether or not he is actually incompetent?” Defense counsel stated that defendant had been having difficulty “tracking.”
When defense counsel spoke to defendant prior to his trial testimony, he complained about a smell that he thought was affecting him. Defense counsel thought the smell was cleaning solution inside his cell. Defendant also believed one of his cellmates was the son of one of the jurors. Defendant subsequently told defense counsel he believed the Russians put something in the vents of the vehicle used to transport him. Defendant also told her his cellmate had killed his father.
Defense counsel stated that defendant’s statements caused her concern and that she had informed the court she had doubts about defendant’s competency. Defense counsel concluded: “And I thought we might make it through but right now do not believe that he can assist me.”
The trial court asked defendant a series of questions aimed at ascertaining whether defendant understood what was going on in the courtroom. Defendant understood the charges against him, recognized defense counsel as his attorney, and understood her role in the trial. Defendant also understood the role of the prosecutor.
The court concluded that defendant knew where he was, knew the purpose of the trial, and understood the role of counsel. However, the court also acknowledged something was troubling defendant, and the court had to ascertain if this preoccupation would prevent defendant from participating in the trial. The court noted defendant’s outburst during the instructions was the first time he had been disruptive.
The court decided to have defendant evaluated over the lunch hour. The prosecution asked the trial court: “So was there a Marsdendenied -- we are looking at 1368 instead?” The court replied: “We are looking at 1368.”
Welfare and Institutions Code Section 5150 Evaluation
After lunch, the trial court explained that jail personnel had informed him they could not do a Penal Code section 1368 evaluation in the time requested; there were no available personnel with the requisite expertise. Thinking it might be of some help, the court asked the Department of Mental Health to evaluate defendant under Welfare and Institutions Code section 5150 to determine whether he had a mental disorder that made him a danger to himself or others. The section 5150 examination determined that defendant did not meet the criteria for hospitalization because of a mental disorder or being a danger to himself or others.
Welfare and Institutions Code section 5150 states, in part: “When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation . . . may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.”
Trial Court’s Ruling
The trial court thereafter expressed its determination to resume the trial so long as defendant indicated his willingness to be present and follow the rules of the court. Because defendant’s counsel had expressed a doubt as to whether he could assist her in the preparation of a defense, the trial court would request a section 1368 evaluation. However, the court was of the view that “at the present time based on my lengthy inquiry with him this morning, I do not believe there is substantial evidence that objectively generates a doubt such that I should suspend proceedings at this time. [¶] And since we are in a multi-day jury trial in which all the evidence is in and all that remains is for instructions and the arguments of the lawyers, our preference is to complete the trial. [¶] In the event Mr. Plots is acquitted, then he is no worse off. In the event he is convicted, as I said, my intention is to submit a request for a psychologist to evaluate him pursuant to 1368. [¶] If there is that sort of finding, then we can address the issue as to whether he was incompetent prior to today’s date or what the ramifications of that finding would be.”
Defense counsel moved for a mistrial, arguing defendant’s outburst had prejudiced him. Defense counsel also believed defendant’s outburst came from “something more than just obstreperousness.” The court denied the motion but agreed to instruct the jury to disregard defendant’s outburst.
The trial court again warned defendant not to disrupt the proceedings, brought in the jury, and began to resume the instructions. Shortly thereafter, defendant announced he wanted to speak with the court outside the jury’s presence.
Outside the jury’s presence defendant said, “Boy, boy, boy. [¶] . . . [¶] [S]ounds like we got a dilemna [sic] here, don’t we? [¶] . . . [¶] . . . Somebody here is lying.” The court announced defendant would be removed from the courtroom.
Defendant asserted: “Somebody is lying. I can’t tell a jury. Where is my glasses? You took my glasses. You took my glasses, didn’t you? Assisted by Miss Lenzi [the prosecutor]. [¶] The system is jacked. [¶] Ow. Fuck. Come on, people.” A scuffle broke out between defendant and several deputies as he was removed from the courtroom.
The court reaffirmed its previous ruling, noting it did not know defendant’s mental status: “Whether or not he is 1368 remains to be seen. Since the only remaining procedural issues are the instructions and the arguments, I don’t want to stop that.”
The court also expressed reservations about defendant’s mental state: “I share the concern that the People have, if he is malingering, which I do not know, I do know there has not been substantial [evidence] presented this morning that he is not competent, but if he is malingering he should not benefit from that conduct.” The court again pointed out that the trial was almost over, and that if defendant was convicted the question of his competence could be addressed prior to judgment. The court concluded defendant would not be prejudiced by continuing with the trial.
Immediately after the verdicts, the trial court ordered defendant to undergo a section 1368 evaluation. The court did not formally suspend the criminal proceedings; however, it did not set the matter for sentencing given the pending section 1368 evaluation.
The trial court stated defendant was not present since jail personnel had informed the court that defendant was agitated and uncooperative.
Section 1368 Evaluations
At the trial court’s request, Dr. Thomson examined defendant on September 23 and 30, 2004. Dr. Thomson concluded that defendant was either unwilling or unable to conduct himself appropriately during the latter stages of the trial. Defendant was frightened, but that did not completely explain his behavior. Instead, Dr. Thomson theorized that defendant’s behavior revealed a “continuing major personality disorganization.”
Dr. Thomson concluded: “While malingering is possible, I doubt that he is feigning mental illness to escape punishment. The reaction seems more likely an hysterical dissociative episode or sleep deprived manic episode that has led to his forcible ejection from the courtroom and, in retrospect, has clearly affected his ability to cooperate rationally with counsel during the preparation of his own defense, particularly during his own testimony, which was reportedly not coherent. [¶] It would be my recommendation that he be found not competent to stand trial and that he receive a period of treatment in state hospital to restore his competence.”
Dr. Thomson also testified during the hearing on defendant’s motion for a new trial. In his opinion, defendant’s psychotic condition “likely” affected his ability to cooperate with counsel during defendant’s testimony at trial. However, during cross-examination, Dr. Thomson acknowledged he could not rule out the possibility that defendant was malingering.
Dr. Johnston examined defendant in jail on October 19, 2004, a month after the trial, and prepared a report for the trial court. Dr. Johnston noted: “Mr. Plots also spontaneously stated that at the end of the trial he had ‘flipped out’ or had a ‘nervous breakdown.’ He explained that he simply could not believe he was being charged with these crimes or that he is that type of person. He said that for a short period of time toward the end of the trial he became paranoid, believing that everyone was acting against him. Mr. Plots also speculated that he would have been acquitted by the jury had he not ‘flipped out.’ [¶] Mr. Plots went on to say that he now feels ‘normal.’ He very clearly said that he is nervous and scared, but that his thinking is now clear. He denied the presence of suicidal and ‘paranoid’ feelings at this time.”
Dr. Johnston believed defendant may suffer from an alcohol abuse disorder and possibly a polysubstance abuse disorder, including marijuana, methamphetamine, and cocaine. Dr. Johnston noted defendant claimed he had not used illegal drugs recently.
In addition, Dr. Johnston thought that defendant might have a possible personality disorder based on his numerous arrests. However, Dr. Johnston noted: “There are no indications . . . of any significant mental illness such as schizophrenia or bipolar disorder nor are there any indications of any substantial cognitive deficits such as one might find in an organically impaired and/or mentally retarded client.” Dr. Johnston concluded, “[A]t this time Mr. Plots is quite clearly competent.”
Discussion
Defendant argues, since the record contains substantial evidence that he was mentally incompetent, including the trial court’s qualms about his mental state, the trial court erred in failing to immediately suspend the proceedings to hold a section 1368 hearing. In the alternative, defendant argues the court should have halted the proceedings to resolve “to its satisfaction doubts” about defendant’s competency before continuing with the trial.
“Both federal due process and state law require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial.” (People v. Rogers (2006) 39 Cal.4th 826, 847 (Rogers). The Supreme Court has noted that the prohibition on the trial of “one who became ‘mad’ after the commission of an offense” can be traced to the common law and “is fundamental to an adversary system of justice.” (Drope v. Missouri (1975) 420 U.S. 162, 171-172 [43 L.Ed.2d 103] (Drope).)
Section 1368 provides, in pertinent part, that “[i]f, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. . . . At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.”
The court’s duty to conduct a competency hearing may arise at any time prior to judgment. (Rogers, supra, 39 Cal.4th at p. 847.) Defense counsel’s opinion is a factor for the court to consider in determining whether substantial evidence of a lack of competence exists. (People v. Panah (2005) 35 Cal.4th 395, 433.) However, if the trial court does not doubt defendant’s competence, section 1368 does not require that the court conduct a hearing based solely on defense counsel’s opinion that defendant is incompetent. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1112.)
A defendant is mentally incompetent if, as a result of mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (§ 1367, subd. (a).) In considering whether a defendant is competent, the trial court may consider the defendant’s demeanor, irrational behavior, and prior mental evaluations. (Rogers, supra, 39 Cal.4th at p. 847.) More is required to raise a doubt of competence than mere bizarre actions or bizarre statements, or psychiatric testimony that the defendant is immature, dangerous, or any other such diagnosis with little reference to the defendant’s ability to assist in his or her own defense. (People v. Danielson (1992) 3 Cal.4th 691, 727.)
We give deference to the trial court’s determination of whether to hold a competency hearing, since the court has the advantage of observing the defendant during trial. We must reverse where substantial evidence of the defendant’s incompetence has been shown and the trial court declines to hold a hearing. (Rogers, supra, 39 Cal.4th at p. 847.)
Our review of defendant’s trial testimony reveals he answered the majority of questions coherently, without any hesitation or confusion. While defendant made several references to being under stress and uncomfortable, it was only when asked about his specific statements to police after his arrest and his conversations with his sister Kathy following the 2004 incident that defendant became markedly confused and evasive.
However, the court took appropriate steps to ascertain whether defendant’s responses and demeanor raised questions concerning his ability to proceed with the trial. After defendant’s testimony concluded, and outside the jury’s presence before discussing proposed jury instructions with counsel, the court ascertained that defendant felt able to continue and was aware of his surroundings and the charges against him. The court then carefully explained the proceedings to follow and defendant stated he was ready to proceed.
Later, after the jury returned and defendant’s outburst led the court to conduct a Marsden hearing, the court again took steps to satisfy itself that defendant understood the nature of the proceedings. Noting this was the first time defendant had interrupted the proceedings, the court suggested defendant might be feigning mental illness. Still, concerned that “something” might be troubling him that would prevent the trial from continuing, the court asked defendant why he was being disruptive and then sought an expedited mental evaluation of him. At no time, however, did the court express a doubt about defendant’s competence. To the contrary, the court’s inquiries confirmed that defendant, though he may have been distressed by his predicament, understood the nature of the proceedings.
After efforts to obtain an expedited evaluation failed, the court stated on the record that no substantial evidence supported a finding that defendant was not competent or created a doubt requiring suspension of the proceedings. The court’s finding in this regard is supported by the record. Defendant’s inability to recall and disruptive outburst were not a sufficient basis for finding a lack of competence. Not until after the close of defendant’s case did his counsel express any concern about his competence. Defendant’s strange and outlandish statements as well as his disruptive behavior were certainly matters to be considered in assessing his competence. And the court considered them. However, such factors cannot dominate the analysis. Otherwise, questions of mental competence could be controlled by the histrionics and theatrical skills of a defendant. Under the circumstances, the trial court did not err in going on with the trial.
As expressed by the court: “But at the present time based on my lengthy inquiry with him this morning, I do not believe there is substantial evidence that objectively generates a doubt such that I should suspend proceedings at this time.”
None of the cases cited by defendant suggest that defendant’s behavior at trial, standing alone, compels a trial court to suspend proceedings pending the outcome of a competency determination. In People v. Pennington (1967) 66 Cal.2d 508 and Drope, supra, 420 U.S. 162, the two cases most heavily relied upon by defendant, the courts considered not only the behavior of the defendants -- behavior that was far more extreme than the conduct of the present defendant -- but compelling expert testimony as well.
Nonetheless, the court agreed to order section 1368 evaluations, apparently on the premise that both sides had rested, the case was complete, and no harm would be done by obtaining a posttrial section 1368 evaluation; the evaluation might persuade the court to reconsider its earlier finding. However, the trial court was not persuaded. Nor are we.
Dr. Johnston found no indications defendant suffered from any significant mental illness. Dr. Thomson testified that defendant’s mental condition likely affected his ability to cooperate with counsel during trial, but acknowledged he could not rule out the possibility defendant was malingering. The evaluations raise questions about defendant’s mental state during the trial. However, they do not negate the trial court’s determination, based on its own observations during trial, that defendant was competent.
Removal of Defendant From Courtroom
Defendant argues that the court improperly excluded him from the courtroom, violating his due process rights. According to defendant, he was not present when the trial court discussed its decision to have him evaluated under Welfare and Institutions Code section 5150. He remained out of the courtroom when the result of the evaluation was reported and defense counsel moved for a mistrial. Finally, defendant contends he was forcibly ejected from the courtroom after politely and apologetically asking to speak with the trial court outside the jury’s presence.
A defendant has a federal and state constitutional right to be present at trial. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202.) We apply an independent standard of review to a trial court’s exclusion of a criminal defendant from trial. (Ibid.) Error pertaining to a defendant’s right to be present during trial is evaluated under the harmless-beyond-a-reasonable-doubt standard. (People v. Davis (2005) 36 Cal.4th 510, 532.)
Here, the record contains no discussion of the reason for defendant’s absence on the afternoon of September 22, 2004, when the court heard the results of the Welfare and Institutions Code section 5150 examination of defendant and defense counsel moved for a mistrial. However, defendant fails to convince us that his absence was prejudicial. Defendant merely asserts that his presence “clearly would have contributed to the fairness of the proceedings.”
Defendant also contends the court erred in removing him from the courtroom following his outburst. According to defendant, the record does not support a finding that his behavior was disruptive enough to justify his removal. We disagree.
Section 1043, subdivision (b) provides, in pertinent part: “The absence of the defendant in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in any of the following cases: [¶] (1) Any case in which the defendant, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with him in the courtroom.”
Here, defendant initially disrupted the reading of the instructions by announcing: “I object. I am done with this. This is a lie. I don’t want this attorney. I am done. I can’t have an attorney. I divulge my information to this lady about everything and I know.” The court attempted to stem the outburst, but defendant persisted, accusing his attorney of dishonesty. The court called a recess to hold a Marsden hearing, cautioning defendant against any further outbursts and warning him he would be removed.
Prior to instructing the jury, the court again warned defendant against interrupting and again stated he would be removed if he conducted himself in a disorderly, disruptive, or disrespectful manner. Defendant appeared to acquiesce but again interrupted the trial court. He asked to speak with the court outside the presence of the jury.
Outside the jury’s presence, defendant announced, “Boy, boy, boy. [¶] . . . [¶] [S]ounds like we got a dilemna [sic] here, don’t we? [¶] . . . [¶] . . . Somebody here is lying.” The court struggled to keep defendant under control but ultimately asked deputies to remove him from the courtroom.
Defendant began accusing counsel of stealing his glasses. He announced, “The system is jacked. [¶] Ow. Fuck. Come on, people.” At this point a scuffle broke out between defendant and several deputies.
Defendant’s disruptive and disorderly conduct prevented the trial from continuing with him in the courtroom. His removal was appropriate under section 1043. Nor is there an indication that any prejudice resulted from his late removal. Defendant was absent only from the instructions and closing argument. The court acted appropriately in removing defendant following his numerous outbursts.
Amendment of the Information
Defendant contends the trial court erred in allowing the People to amend count 2 to conform to proof at trial. The People argue the amendment was proper.
Background
At trial, E. testified that during a 2004 MDI interview, he stated that in May 2004 defendant grabbed E.’s foot and placed it on defendant’s penis. E. clarified his earlier comment about the date and repeatedly testified that the incident took place in 2000. The confusion during the MDI interview arose, E. testified, because he was nervous. In addition, E. testified, the MDI interviewer switched time periods during the questioning, leading to the mistake.
Following the MDI interview, defendant waived his right to a preliminary hearing but agreed that the prosecution could add two additional counts. The court explained that, as part of the waiver, the prosecution would add two more counts: “They are adding another count of 288(a) with the same date and a third count of 288(a) with a date of the year 2000 and 2001.”
At trial, the prosecution moved to amend count 2 by extending the date of the offense to “on or about and between August 1st, 2000 and May 15, 2004.” Over defendant’s objection, the court granted the motion.
The information earlier alleged the second count occurred “[o]n or about may [sic] 15, 2004,” and the third count “[o]n or about and between August 1, 2000 and July 31, 2001.”
The court found the amendment would not prejudice defendant: “The jury will still have to determine whether or not they believe that the district attorney has proved her case. In other words, whether the acts occurred, notwithstanding the dates. Since Mr. Plots has vigorously denied committing any of the acts, the jury will have to determine whether or not those acts have been proved. [¶] So it is not a question of the dates being paramount in my mind after listening to the evidence. Certainly there is no alibi defense where the dates would be so important. [¶] So I will grant the amendment to conform to proof.”
The court also stated that it had reviewed the transcript of defendant’s waiver of the preliminary examination. The record was not entirely clear, but the trial court determined, “although the dates were specified and the charges, 288(a), I don’t see anywhere in this transcript that that necessarily meant that it would stay as indicated in terms of the dates.”
Discussion
Due process requires that the defendant receive notice of the charges against him adequate to provide a meaningful opportunity to defend against them. (People v. Seaton (2001) 26 Cal.4th 598, 640.) Generally, the preliminary hearing transcript provides the accused with the nature of the charges against the defendant, satisfying the due process requirement. (People v. Jones (1990) 51 Cal.3d 294, 317-318.)
Section 1009 allows an amendment at any stage of the proceedings provided the amendment does not prejudice the substantive rights of the defendant and does not charge an offense not shown by the evidence taken at the preliminary hearing. (People v. Winters (1990) 221 Cal.App.3d 997, 1005 (Winters).) The trial court’s exercise of its discretion to grant a motion to amend under section 1009 is broad and will not be disturbed on appeal absent a clear abuse of discretion. (People v. Jones (1985) 164 Cal.App.3d 1173, 1178-1179.)
Defendant objects to the amendment, contending it was improper in light of his waiver of the preliminary hearing. Defendant reasons that because he waived the preliminary hearing the court had no authority to amend count 2 to conform to the proof at trial.
In support, defendant cites Winters, supra, 221 Cal.App.3d 997. In Winters, the trial court erred in allowing the prosecution to amend the information to add an additional count of transportation of methamphetamine. The appellate court determined that since there was no preliminary hearing, the prosecution could not amend the information to add a new charge. (Id. at p. 1007.)
Here, however, the trial court did not allow an amendment to add a new charge against defendant. Instead, the prosecution sought to modify the time frame in which the foot incident took place.
Defendant concedes that some variance between the date charged in the information and the time of the offenses as proved at trial is permissible. However, defendant contends the amendment in the present case, which changed the timing of the foot incident from 2004 to from 2000 to 2004, was impermissible.
We disagree. As the trial court observed, defendant denied the incident ever occurred, making the date of the molestation immaterial. Nor did the amendment change the nature of the charges. E.’s testimony during the MDI interview comported with his testimony at trial: only the date changed, not the molestation. As the prosecution points out, although defendant waived a preliminary hearing, the parties did not agree that the date of the molestation could not be changed to conform with the proof presented at trial.
Instructional Error Unanimity
Defendant argues the trial court erred in failing to give a unanimity instruction on count 2 because the evidence showed more than one alleged act that might serve as the basis for conviction. According to defendant, evidence at trial revealed two different times and places for the incident in which defendant placed the boy’s foot on defendant’s penis. E. testified the incident took place when he was nine years old in an apartment in Woodland. However, in an interview E. stated it took place in May 2004 in the trailer in Davis. Therefore, the trial court was required to instruct the jury that it must unanimously agree which of the incidents actually happened.
CALJIC NO. 17.01 provides: “The defendant is accused of having committed the crime of _________ [in Count _________]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] . . . upon which a conviction . . . may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] . . . committed any one or more of the [acts]. . . . However, in order to return a verdict of guilty . . ., all jurors must agree that [he] . . . committed the same [act] [or] . . . [acts] . . . . It is not necessary that the particular [act] . . . agreed upon be stated in your verdict.”
The trial court must give the unanimity instruction whenever “there is evidence based on which reasonable jurors could disagree as to which act the defendant committed. . . . [¶] . . . [¶] . . . In order for the unanimity instruction to be significant, there must be evidence from which reasonable jurors could both accept and reject the occurrence of at least the same number of acts as there are charged crimes.” (People v. Schultz (1987) 192 Cal.App.3d 535, 539-540.)
Defendant seizes upon E.’s testimony during a June 2004 MDI interview in which he stated that in May 2004 defendant grabbed E.’s foot and placed it on defendant’s penis. This brief testimony forms the basis for defendant’s claim that reasonable jurors could disagree as to which act defendant committed.
However, during his trial testimony, E. repeatedly and consistently stated the incident took place in 2000 when he was nine years old. In addition, E. provided an explanation for his misstatement during the MDI interview. E. stated he was nervous and confused by the questioning.
We are not persuaded by defendant’s attempt to construe the evidence as setting forth two distinct plausible incidents involving E.’s foot. E. mistakenly described the incident as taking place in 2004 during an interview in which he was nervous and confused. At trial, E. unequivocally testified the incident took place in 2000 and repudiated his earlier statements to the interviewer.
Reasonable jurors could not disagree as to which criminal act defendant committed since there was only one act involving E.’s foot. Therefore, the trial court did not err in failing to give a unanimity instruction.
Lesser Included Offense
Defendant contends the trial court had a sua sponte duty to instruct the jury as to count 1 on the lesser included offense of attempted lewd and lascivious acts on a child. Count 1 was based on defendant’s pulling down E.’s shorts in May 2004.
The trial court must instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. This instructional duty includes lesser included offenses when there is substantial evidence raising a question as to whether all the elements of a charged offense are present. We independently review a trial court’s failure to instruct on a lesser included offense. (People v. Cook (2006) 39 Cal.4th 566, 596; Rogers, supra, 39 Cal.4th at p. 866.)
Lewd conduct with a child requires an act upon the body of a child under the age of 14, with the specific intent to arouse, appeal to, or gratify the lust, passions, or sexual desire of either the perpetrator or the child. Such intent can be proven by circumstantial evidence, including the nature of the act itself. (§ 288; People v. Martinez (1995) 11 Cal.4th 434, 444-445.)
Defendant argues, as to count 1, that the touching at issue, pulling down E.’s shorts but not his underwear, was not unambiguously accompanied by the requisite intent to give or receive immediate sexual gratification. According to defendant, this was not the sort of inherently sexual act that would invariably lead one to conclude that it was immediately intended to achieve or give sexual gratification. The ambiguity of the evidence required an instruction on the lesser included offense.
Defendant labels his action in pulling down E.’s shorts “a direct but ineffectual act toward the commission of a touching.” In support, defendant relies on People v. Mickle (1991) 54 Cal.3d 140 (Mickle). However, in Mickle, the Supreme Court reaffirmed that the actual or constructive disrobing of a child by the accused, committed for a sexual purpose, is prohibited by section 288, subdivision (a). (Mickle, at p. 176.)
Here, E. testified that he and defendant were alone in bed together. Defendant touched E.’s leg between his knee and thigh; E. slapped defendant’s hand away. E. fell asleep and awoke to find defendant had pulled E.’s pants down to his knees, although his underwear was still on. E. also described defendant’s pants as “like off.”
As the People point out, in order to pull down E.’s pants, defendant had to touch him. Though defendant argues that pulling down the pants was not an inherently sexual act intended to achieve or give sexual gratification, we disagree. Given the facts surrounding the act, the prior attempt at touching that E. rebuffed, and the seclusion of the victim and defendant in the bedroom, defendant’s efforts to remove E.’s pants constituted a violation of section 288, subdivision (a), not an attempt.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., ROBIE, J.