Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge., Super.Ct.No. RIF 119645.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzales, and Lilia E. Garcia, Supervising Deputy Attorney General, for Plaintiff and Respondent.
Gaut, J.
This case involves a tragic incident in which defendant Fidel Angel Quintanilla accidentally shot and killed a good friend while hunting quail on Jackrabbit Trail, off of Highway 60, in Riverside County.
Defendant appeals judgment entered after the jury found him guilty of negligent discharge of a firearm (count 2; Pen. Code, § 246.3) and felon in possession of a firearm (count 3; § 12021, subd. (e)). The jury also found true the allegations that defendant personally used a firearm in committing count 2 (§ 12022.5, subd. (a)). The jury was unable to reach a verdict on count 1, involuntary manslaughter (§ 192, subd. (b)). Defendant admitted two juvenile strike adjudications for negligent discharge of a firearm (§ 246.3) and battery with serious bodily injury (§ 243, subd. (d)). (§§ 667, subds. (c) & (e)(1) and 1170.12, subd. (c)(1).
Unless otherwise noted, all statutory references are to the Penal Code.
Section 12021, subdivision (e) is referred to in this opinion as “section 12021(e).”
The trial court sentenced defendant to a total prison term of 5 years 4 months; consisting of a two-year middle term, doubled to four years, for count 2, and a consecutive term of one year four months (one-third the middle term) on count 3.
Defendant contends the trial court erred in allowing the prosecution to amend the information to add counts 2 and 3, and in giving misleading instructions on the burden of proof applied to the section 12021(e) offense. Defendant also contends the trial court erred in using defendant’s prior juvenile adjudications as a strike for purposes of sentencing defendant on count 2.
We reject defendant’s contentions, with the exception the trial court committed sentencing error in using defendant’s prior juvenile adjudications as a strike. The trial court is accordingly instructed to reduce defendant’s sentence on count 2 to the two-year base term. In all other respects, the judgment is affirmed.
1. Facts
During the morning of August 21, 2004, defendant and his companions, Peter Lim, Jimmy Lim, and Frank Belarde, the victim, went quail hunting on Jackrabbit Trail. Defendant and Peter had .22-caliber rifles. Jimmy and Belarde had 12-gauge shotguns.
Peter Lim and Jimmy Lim are not related. To avoid confusion, we refer to these two men by their first names.
While the four were on the trail, they chased after a covey of quail that flew into a large bush. The bush was thick and taller than a person. The men could not see through the bush. Defendant and Jimmy went to one side of the bush, Belarde went around the bush to the other side. Peter remained behind, with a profile view of Belarde, who was crouching and aiming his gun toward the bush.
Attempting to shoot the quail, defendant fired his rifle into the bush. Peter heard a couple gunshots and saw Belarde put his hand to his face and then fall to the ground. Peter yelled that Belarde had been shot and ran to him.
Defendant stayed with Belarde while Jimmy and Peter ran to get help. They encountered Robert Hottinga at the trail head. He drove them in his truck back to defendant and Belarde, who was lying in a pool of blood under his head. He was breathing but unconscious.
Because it was unlikely an ambulance would be able to find them or negotiate the dirt trails, Hottinga drove Belarde and defendant to the hospital. Belarde died of a gunshot wound to his neck, which perforated his carotid artery.
Defendant told sheriff’s investigator Gary LeClair, during an interview at the hospital, that he had hunted with Belarde about five times a year for the past three years, usually in the Jackrabbit Canyon area. Defendant did not have any hunting or firearms training, did not have a hunting license, and had never taken a hunter safety class. He admitted he was unfamiliar with hunting laws or regulations. He believed it was not legal to shoot where he and his companions were hunting.
Defendant told LeClair that, when Belarde was shot, defendant was firing into the bush, trying to shoot quail. Defendant was unaware of where his companions were located at the time.
The bullet that killed Belarde was from a .22-caliber rifle. Defendant and Peter were the only ones with .22-caliber rifles. The casings found at the scene were from defendant’s rifle.
At trial, defendant testified that in 1989, when he was 14 years old, he accidentally shot a friend. He and some friends were playing with a gun. Believing the gun was not loaded, he pointed the gun at Luis C. and pulled the trigger. The gun fired, causing Luis C. to suffer a gun wound to the back of his neck, paralyzing him. Defendant was sent to the California Youth Authority. He also fired a gun into the air at a New Year’s Eve party in 2002, and conceded this was dangerous.
As to the charged offenses, defendant testified that he and Belarde were very close friends. He denied any intent to shoot Belarde. They had gone hunting together several times. Although defendant did not have a hunting license, he believed he did not need one. Defendant testified that he fired twice into bush where the quail were. At the time, he did not know where his companions were and acknowledged shooting under such circumstances was dangerous.
2. Amendments to the Information
Defendant contends the trial court abused its discretion in allowing the prosecution to amend the information to add new charges for negligent discharge of a firearm (§ 246.3; count 2) and felon in possession of a firearm (§ 12021(e); count 3).
The day before the first day of trial, the prosecution requested a section 995a, subdivision (b) hearing for purposes of amending the information to add the two inadvertently omitted charges. The trial court agreed that amending the information under section 995a was appropriate, since the amendments concerned defects minor and technical in nature.
As a consequence, the court conducted a section 995a hearing, during which the court permitted the prosecution to prove up the section 12021(e) offense. The prosecution submitted a certified copy of defendant’s youth authority record to prove defendant had committed a prior felony offense, which is an element of the section 12021(e) offense.
As to the section 246.3 offense, the trial court concluded sufficient evidence had already been provided at the initial preliminary hearing to support the charge. The trial court then ordered the amended complaint filed and arraigned defendant on the new charges.
A. Transactional Relationship
Defendant argues the trial court erred in allowing the prosecution to add the sections 243.6 and 12021(e) charges because there was no transactional relationship between the new charges and the preexisting involuntary manslaughter charge. We disagree.
Section 1009 provides: “The court in which an action is pending may order or permit an amendment of an . . . information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, or if the defect in an . . . information be one that cannot be remedied by amendment, may order . . . a new information to be filed. The defendant shall be required to plead to such amendment or amended pleading forthwith, . . . unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. 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. A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added which might properly have been joined in the original complaint.” (Italics added.)
Under section 1009, in order to add a new charge to the information, there must be a “transactional relationship between the new and pre-existing charges. “‘[T]he presently prevailing test laid down by the Supreme Court to determine validity of additional charges in the information is whether there is some “transactional” relationship which relates or connects the added charges and the crimes listed in the commitment order. [Citations.]’” (People v. Saldana (1965) 233 Cal.App.2d 24, 29.)
Here, the section 12021(e) charge of a felon in possession of a gun and the section 246.3 charge for negligent discharge of a gun are sufficiently related to the preexisting involuntary manslaughter charge. The original offense of involuntary manslaughter and the two new offenses involved defendant’s possession and willful discharge of a gun, which defendant used to inadvertently kill Belarde.
B. Sufficiency of Evidence at Preliminary hearing
Defendant argues that the trial court erred in allowing the prosecution to add the sections 246.3 and 12021(e) charges to the information because the new offenses were not shown by evidence taken at the preliminary hearing.
Under section 1009, an information cannot be amended to charge an offense not shown by the preliminary hearing evidence: “[I]t is well settled that Penal Code section 1009 authorizes amendment of an information at any state [sic] of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination.” (People v. George (1980) 109 Cal.App.3d 814, 818, italics added; see also People v. Bolden (1996) 44 Cal.App.4th 707, 716; People v. Birks (1998) 19 Cal.4th 108, 129.)
a. Felon in Possession of a Gun
It is undisputed the prosecution did not prove up at the initial preliminary hearing the section 12021(e) offense (felon in possession of a gun).
The elements of a violation of section 12021(e) are conviction of an offense specified in subdivision (e) of section 12021; ownership, possession, custody or control of a firearm; and knowledge. (§ 12021(e).) Section 12021(e) provides that any person who (1) has a juvenile adjudication for committing certain specified felonies “shall not own, or have in his or her possession or under his or her custody or control, any firearm until the age of 30 years.” (§ 12021(e).)
During the preliminary hearing, the prosecution did not provide any evidence that defendant had committed any of the qualifying offenses listed in section 12021(e). Since a juvenile adjudication of an offense enumerated in section 12021(e) was an element of the section 12021(e) offense, and no evidence was provided establishing the element, under section 1009, defendant could not amend the information to add the section 12021(e) charge.
Before defendant could prosecute the section 12021(e) charge in the instant case, the information had to be set aside; the prosecution had to file a new complaint adding the new charge; and the prosecution was required to prove up the new charge before a committing magistrate. The prosecution could then file a new information alleging the section 12021(e) charge.
Relying on People v. Valladoli (1996) 13 Cal.4th 590 (Valladoli), the People argue these procedures were not required because the prosecution could amend the information under section 969a. The People’s reliance on Valladoli is misplaced. In Valladoli, supra, at page 594, the court held that under section 969a the prosecution could amend the information post-verdict to add prior felony conviction enhancement allegations.
Section 969a provides: “Whenever it shall be discovered that a pending . . . information does not charge all prior felonies of which the defendant has been convicted either in this State or elsewhere, said . . . information may be forthwith amended to charge such prior conviction or convictions, and if such amendment is made it shall be made upon order of the court, . . . Defendant shall promptly be rearraigned on such information . . . as amended and be required to plead thereto.” (Italics added.)
The instant case does not concern adding prior felony conviction enhancement allegations, and thus does not fall within the purview of section 969a. This case concerns adding two new criminal charges the day before the trial began. In a similar case, Levy v. Superior Court (1973) 31 Cal.App.3d 427, 429 (Levy), the prosecution attempted to amend the information to add a section 12021(e) charge. There had been no evidence presented at the preliminary hearing establishing that the defendant had committed any prior felony offenses. Over the defendant’s objection, the trial court permitted the prosecution to add the section 12021(e) charge.
The Levy court held that the trial court erred in permitting the prosecution to add to the section 12021(e) charge. (Levy, supra, 31 Cal.App.3d atp. 429.) The court explained that, although under section 969a the court may add prior conviction enhancements to increase punishment, “It is just as emphatically true, however, that section 739 of the Penal Code authorizes the district attorney to include in the information only ‘offenses shown by the evidence taken before the magistrate to have been committed.’ When a prior conviction is an element of an offense sought to be charged in the information and there is no evidence of such a conviction before the magistrate, there simply is no statutory authority for including the charge in the information.” (Levy, supra, 31 Cal.App.3d at p. 429.)
The court in Levy concluded that the trial court erred in allowing the prosecution to amend the information to add a section 12021(e) charge since the prosecution had not provided any evidence at the preliminary hearing that the defendant had committed a prior felony offense, which was an element of the section 12021(e) offense.
During the section 995a hearing on amending the information in the instant case, the trial court acknowledged that the prosecution had not proved up at the preliminary hearing the requisite prior juvenile adjudication needed for the section 12021(e) charge. The court nevertheless permitted the prosecution to amend by allowing the prosecution to prove up the section 12021(e) offense under section 995a, subdivision (b), upon finding that the prosecution’s failure to allege and prove up the section 12021(e) charge was a minor technical defect.
Section 995a, subdivision (b), allows the court to hold further proceedings to “correct errors alleged by the defendant if the court finds that such errors are minor errors of omission, ambiguity, or technical defect which can be expeditiously cured or corrected without a rehearing of a substantial portion of the evidence. The court may remand the cause to the committing magistrate for further proceedings, or if the parties and the court agree, the court may itself sit as a magistrate and conduct further proceedings. When remanding the cause to the committing magistrate, the court shall state in its remand order which minor errors it finds could be expeditiously cured or corrected.” (Italics added.)
The term “minor error” under section 995a refers to “one that is comparatively unimportant. Thus, an evidentiary defect will trigger the remand provisions of section 995a, subdivision (b)(1), whenever the omission is minor when considered in relation to the balance of the evidence required in order to hold the accused to answer.” (Caple v. Superior Court (1987) 195 Cal.App.3d 594, 602.)
Here, the error was not “comparatively unimportant.” The error was not an insignificant evidentiary defect. Rather, the prosecution omitted a charge, which was not proven up at the preliminary hearing. The trial court thus erred in allowing the prosecution to add the section 12021(e) charge under section 995a, subdivision (b). There was no evidence presented at the preliminary hearing that defendant had been previously committed a felony offense and therefore under section 1009 it was improper to amend the information to add the section 12021(e) charge. Furthermore, the trial court erred in conducting a section 995a hearing and allowing the prosecution to prove up the new section 12021(e) charge since the amendment did not involve correcting minor errors of omission, ambiguity, or technical defect. There also was no agreement by the defendant, as is required under section 995a, that the court sit as a magistrate and conduct a preliminary hearing on the proposed new section 12021(e) charge.
b. Negligent Discharge of a Firearm
Unlike the section 12021(e) charge, sufficient evidence was presented at the preliminary hearing to support the new section 246.3 charge for grossly negligent discharge of a gun. The charge was founded on essentially the same facts and evidence relied provided at the preliminary hearing to prove up the involuntary manslaughter charge.
Section 246.3 states that a section 246.3 offense violation occurs when, “[e]xcept as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person.” (§ 246.3.)
Since the facts and evidence provided at the preliminary hearing were sufficient to support the section 246.3, the trial court did not err in allowing the prosecution to amend the information to add the section 246.3 charge under section 1009.
c. Prejudicial Error
Even though the trial court erred in allowing the prosecution to amend the information to add the section 12021(e) charge under section 995a, the error was harmless since the prosecution proved up the charge at the 995a hearing, as well as at trial. (People v. Moreno (1984) 158 Cal.App.3d 109, 113.) The substantial rights of the defendant, including his due process rights and right to a fair trial, were not prejudiced in any way by the amendment.
In defendant’s appellant’s opening brief, defendant does not argue he was prejudiced by the amendments to the information. However, in his appellant’s reply brief, relying on Levy, he argues he was prejudiced by the prosecution failing to prove up the section 12021(e) charge at the preliminary hearing. But the prosecution proved up the charge and, right afterwards, defendant agreed to waive formal arraignment and the trial court arraigned defendant on both new charges.
In general, irregularities in pretrial commitment proceedings require reversal on appeal only where the defendant shows he was “deprived of a fair trial or otherwise suffered prejudice” as a result. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.) Defendant makes no showing that he was denied a fair trial or otherwise suffered prejudice.
Although the court in Levy, supra, 31 Cal.App.3d at page 430 , held the defendant was prejudiced by the prosecution adding a section 12021(e) charge to the information without having proved up the offense at the preliminary hearing, the instant case is distinguishable. In the instant case, the trial court required the prosecution to prove up the section 12021(e) charge at the section 995a hearing before allowing the amendment.
While the manner in which the prove up occurred was improper, defendant did not object to the procedure and was not deprived of the opportunity to contest the supporting evidence or establish an affirmative defense. Defendant also did not request a continuance of the prove up hearing for the purpose of more fully litigating the new charges. We thus conclude the trial court’s erroneous reliance on section 995a to allow the prosecution to amend the information was harmless error.
3. Using Juvenile Adjudication as a Strike
Defendant contends that, under section 667, subdivision (d)(3)(A), (B), and (D), the trial court erred in using defendant’s prior juvenile adjudications as a strike offense and doubling his sentence on count 2. The People agree, as does this court.
In 1989 defendant accidentally shot a friend. As a consequence, he was adjudged a ward of the juvenile court under Welfare and Institutions Code section 707 for negligent discharge of a gun (§ 246.3) and battery with serious bodily injury (§ 243, subd. (d)). Based on these offenses, defendant admitted in the instant case that he had committed a “strike” offense within the meaning of the Three Strike provision, section 667, subdivisions (c) and (e).
At sentencing, the trial court counted defendant’s juvenile adjudications as a strike prior and doubled defendant’s base sentence of two years on count 2 under section 667, subdivisions (c) and (e).
Under subdivision (d)(3)(A) of section 667, a juvenile adjudication can be used as a strike prior only if the adjudication was for an offense committed when the offender was 16 years old. Defendant was only 14 years old when he committed the offenses in 1989. Therefore, the trial court erred in using defendant’s prior juvenile adjudications as a strike and doubling his sentence on count 2.
4. Burden of Proof Jury Instruction
Defendant contends the trial court committed reversible error per se, violation of his due process rights, by misinstructing the jury that it need only find by a preponderance of the evidence the section 12021(e) element that defendant had committed a prior felony offense. Defendant complains that the jury should have been instructed that the “reasonable doubt” standard of proof applied.
We conclude the instructions as a whole sufficiently informed the jury to apply the reasonable doubt standard. Preliminarily, the trial court instructed the jury that, as to circumstantial evidence, “each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt.” (CALJIC No. 2.01.) The court also instructed that defendant was to be presumed innocent until he was proven guilty beyond a reasonable doubt, and the prosecution had the burden of proving defendant guilty beyond a reasonable doubt. (CALJIC No. 2.90.)
The court also instructed the jury on the elements of the section 12021(e) offense as follows: “One, a person previously has been adjudicated of a crime under 707, Subdivision (b) of the Welfare and Institutions Code; [¶] Two, that on the date of the offense the person was not yet 30 years of age; [¶] Three, that person received or had in his possession or had under his custody or control a firearm; [¶] And four, that person knew of the presence of the firearm.” (CALJIC No. 12.43.)
As to the fourth element, the court instructed the jury that “Evidence has been introduced for the purpose of showing that the defendant committed a crime other than that for which he is on trial. That evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show the existence of the intent, which is a necessary element of the crime charged, and/or the defendant had knowledge of the consequences of the negligent act and that the consequences were reasonably foreseeable and/or to negate a claim of accident. [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all the evidence in the case. [¶] You’re not permitted to consider the evidence for any other purpose.” (CALJIC No. 2.50.)
The court then instructed the jury on the preponderance of the evidence standard applied to other crimes: “Within the meaning of the preceding instructions, the prosecution has the burden of proving by a preponderance of the evidence that the defendant committed a crime other than that – other than those for which he is on trial. You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that the defendant committed the other crime. If you find the other crime was committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.” (Italics added.) (CALJIC No. 2.50.1.)
During jury deliberations, the court received a note from the jury that it was deadlocked on count 1 (involuntary manslaughter) but had reached agreement on count 2. The court asked the jury foreperson if there was anything that would assist the jury in deciding the case. The jury foreperson stated that it would be helpful if the court would provide “[a] better understanding as to how to evaluate all the evidence and use the concept of preponderance of the evidence.”
The court responded by explaining to the jury that “The preponderance standard was as to the previous incident, the incident that happened some years ago when the young man was paralyzed. The only time that standard is utilized is with regards to that evidence. That was having to do with, basically, the dangerousness of firearms and so forth, and that’s why that was there. And the only time that standard is applicable in our case is whether or not the D.A. has proven that incident by a preponderance of the evidence. Okay? [¶] As to the current case, the standard is beyond a reasonable doubt. So as to whether or not the current offenses occurred, whether the defendant is guilty of them, the D.A. must prove that beyond a reasonable doubt. You see the difference?” The jury foreperson indicated he understood and that this helped in understanding how to apply the burden of proof.
Defendant argues these instructions were erroneous because they indicated that the jury could convict defendant of violating section 12021(e) based on a preponderance of the evidence, rather than requiring proof beyond a reasonable doubt. We disagree.
The instructions do not provide that the section 12021(e) offense may be proved by a preponderance of the evidence. Instead, they expressly provide that only the prior crimes must be proved by a preponderance of the evidence. (See CALJIC No. 2.50.1.) “In criminal cases, juries are instructed on the presumption of innocence and the need for proof beyond a reasonable doubt. (See CALJIC No. 2.90.) Juries are also presumed to follow the instructions given. [Citations.]” (People v. Van Winkle (1999) 75 Cal.App.4th 133, 148; see also Richardson v. Marsh (1987) 481 U.S. 200, 206-207.) “In order to prevail on a claim that jury instructions are misleading, the claimant must prove a reasonable likelihood that the jury misunderstood the instructions as a whole. [Citation.]” (Van Winkle, supra, at p. 147.) Defendant has not shown this.
By giving CALJIC Nos. 2.01, 2.50, 2.50.1, and 2.90, in conjunction with the trial court’s response to the jury’s request for assistance in understanding the burden of proof, the jury was sufficiently instructed that the preponderance of the evidence standard only applied to establishing that defendant had committed a prior felony offense, and that defendant could be found guilty of the section 12021(e) offense only if the jury was convinced beyond a reasonable doubt that he committed the offense. There is no reason to believe that the jury was unable to follow these instructions.
5. Disposition
The judgment is affirmed, with modification of defendant’s sentence, which is reduced from five years four months to three years four months due to the trial court improperly doubling the two-year base term on count 2 to four years.
The trial court is thus instructed to reduce defendant’s sentence on count 2 from four years in prison to two years. The superior court shall further issue a modified abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: Richli, Acting P. J., King, J.