Opinion
C080722
10-31-2018
THE PEOPLE, Plaintiff and Respondent, v. YOULEE LEE VANG, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM038790)
A jury convicted defendant Youlee Lee Vang of nine counts of child molestation. (Pen. Code, § 288, subd. (a).) (Subsequent section references are to the Penal Code.) Defendant contends the trial court erred when it (1) allowed the prosecution to amend the information on one of the counts to conform to the evidence; and (2) denied his request for a jury instruction defining the phrase "abiding conviction" as that term is used in the instruction on reasonable doubt. We affirm the judgment.
Given the nature of defendant's arguments, we need not present the facts or procedural history to resolve his claims.
DISCUSSION
I
Amendment of Information
Defendant contends the trial court abused its discretion when it granted the prosecution leave to amend the information upon the close of its case. We disagree.
The information alleged defendant committed four lewd acts against one of the victims. Counts 1 and 4 alleged he inserted his "finger in [her] vagina," count 2 alleged "defendant made victim touch his penis outside of his clothing," and count 3 alleged he touched the victim's breast under her shirt. The victim, however, testified that defendant did not touch her breasts. Rather, on the incident in question, he put one hand across her chest onto her right shoulder, and he put his other hand inside her swimsuit and penetrated her vagina.
Upon the close of its case in chief, the prosecution sought to amend the information to conform to the evidence. It asked to amend count 3 by replacing the allegation of touching the victim's breast with the language "finger in vagina."
Defendant objected. He had previously waived a preliminary hearing, and he argued that changing the factual basis for the count constituted charging an offense not shown by the evidence taken at the preliminary hearing in violation of section 1009.
The trial court authorized the amendment. It saw "some danger" in allowing it, but it thought "Garcia does allow conformance to proof . . . ." The parties agree the court's reference to "Garcia" was to People v. Garcia (1966) 240 Cal.App.2d 9.
Defendant contends the trial court abused its discretion in granting the amendment. He argues section 1009 prohibits the prosecution from amending an information if no preliminary hearing was held. He also argues the amendment denied him his constitutional right to notice of the basis for the charges against him.
"Section 1009 prohibits amending an information to charge an offense not shown by evidence taken at the preliminary hearing. That provision reads in pertinent part: '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.' It is well settled that where a defendant waives a preliminary hearing, the prosecution may not amend the information to add new charges. (People v. Peyton (2009) 176 Cal.App.4th 642, 654 (Peyton); People v. Winters (1990) 221 Cal.App.3d 997, 1007 (Winters).) This is so, even if the amendment would not prejudice the defendant or if the defendant had notice of the facts underlying the new charges. (Peyton, at pp. 654, 656.)" (People v. Rogers (2016) 245 Cal.App.4th 1353, 1360 (Rogers).)
However, the trial court may allow the prosecution to amend its pleading to conform to proof, even where the defendant waives a preliminary hearing, if the amendment does not allege a new charge and does not constitute a significant variance from the original charges. (Peyton, supra, 176 Cal.App.4th at pp. 659-660.) In Rogers, this court described Peyton as follows: "The defendant was originally charged with four counts of aggravated sexual assault under section 269—three counts of oral copulation (§ 269, subd. (a)(4)), and one count of sexual penetration (§ 269, subd. (a)(5)). (Peyton, at p. 649.) After the defendant waived the preliminary hearing, the prosecution amended the information, without objection from the defense, to allege three counts of sexual penetration and one count of oral copulation under section 269 instead of three counts of oral copulation and one count of sexual penetration as originally charged. (Peyton, at p. 649.) . . . [T]he Peyton court held that this amendment did not constitute a 'significant variance' from the original charges. (Id. at p. 660.) The information consistently alleged four separate section 269 charges based on either oral copulation or sexual penetration. (Peyton, at p. 659.) The defendant was not charged with a different Penal Code section and . . . this change did not involve adding a whole new charge. (Peyton, at p. 660.) Furthermore, the change did not affect the potential punishment. (Ibid.)" (Rogers, supra, 245 Cal.App.4th at pp. 1363-1364.)
The Rogers court distinguished Peyton and struck an amendment that alleged a conduct enhancement for the first time. It stated: "Unlike the amendments in Peyton, which did not involve a new charge—a circumstance that the Peyton court saw as distinguishing the amendments in that case from the amendments in Winters—the enhancement here involved a new allegation and a different Penal Code provision. Also, in contrast to Peyton, the allegation here exposed defendant to additional punishment not available when he waived his preliminary hearing. Thus, the addition of the conduct enhancement allegation constituted a 'significant variance' from the original charges." (Rogers, supra, 245 Cal.App.4th at p. 1364.)
The amendment at issue before us was not a significant variance from the original charges and, under Peyton, did not violate section 1009 or defendant's due process right to notice. The information alleged in counts 1-4 that defendant committed four lewd and lascivious acts upon the victim in violation of section 288, subdivision (a). In count 1, defendant inserted his finger in the victim's vagina between June 1, 2006 and June 30, 2007. In count 2, defendant made the victim touch his penis outside of his clothing between August 21, 2006 and June 11, 2009. In count 3, defendant touched the victim's breast under her clothing between August 21, 2006 and June 11, 2009. And in count 4, defendant inserted his finger in the victim's vagina between August 21, 2006 and June 11, 2009.
When the prosecution sought to amend count 3, it also sought to amend the time periods during which the crimes charged in counts 2, 3, and 4 were committed. Defendant did not object to these amendments. The time periods listed in the text are the amended time periods. --------
The amendment to count 3 did not significantly vary from the original charges. Although the factual basis for the count changed from defendant touching the victim's breast to inserting his finger in her vagina, the charge remained the same, a violation of section 288, subdivision (a). The amendment merely described the manner in which the law was violated. It sought no new additional punishment.
The amendment also did not violate defendant's due process right to notice. Prior to the amendment, defendant was already on notice he would have to defend against two instances of inserting his finger in the victim's vagina. Having to defend against a third such offense committed during the same time period as one of the other offenses did not deny defendant a reasonable opportunity to prepare and present a defense.
In People v. Pitts (1990) 223 Cal.App.3d 606, relied upon by defendant, the court of appeal explained how an amended pleading could violate defendant's due process. If, as a hypothetical, the evidence at a defendant's preliminary hearing showed the commission of two counts of oral copulation and two counts of lewd touching, but the evidence at trial established two acts of sodomy and two of sexual intercourse, "the preliminary hearing transcript would not afford defendant adequate notice of the specific acts against which he might have to defend. Moreover, in such a situation the opportunity to prepare a meaningful defense would obviously be adversely affected, since the change in alleged acts would affect medical testimony, cross-examination of the alleged victim(s), etc." (Id. at p. 906, italics omitted.)
The same concerns do not arise here. Defendant was already on notice he would have to defend against unlawful penetration against the victim during the same time period, and the addition of a third penetration charge involving the same victim would not likely affect medical testimony or any cross-examination. The trial court did not abuse its discretion by allowing the prosecution to amend count 3.
II
Instruction on "Abiding Conviction"
Defendant contends the trial court erred by not defining the phrase "abiding conviction" as used in CALCRIM No. 220, the instruction on the presumption of innocence and reasonable doubt. Defendant offered a pinpoint instruction defining an abiding conviction as "one that is 'settled and fixed' or 'lasting and permanent,' " but the trial court refused it.
We have previously rejected defendant's argument, and we reject it again here. "Penal Code section 1096, which furnishes the basis for CALCRIM No. 220, states as relevant here: 'Reasonable doubt is defined as follows: "It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." ' And Penal Code section 1096a says: 'In charging a jury, the court may read to the jury Section 1096, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given.'
"The United States Supreme Court and the California Supreme Court, respectively, have described 'an abiding conviction' as one that is 'settled and fixed' (Hopt v. Utah (1887) 120 U.S. 430, 439 ) and one that is 'lasting [and] permanent' (People v. Brigham (1979) 25 Cal.3d 283, 290). These descriptions of 'abiding,' though, are self-evident and an unnecessary elaboration of a readily understood term. The phrase 'abiding conviction' does not require definition." (People v. Pierce (2009) 172 Cal.App.4th 567, 573, fn. omitted.)
The trial court did not err in rejecting defendant's pinpoint instruction.
DISPOSITION
The judgment is affirmed.
HULL, J. We concur: RAYE, P. J. BLEASE, J.