Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA050778, John S. Fisher, Judge.
Edward H. Schulman, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
RELEVANT PROCEDURAL HISTORY
On November 27, 2006, an information was filed charging appellant Michael Terry Ward with multiple offenses under the Penal Code against two female children, K.K. and A.R. Regarding K.K., the information alleged that on May 21, 2001, appellant engaged in kidnapping to commit rape (§ 209, subd. (b)(1), count 1), aggravated sexual assault on a child involving oral copulation (§ 269, subd. (a)(4), count 2), forcible oral copulation (§ 288a, subd. (c)(2)), count 3), and a lewd act upon a child (§ 288, subd. (a), count 4). Regarding A.R., the information alleged that on October 4, 2005, appellant engaged in kidnapping to commit rape (§ 209, subd. (b)(1), count 5), aggravated sexual assault upon a child (§ 269, subd. (a)(1), counts 6 & 7), aggravated sexual assault upon a child involving sodomy (§ 269, subd. (a)(3), counts 8 & 9), aggravated sexual assault upon a child involving oral copulation (§ 269, subd. (a)(4), counts 10 & 11), forcible rape (§ 261, subd. (a)(2)), counts 12 & 13), sodomy by use of force (§ 286, subd. (c)(2), counts 14 & 15), forcible oral copulation (§ 288a, subd. (c)(2), counts 16 & 17), and lewd acts upon a child (§ 288, subd. (a), counts 18 through 20).
All statutory citations are to the Penal Code.
The information asserted special allegations in connection with counts 3, 4, and 12 through 20 under the “One Strike” law (§§ 667.61, subds. (a), (b), (d), (e)) and other statutes (§ 667.8, subd. (a)). In addition, the information alleged that appellant had two prior convictions for the purposes of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior conviction for a serious felony (§ 667, subd. (a)(1)). Appellant pleaded not guilty to all the counts and denied the special allegations.
On the eve of trial, the trial court dismissed counts 3, 4, and 12 through 20 at the prosecutor’s request (§ 1385). On November 7, 2007, a jury found appellant guilty as charged, and found true allegations under the One Strike law (§ 667.61, subds. (a), (d)) in connection with counts 2 and 6 through 11. The trial court determined that the prior conviction allegations were true, and sentenced appellant to a total term of 265 years to life.
FACTUAL BACKGROUND
A. Prosecution Evidence
K.K., who was born in 1995, testified that just before 8:00 p.m. on May 21, 2001, she went for a ride on her bicycle. A man stopped her, picked her up off her bicycle, and carried her to a green truck, where he put a hat over her head that prevented her from seeing. He drove for ten minutes, stopped the truck and carried her into an apartment or house. There, he put his tongue on her private parts. Although the man removed her hat, she could not recall looking at him. After several minutes, he washed her with a wet cloth, drove her to an unfamiliar spot in his truck, and pushed her out of it.
L.K., K.K.’s mother, testified that after K.K. disappeared on May 21, 2001, police officers told her that K.K. had been found and taken to a hospital.
Los Angeles Police Department (LAPD) Detective Michelle Robinson testified that K.K. lacked underwear when she was found. K.K. told Robinson that her kidnapper called himself “George” and placed tape on her mouth; K.K. also said that she smelled cigarettes in the residence where she was sexually assaulted. Although fingerprints were found on K.K.’s bicycle helmet, they did not lead to a suspect.
A.R., who was born in 1998, testified that in October 2005, she was playing hide-and-seek near her home when a man beckoned to her and then grabbed her. He carried her to a black truck, put her in the back seat, tied a blanket over her head, and drove for several minutes. When he stopped, he placed his penis in her vagina and anus, and also put his tongue in her anus. The man then drove her to a residence where he repeated this abuse, and then cleaned her in a shower. While in the bathroom she noticed an unusual U-shaped orange light bulb. She also saw a black, horseshoe-shaped decoration on the wall of the residence. At some point, the man called himself, “George.” When the man dressed her, he said he had lost her underwear. The man placed boxer shorts over her head, drove her to a liquor store and left her there.
LAPD Detective Supervisor Jesse Alvarado testified that after the LAPD crime lab determined that appellant was a potential contributor of DNA recovered from A.R., Alvarado conducted a search of appellant’s residence. Officers found an unusual wall decoration, an orange night light in the bathroom, and other items matching A.R.’s description of her kidnapper’s residence, as well as four pairs of underwear for young girls. The residence also contained an ashtray full of burned cigarettes.
Jennifer Butterworth, a criminalist employed in the LAPD crime lab, testified that the DNA profile in sperm obtained from A.R.’s vagina and rectal area matched appellant’s profile.
B. Defense Evidence
The parties stipulated that Mark Taylor, a DNA expert, would have testified that appellant had been excluded as the source of DNA recovered from samples obtained from K.K.
DISCUSSION
Appellant contends there was sentencing error. Under count 2, the trial court imposed a term of 45 years to life pursuant to the Three Strikes law, plus 25 years to life under the One Strike law (§ 667.61, subds. (a), (d)); under count 6, it imposed a similar consecutive sentence; and under each of counts 7 through 11, it imposed a consecutive sentence of 25 years to life pursuant to the Three Strikes law. Appellant contends the trial court erred in (1) sentencing him under the One Strike law and (2) imposing consecutive sentences on counts 2 and 7 through 11.
On Counts 1 and 5, the trial court imposed and stayed a term of life imprisonment (§ 654).
1. One Strike Sentencing
Appellant contends the trial court improperly imposed additional terms on counts 2 and 6 under the One Strike law because the counts, as asserted in the information, lack the requisite allegations. For the reasons explained below, we disagree.
a. One Strike Law
“Approximately six months after the Legislature enacted the ‘Three Strikes’ law as urgency legislation, it adopted section 667.61, the One Strike law. [Citations.] This section sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes perpetrated by force, including rape, foreign object penetration, sodomy, and oral copulation.” (People v. Mancebo (2002) 27 Cal.4th 735, 741 (Mancebo).) Section 667.61 authorizes the imposition of a 25 years to life sentence upon such crimes involving specified circumstances, including the following: “The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense . . . .” (§ 667.61, subds. (a), (d)(2)). Subdivision (f) of section 667.61 provides that this sentence may be imposed only when the pertinent special circumstance has been “pled and proved”; in addition, subdivision (j) of section 667.61 states that the sentence may be imposed only if the circumstance “is alleged in the accusatory pleading . . ., and is either admitted by the defendant in open court or found true by the trier of fact.”
b. Underlying Proceedings
At the preliminary hearing on November 13, 2006, the prosecutor contended there was sufficient evidence to support the 20 counts later charged in the information. He presented K.K. and A.R. as witnesses, each of whom testified she was kidnapped, transported by truck, and sexually abused. Defense counsel challenged the counts regarding A.R., arguing that “it appear[ed] as if the People had filed the same count in multiple ways.” The trial court rejected the contention and required appellant to answer all 20 counts.
Although the complaint before the trial court at the preliminary hearing is not in the record, the trial court described its contents in detail during the hearing.
The information, as filed, alleged offenses regarding K.K. in counts 1 through 4, and offenses regarding A.R in counts 5 through 20. It asserted in counts 1 and 5 that appellant had engaged in kidnapping to commit rape (§ 209, subd. (b)(1)), and in counts 2 and 6 through 11 that appellant had engaged in aggravated sexual assault (§ 269, subds. (a)(1), (a)(3), (a)(4)). The remaining counts (counts 3, 4, and 12 through 20), which charged offenses under sections 261 (sodomy by use of force), 288 (lewd acts upon a child), and 288a (forcible oral copulation), contained a kidnapping allegation under section 667.61, subdivision (d)(2), of the One Strike law, namely, that appellant had “kidnapped [the] victim of [the] . . . offense and the movement of the victim[] substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense.”
On October 30, 2007, the first day of trial, the trial court inquired about “the current status of the information.” The prosecutor responded: “I was going to pare it down and just charge aggravated sexual assault and take out the 288(a)’s and 288(b)’s. . . . And the reason is based upon defense counsel’s argument at the preliminary hearing.”
The next day, following the selection of the jury, the prosecutor asked the trial court to dismiss several counts. Regarding the counts involving K.K. (counts 1 through 4), the prosecutor sought to proceed only with respect to counts 1 (kidnapping to commit rape) and 2 (aggravated sexual assault), explaining that counts 3 and 4 “[were] just filed in the alternative.” Similarly, regarding the counts involving A.R. (counts 5 through 20), the prosecutor sought to proceed only with count 5 (kidnapping to commit rape) and counts 6 through 11 (aggravated sexual assault). The trial court dismissed the other counts.
After the close of the presentation of evidence, the parties discussed jury instructions and the verdict forms regarding counts 1, 2 and 5 through 11. In addressing CALCRIM No. 3175, which provides guidance to juries regarding the kidnapping allegation in subdivision (d)(2) of section 667.61, the trial court remarked that the instruction “relate[d] to an additional enhancement allegation.” The prosecutor stated that he and defense counsel agreed that certain optional elements of CALCRIM No. 3175 concerning the victim’s consent were inapplicable to the case. When the trial court asked whether there was an objection to striking the elements, defense counsel answered in the negative. At the end of the discussion, the trial court inquired whether defense counsel had any “comments, requests, objections, suggestions,” or “[a]nything else.” Defense counsel responded, “No. Thank you.”
The trial court instructed the jury with a modified version of CALCRIM No. 3175, which stated in pertinent part: “If you find the defendant guilty of the crimes charged in counts 2, 6, 7, 8, 9, 10, 11, [y]ou must decide whether, for each crime, the People proved the additional allegation that the defendant kidnapped [K.K.] & [A.R.], increasing the risk of harm to [her].” The jury also received verdict forms directing it to determine the truth of the kidnapping allegation in connection with counts 2 and 6 through 11. The jury found appellant guilty on all counts, and found true the kidnapping allegations.
c. Analysis
Appellant contends that the trial court, in dismissing counts 3, 4, and 12 through 20 at the prosecutor’s request, eliminated the counts containing the “One Strike” allegations, and that the information was never amended to plead such allegations in connection with counts 2 and 6. We conclude this contention fails in light of the so-called “informal amendment doctrine,” which constitutes a judicial recognition that an information may be amended without written alterations to it. (People v. Sandoval (2006) 140 Cal.App.4th 111, 133 (Sandoval).)
Generally, the purpose of an accusatory pleading is “‘to provide the accused with reasonable notice of the charges.’” (Sandoval, supra, 140 Cal.App.4th at p. 132, quoting People v. Ruiloba (2005) 131 Cal.App.4th 674, 689-690.) Nonetheless, the Penal Code permits accusatory pleadings to be amended at any stage of the proceedings “for any defect or insufficiency” (§ 1009), and bars reversal of a criminal judgment “by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits” (§ 960). In view of these provisions, “[t]he proceedings in the trial court may constitute an informal amendment of the accusatory pleading, when the defendant’s conduct or circumstances created by him amount to an implied consent to the amendment.” (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 213, p. 418.)
As the court explained in Sandoval, “[t]he informal amendment doctrine makes it clear that California law does not attach any talismanic significance to the existence of a written information. Under this doctrine, a defendant’s conduct may effect an informal amendment of an information without the People having formally filed a written amendment to the information.” (Sandoval, supra, 140 Cal.App.4th at p. 133.)
An instructive application of the doctrine is found in People v. Toro (1989) 47 Cal.3d 966, 973 (Toro), disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 568. There, the information charged the defendant with attempted murder and assault with a deadly weapon. (Toro, supra, at p. 972.) In addition to these offenses, the jury was instructed regarding the offense of battery with serious bodily injury, which the instructions and verdict forms erroneously described as a lesser included offense of attempted murder. (Ibid.) The defendant’s counsel raised no objection to the instructions and verdict form regarding battery with serious bodily injury, or to the jury’s consideration of the offense. (Id. at p. 977.) Noting that such failure to object may be “‘“regarded as an implied consent to treat the information as having been amended to include the offense on which the sentence was imposed,”’” our Supreme Court concluded that the defendant had impliedly consented to the submission of the charge to the jury, and had forfeited any contention of error. (Id. at pp. 976-977, quoting People v. Francis (1969) 71 Cal.2d 66, 75.)
In our view, the parties, by their conduct, amended the information to attach kidnapping allegations under the One Strike law to counts 2 and 6 through 11. When the parties discussed a jury instruction based on CALCRIM No. 3175 and verdict forms regarding the counts in question, appellant’s counsel never challenged the instruction or forms, despite the trial court’s request for his objections. Appellant never raised any objection to the imposition of a sentence under the One Strike law prior to his appeal.
Nor do we see any impropriety in the amendments. Absent circumstances not present here, the prosecutor is accorded “the same broad powers to amend an information as he or she had to frame it in the beginning, namely, to charge any offense shown by the evidence [at the preliminary hearing].” (4 Witkin & Epstein, supra, § 217, at p. 422.) The information may be amended after the conclusion of the trial, prior to submission of the case to the jury. (People v. Witt (1975) 53 Cal.App.3d 154, 164-166, disapproved on another ground in People v. Posey (2004) 32 Cal.4th 193, 205, fn. 5, 215; People v. Walker (1947) 82 Cal.App.2d 196, 197-199.)
Here, the evidence at the preliminary hearing, which closely resembled the evidence at trial, supported the amendments. The elements of the kidnapping allegation under subdivision (d)(2) of section 667.61 are “(1) a simple kidnapping . . .; and (2) a substantial increase in the risk of harm to the victim.” (People v. Diaz (2000) 78 Cal.App.4th 243, 245-248.) Regarding element (1), the evidence at the preliminary hearing established that appellant kidnapped K.K. and A.R.; regarding element (2), the evidence at the preliminary hearing established that appellant enhanced the risks to his victims by confining them in a truck and conveying them to his residence (see People v. Rayford (1994) 9 Cal.4th 1, 13, disapproved on another ground in People v. Acosta (2002) 29 Cal.4th 105, 120, fn. 7 [determination that defendant increases risk to kidnapping victim relies on factors such as “the decreased likelihood of detection . . . and the attacker’s enhanced opportunity to commit additional crimes”]).
Moreover, in seeking to dismiss counts 3, 4, and 12 through 20 at the beginning of trial, the prosecutor indicated -- correctly, in our view -- that they were largely duplicative of the misconduct charged in the remaining counts. The dismissed counts asserted violations of sections 261 (sodomy by use of force), 288 (lewd acts upon a child), and 288a (forcible oral copulation), accompanied by kidnapping allegations. The remaining counts charged appellant with kidnapping his victims and violating section 269, which provides that adults who perpetrate the offenses alleged in the dismissed counts upon children are guilty of aggravated sexual assault (§ 269, subds. (a)(1), (a)(3), (a)(4)). In sum, nothing before us suggests a meritorious basis for denying leave to amend the information to attach the allegations to count 2 and counts 6 through 11, had the prosecutor expressly made such a request.
Appellant’s reliance on Mancebo, supra, 27 Cal.4th 735 is misplaced, as it is distinguishable. There, the information charged the defendant with 10 offenses arising from sexual assaults on two victims. (Id. at p. 750.) In connection with five counts, the information contained allegations under section 667.61, subdivisions (a) and (e), of the One Strike law, which jointly permit the trial court to impose a 25 years to life sentence for an offense, provided that two aggravating factors specified in subdivision (e) are pleaded and proven. (Mancebo, supra, 27 Cal.4th at pp. 740-743.) Each of the five counts asserted two allegations under subdivision (e): a gun use allegation and a kidnapping allegation. (Mancebo, at p. 740.) The jury found the defendant guilty as charged and found the special allegations to be true. (Ibid.) In sentencing the defendant, the trial court imposed gun use enhancements under a different statute, and also imposed sentences under the One Strike law, relying on the kidnapping allegation and the fact that there had been multiple victims. (Mancebo, supra, 27 Cal.4th at p. 740.)
Our Supreme Court concluded that this was error, as the information contained no “multiple victim” allegation under section 667.61, subdivision (e), and had never been amended to assert such an allegation. (Mancebo, supra, 27 Cal.4th at pp. 740, 743.) The court stated: “Neither the original nor the amended information ever alleged a multiple victim circumstance under subdivision (e)(5). Substitution of that unpleaded circumstance for the first time at sentencing as a basis for imposing the indeterminate terms violated the explicit pleading provisions of the One Strike law.” (Mancebo, supra, 27 Cal.4th at p. 743.) It elaborated: “[T]he express pleading requirements of section 667.61 . . . require that an information afford a One Strike defendant fair notice of the qualifying statutory circumstance or circumstances that are being pled, proved, and invoked in support of One Strike sentencing. Adequate notice can be conveyed by a reference to the description of the qualifying circumstance (e.g., kidnapping, tying or binding, gun use) in conjunction with a reference to section 667.61 . . ., or by reference to its specific numerical designation . . ., or some combination thereof. We do not purport to choose among them. (Mancebo, supra, 27 Cal.4th at pp. 753-754.)
Here, unlike Mancebo, the information was amended -- albeit informally -- to contain kidnapping allegations under section 667.61, subdivision (d). As Mancebo does not address whether an information, so amended, provides the “fair notice of the qualifying statutory circumstance” required under the One Strike law (Mancebo, supra, 27 Cal.4th at p. 754), we must look elsewhere for guidance on this question. In Sandoval, the court confronted a similar question in the context of the section 667, subdivision (e)(1), and section 1170.12, subdivision (c)(1) of the Three Strikes law, which require that the existence of a prior strike must be “pled and proved” (section 667.61). (Sandoval, supra, 140 Cal.App.4th at pp. 132-134.) The court held that when a prior strike allegation is added to the information pursuant to the informal amendment doctrine, any defect in the form of the amendment is harmless, provided that the defendant had reasonable notice of the allegation. (Id. at p. 134.) In view of Sandoval, we see no reversible error, as the record discloses appellant had ample notice of the kidnapping allegations (and their statutory basis) charged in counts 2 and 6 through 11 pursuant to the informal amendments.
Appellant also contends that defense counsel rendered ineffective assistance by failing to object to the instruction under CALCRIM No. 3175 and the verdict forms. We disagree. Defense counsel does not render ineffective assistance by declining to raise meritless objections. (People v. Price (1991) 1 Cal.4th 324, 387.) As we have explained, there would have been no meritorious basis for denying an express request to amend the information to include kidnapping allegations had defense counsel objected to the instruction and forms. In sum, the trial court properly imposed sentences under the One Strike law.
“In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citations.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Jennings (1991) 53 Cal.3d 334, 357.)
B. Consecutive Sentences
Appellant contends the trial court engaged in reversible error in imposing consecutive sentences because it failed (1) to direct the jury to make pertinent findings and (2) to state its reasons for its sentencing choices. We disagree.
Regarding item (1), appellant argues that under Blakely v. Washington (2004) 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466, consecutive sentences are improper in the absence of suitable jury findings. The United States Supreme Court recently rejected this contention in Oregon v. Ice (2009) __ U.S. __, __ [129 S.Ct. 711, 714-716]. In addition, our Supreme Court rejected it in People v. Black (2007) 41 Cal.4th 799.
Regarding item (2), appellant raised no objection to the trial court’s failure to state its reasons for deciding to impose consecutive sentences, and thus has forfeited his contention. (People v. Davis (1995) 10 Cal.4th 463, 551-552.) Moreover, if we were to examine the contention on its merits, we would conclude that any error is harmless, as the probation report identified eight aggravating factors and no mitigating factors. As our Supreme Court remarked in addressing a similar contention on materially identical facts, “[i]t is inconceivable that the trial court would impose a different sentence if we were to remand for resentencing.” (People v. Champion (1995) 9 Cal.4th 879, 934, disapproved on another ground in People v. Combs (2004) 34 Cal.4th 821, 860.)
C. Abstract of Judgment
We note that the abstract of judgment contains errors. The abstract of judgment fails to state that the trial court imposed a term of 25 years to life on count 2 under the One Strike law and a term of 45 years to life on count 6. The abstract of judgment must be amended to correct these omissions.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment that fully reflects the sentences imposed on counts 2 and 6 (see pt. C., ante), and to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
We concur: EPSTEIN, P. J., SUZUKAWA, J.