NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07CF1113 Carla Singer, Judge.
Gregory L. Rickard, 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, Assistant Attorney General, Eric A. Swenson and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Fidel Lucas Reyes appeals after his conviction on nine counts of committing lewd act upon two different children and the 30 years to life sentence imposed by the court. The two victims were his daughter and his niece. He contends the trial court prejudicially erred when, after the close of evidence, it permitted the prosecutor to amend the time frame alleged in the four counts naming his niece as the victim. He claims the court also erred in prohibiting defendant from initiating communication with his daughter once she becomes an adult, and that the abstract of judgment must be amended. We agree the no-contact order must be vacated and otherwise affirm.
Defendant was charged in the information, with nine counts of violating Penal Code section 288, subdivision (a), lewd act on a child under 14 years of age. Defendant’s niece, C.Z., was alleged as the victim in counts one through four, and his daughter, I.L., was alleged as the victim in counts five through nine. The information further alleged that defendant was ineligible for probation (§ 1203.066, subds. (a)(7) [multiple victims], (8) [substantial sexual conduct]) and subject to sentencing under California’s “One Strike” law (§ 667.61, subds. (b), (e)(5) [multiple victims]).
All statutory references are to the Penal Code unless otherwise stated.
After the parties rested, the prosecutor moved to amend the information to expand the time frame alleged in counts one through four. The court granted the motion over defendant’s objection. The amendment changed the dates of the violations alleged in those counts to “[o]n or about and between [September 1, 2006 and March 28, 2007].” Count one had alleged the offense occurred between September 1, 2006 and September 30, 2006; count two had alleged between December 1, 2006 and December 31, 2006; count three had alleged between January 1, 2007 and January 31, 2007; and count four had alleged on or about February 1, 2007.
The jury found defendant guilty on all counts and found all the special allegations true. The court sentenced defendant to 15 years to life on count one and concurrent 15 years to life terms on counts two through four, the remaining counts involving C.Z. The court imposed a consecutive 15 years to life term on count five and concurrent 15 years to life terms on counts six through nine, the remaining counts involving I.L.
C.Z.’s Testimony (Counts One Through Four)
C.Z., defendant’s niece, was born in 1995. In September 2006, C.Z., her mother (C.), her mother’s boyfriend, her sister, and her two brothers moved in with her uncle (defendant) and his family, including I.L., on Central Street in Santa Ana. I.L. is defendant’s daughter and C.Z.’s cousin. She is almost two years older than C.Z.
C.Z. slept in a king-sized bed with her mother, her little brother and sister, and her mother’s boyfriend. On occasion she would share the bottom bunk with I.L. in I.L.’s room. C.Z.’s grandmother and grandfather stayed at the residence for months at a time. When they were there, they stayed in I.L.’s room and I.L. slept on the floor.
C.Z. testified she does not remember what happened in September 2006, but did talk to social workers about what happened and told them defendant touched her. She testified there was minimal touching over her clothes, “in not like a sexual way that much.” The nature of the touching gradually changed and became “rougher maybe... kind of like more fierce, like, in a weird way.” Most of the time it involved touching her breasts over her clothes.
C.Z. said the first touching occurred in September, but the touching of her breasts began in September or October. She said defendant would run his hands over her breasts on the outside of her clothes and once touched her under her clothes.
The time defendant touched her under her clothes, C.Z. was living at the residence on Central Street. She was in defendant’s bedroom watching television with I.L. and two other cousins. Her cousins, defendant, and she were all lying on the bed. Her cousins were in front of her. Defendant put a blanket over C.Z. and put his hand on her stomach. He ran his hand up her body and over her breasts. C.Z. said he tried to put his hand under her shirt, but she moved and he stopped and turned around.
C.Z. said defendant touched her again in January or February, where “basically like just the same thing” happened and defendant touched her breasts underneath her shirt and bra. This incident happened on the bed in defendant’s room. I.L. and another of C.Z.’s cousins were present. The incident lasted about two minutes and ended when C.Z. got up and moved. C.Z. stated she does not remember defendant touching her thereafter.
C.Z. said she does not remember telling a social worker defendant rubbed her vagina. When discussing further events, C.Z. stated people have told her to try and “forget about it” and she is trying. She told a friend about the molestations and later that day social worker went to C.Z’s school and spoke to her about it. C.Z. said she was honest with the social worker when she told her about defendant touching her. She thinks she told a social worker defendant touched her breasts on four different occasions.
On cross-examination, C.Z. said the first time defendant touched her in a “weird” way was in September or October 2006. She remembers playing horsey on the floor of his bedroom in the middle of September (the horsey incident). Defendant, C.Z., her younger sister, and a cousin were playing. Defendant was on all fours and she rode on his back. He would then shake and she fell off. The others were watching. When she fell off, defendant tickled her on the outside of her shirt. C.Z. said that once the tickling starts, all join in and tickle defendant. She does not remember whether she told a social worker that this was the first time defendant touched her breasts.
C.Z.’s March 28, 2007, Statement to Officer Sweet
Officer William Sweet of the Santa Ana Police Department spoke with C.Z. at her school on March 28, 2007, after he met with a social worker. C.Z. told him the first time defendant touched her in a sexually inappropriate way was in September 2006. She was in watching the television in defendant’s bedroom with I.L. because the family was watching a different program in the living room. C.Z. said she was in the room with I.L. and made no mention of any other person being present. She said she was lying on the bed with I.L. when defendant entered, lay down behind her, and using one hand, started to fondle her breasts under her bra. Defendant fondled her breasts for approximately five minutes. C.Z. remained quiet during the incident because she was embarrassed and afraid of getting caught. The incident ended when C.Z. got up and left the room.
C.Z. said the second incident happened in December, near Christmas. She was again in the bedroom watching television with I.L. Defendant entered the room, lay down on the bed behind C.Z. and rubbed her vaginal area. There was no penetration.
In January 2007, she and I.L. were again in the bedroom. This time, C.Z. was lying on her back and defendant attempted to climb on top of her. C.Z. said she was “scared.”
C.Z. said the last incident she remembered occurred around February 1, 2007. She said defendant put his hands inside her pants and underwear, and rubbed her vaginal area. C.Z. never mentioned anyone other than I.L. being present during any of these incidents.
C.Z.’s May 2007 Statement to the Social Worker
Detective Sandra Gatt went to the social services building on May 8, 2007, for C.Z.’s interview by a social worker. The detective watched the interview from behind a one-way mirror. The social worker asked C.Z. where she had been touched by defendant and C.Z. said he touched her breasts and vagina, “grabbing her vagina over the underwear.” C.Z. said defendant touched her breasts skin-to-skin a total of four times. The first time happened the month after her family moved in with defendant’s family in September. On that occasion defendant rubbed her breasts with his hand, skin-to-skin. Defendant put his hands under her shirt and slowly moved them up to her breasts.
The social worker asked C.Z. to describe each event separately as they occurred. C.Z. said the first time occurred on the floor of defendant’s bedroom. She, her little sister, and her cousin were playing “horsey” with defendant. She fell off defendant’s back, and while she was on her back, defendant put his hands under her blouse and touched her breasts.
She said the other incidents occurred on defendant’s bed and he did the same thing, reaching under her blouse and touching her breasts. C.Z. said the next incident occurred in January 2007, when defendant put a blanket over the two of them. He touched her breasts on that occasion. Defendant and C.Z. were behind I.L., who was at the “front” of the bed at the time. C.Z. said her cousins were in the room at the time.
C.Z. also said defendant rubbed her vagina through her clothing, not under the clothing, and her cousins were in the room at the time. The social worker asked C.Z. if defendant ever made any comments to her about her private parts. C.Z. said he made comments to her about her “butt” and I.L.’s breasts.
Counts Five Through Nine
A thorough recitation of the facts relevant to I.L.’s molestations, counts five through nine, is unnecessary given the issues raised on appeal. Suffice it to say that when she was under 14 years of age defendant molested her at night when the “whole family” shared a bed at the residence on Cypress Street and, when they lived on Central Street, he molested her in her bedroom multiple times at about 2:00 a.m. before he would go to work.
C.Z.’s mother, C., is the sister of defendant’s wife. In 2005, defendant rented a converted garage at C.’s residence. Defendant’s family lived in the garage for three or four months. Several times during that time period C. went into the garage when defendant’s family was in bed. They slept on two mattresses pushed together. C. went into the garage to watch television at night. She never saw defendant on the bed next to I.L., and never saw defendant touch I.L. or C.Z. inappropriately.
Defendant’s family moved to Irvine and then to the residence on Central. C. and her children moved in with defendant’s family on Central around March or April 2006. C. saw C.Z. and I.L. in defendant’s room watching television several times while defendant was sleeping in the living room. Once or twice she saw C.Z. watching television in defendant’s bedroom while defendant was in the room. During the year she lived on Central with defendant and his family, C. never saw defendant touch either of the girls inappropriately.
While they all lived together on Central, C. got up several times during the night, “everyday, ” to get a bottle for her youngest. She never saw defendant entering or leaving I.L.’s bedroom on these occasions.
One of I.L.’s brothers testified that while their family lived in the garage on Cypress, he, his mother, I.L., his younger brother, and defendant all slept in the same bed. He never saw his father touch I.L. inappropriately. They shared a bed when they lived at the Broadway address too, and he never saw his father touching his sister inappropriately in the middle of the night.
A. Amendment of the Information
Defendant contends the trial court violated his right to fair notice and an opportunity to present a defense when it permitted the prosecution to amend the alleged dates of violation in counts one through four of the information after the defense had rested. He says he now stands convicted of offenses he had not been charged with and did not have the opportunity to defend because the amendment occurred after the close of evidence.
1. The Complaint and the Preliminary Examination
As will be demonstrated below, it is necessary to review the evidence admitted at the preliminary examination in order to address defendant’s argument. The four counts in the complaint charging the molestations involving C.Z. were alleged as counts three through six. They were renumbered in the information. For convenience we will refer to those counts as they are charged in the information, i.e., counts one through four, respectively.
Count one alleged a lewd act occurred between September 1, 2006 and September 30, 2006; count two alleged a lewd act occurred between December 1, 2006 and December 31, 2006; count three alleged a lewd act occurred between January 1, 2007 and January 31, 2007; and count four alleged a lewd act occurred on or about February 1, 2007. The dates alleged in the complaint correspond to the dates alleged in the original information.
C.Z. did not testify at the preliminary examination. Instead, the prosecution presented C.Z.’s hearsay statements through the testimony of a qualified law enforcement officer, William Sweet. (See § 872, subd. (b).) Sweet interviewed C.Z. at her school on March 28, 2007.
The prosecutor informed the court that this incident was alleged as what subsequently became count one of the information.
C.Z. said the first incident with defendant occurred in September 2006. She knew it was in September because it corresponded to the beginning of school. C.Z. had started watching television in the living room, but did not like what was on, so she went into defendant’s room with her cousin, I.L. to watch television in defendant’s room. The rest of the family was watching television in the living room. Defendant went into his bedroom some time after C.Z. and I.L. were already there watching television.
I.L. was on the bed “in front” C.Z. was behind her, lying on her side. Defendant entered and sat down or lied down behind C.Z. Defendant reached under C.Z.’s bra with one hand and touched her breasts, skin-to-skin. C.Z. remained still because she was embarrassed and afraid. The incident lasted about five minutes.
b. Second Incident (December 2006)
C.Z. said a second incident occurred in December 2006, before Christmas, and that nothing happened in October or November. C.Z. was again watching television in defendant’s bedroom. This time she was seated on the bed and I.L. was again in front of her. Defendant “grabbed” C.Z.’s breasts and touched her vaginal area with his hand, skin-to-skin. He rubbed her vaginal area for approximately five minutes.
c. Third Incident (January 2007)
C.Z. said the third incident occurred in January 2007, prior to her going to day camp. It too, happened in defendant’s bedroom while watching television. I.L. was present. I.L. was on the bed, C.Z. was lying behind her, and defendant was behind C.Z. C.Z. was lying on her back during this incident when defendant fondled C.Z.’s breasts underneath her bra and attempted to climb on top of her.
d. Fourth Incident (February 1, 2007)
The fourth and last incident occurred in February 2007, near the first of the month. C.Z. said she went to day camp shortly after the date of this incident. This incident took place in the same bedroom and I.L. was present. This time defendant fondled C.Z.’s vagina, skin-to-skin.
“Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them. [Citations.]” (People v. Seaton (2001) 26 Cal.4th 598, 640.) “[T]he information has a ‘limited role’ of informing defendant of the kinds and number of offenses; ‘the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript, ’ which represents ‘the touchstone of due process notice to a defendant.’ [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 312.) “‘Where... the particulars are not shown by the preliminary hearing transcript, the defendant is not on notice in such a way that he has the opportunity to prepare a meaningful defense.’” (People v. Graff (2009) 170 Cal.App.4th 345, 366.)
In California, a trial court has discretion to permit the amendment of an information “for any defect or insufficiency, at any stage of the proceedings.” (§ 1009.) There are two caveats to the exercise of that discretion: (1) the information “cannot be amended so as to change the offense charged, nor... so as to charge an offense not shown by the evidence taken at the preliminary examination” (ibid.) and (2) the amendment must not violate the defendant’s substantial rights. (Ibid.) “[S]ection 1009 protects a defendant’s right to due process. (People v. Pitts (1990) 223 Cal.App.3d 606, 903-904.) On appeal, the defendant bears the burden of establishing the trial court abused its discretion in permitting an amendment to the information. (People v. Wimberly (1992) 5 Cal.App.4th 773, 795.) A showing that the amendment impaired the defendant’s ability to defend the charge(s) affected by the amendment demonstrates an abuse of discretion. (Ibid.)
An information “may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.” (§ 739.)
As stated above, the prosecutor moved to amend the information to allege each of the four charged molestations involving C.Z. occurred during a six-month period from September 2006 to March 2007, from the separate one month increments that had been alleged. Defendant argues the amendment prejudiced him because it occurred after he had already “put forth a defense to impeach the times that the prosecution had alleged that the molestations occurred. The defense case was founded on [C.Z.’s] contradictory pretrial statements and testimony that conflicted with the dates included in the original pleadings that were based on the preliminary hearing evidence.” Defense counsel did not seek a continuance to determine whether there was other defense evidence available or necessary to defend against the C.Z. charges now that the date of violation in each of the charges was expanded. Neither did he move to recall C.Z. to the witness stand.
Count four had alleged the offense occurred on or about February 1, 2007.
Defendant acknowledges the prosecutor could have amended the information earlier “if the prosecutor had reviewed [C.Z.’s] social worker interview in which she contradicted the molest dates that she purportedly gave to Sweet in her first report.” It therefore appears the amendment did not catch defendant by surprise, only the fact that the district attorney had not made the amendment much earlier. The change in dates did not prejudice defendant. His defense to the C.Z. charges was the same as his defense to the I.L. charges, a number of which had been alleged as having occurred within a one-year time frame - that there was nothing to corroborate any of the allegations. Additionally, he was able to argue C.Z. was inconsistent regarding dates, although all the dates came within the six-month period set forth in the amendment. He does not contend his cross-examination of C.Z. would have been any different had the amendment been made before the trial.
Defendant contends the amendment “circumvented the defense’s evaluation of the prosecution’s case that would have guided its plea negations.” Not only is there no evidence to support this claim, the fact that defendant admits the amendment could have been made earlier is fatal to such a claim. That an information may properly be amended placing the defendant in a less favorable position is a fact defense counsel would consider in attempting settlement.
In People v. Williams (1901) 133 Cal. 165, the Supreme Court reversed the defendant’s conviction for rape of a minor child when he had been charged with one count, but the jury was presented with evidence of hundreds of incidents and was not instructed that it must unanimously agree upon the act underlying the conviction. The court recognized a defendant’s right to notice of a specific charge to enable him to defend against it, but noted “the particular date or time of the offense is immaterial (assuming it occurred within the applicable statute of limitations). (Id., at pp. 168-169.)” (People v. Jones, supra, 51 Cal.3d at p. 306.)
Moreover, even without the amendment the prosecution was not required to prove each offense occurred on the date or dates alleged, but rather only that the offenses occurred reasonablyclose to the alleged dates. (People v. Peyton (2009) 176 Cal.App.4th 642, 660.) In Peyton the defendant had been charged with committing certain sex offenses against a child “‘on or about October 1, 2005.’” The evidence showed that if the offenses occurred, they occurred in the fall of 2004. In upholding the convictions despite this variance, the court found “[t]he date on which an offense was committed need not be stated in an accusatory pleading unless the date is material to the offense (§ 955), and the evidence is not insufficient merely because it shows the offense was committed on another date. [Citation.] The October 1, 2005, date was not material to any of the charged offenses.” (Id. at p. 660.)
Nor were the preamendment dates material to the charged offenses here. Defendant did not offer an alibi defense. Except as discussed below in connection with count one, defendant was charged with specific instances of misconduct, the probable cause for which was supported by the evidence at the preliminary examination. The amendment did not change the charged underlying conduct. Thus, defendant had prior notice of the acts he must defend against. In each count the jury found him guilty because it found the same act shown at the preliminary examination was proven beyond a reasonable doubt at trial. We therefore conclude defendant had notice of the charges he had to defend, the court did not err in permitting the amendment, and the amendment did not prejudice any of defendant’s substantial rights.
During her argument to the jury, the prosecutor informed the jury that the basis for the offense charged in count one of the information was the horsey incident. There was no evidence of that incident in the preliminary examination. We invited the parties to address whether the prosecutor’s reliance upon the horsey incident as the basis for count one requires reversal. Defendant filed a letter brief stating that the horsey incident “has no relevance to distinguish that count from [defendant’s] argument that all [C.Z.] counts must be reversed.” The Attorney General concurs. Additionally, the Attorney General points out defendant did not object to the prosecutor’s election and asserts defendant has forfeited a challenge to the prosecution’s reliance on acts not shown at the preliminary hearing. We agree. (People v. Gil (1992) 3 Cal.App.4th 653, 659.) Defendant objected to changing the dates of, not the act that constituted, the charged molestation.
B. No-Contact Order
At sentencing, the trial court ordered defendant to have no contact with C.Z., or I.L., until she reaches the age of majority and thereafter only if she initiates contact first. The Attorney General concedes the court lacked the jurisdiction to make this order and we accept the concession. The no-contact order was not authorized by the Penal Code sections under which the sentence was imposed. (§§ 288, 667.61.) “[A] sentencing court has a duty to impose the punishment prescribed by law and has no discretion to deviate from that punishment. [Citations.]” (People v. Superior Court (Peterson) (1992) 12 Cal.App.4th 16, 20, fn. omitted.)
Section 136.2, subdivision (a), authorizes the issuance of a protective order to protect victims and witnesses during the pendency of a criminal matter or as a condition of probation. When a defendant is sentenced to prison, the criminal proceeding is at an end and this section does not authorize issuance of a protective order after criminal proceedings have concluded. (People v. Stone (2004) 123 Cal.App.4th 153, 159-160.) The no-contact order issue in this matter “transcended the authorization of section 136.2 and must be reversed.” (Id. at p. 160, fn. omitted.)
C. Restitution and Administrative Fee
At sentencing, the court ordered defendant to pay $1320 to the State Victim Compensation Board. “As to restitution and pursuant to the request of the People, the court will today sign and order directing you to pay $1320 to the State Victim Compensation Board to reimburse payments to the victim from the restitution fund.” Section 11 of the August 25, 2009 amended abstract of judgment states: “Pay restitution to the victim(s) in the amount of $1320.00 as to count(s) 1 through 9. As to count(s) 1 through 9, Court orders the defendant to pay restitution to the State Victim Compensation Board, to reimburse payments to the victim from the Restitution Fund, in the amount of: $1320.00, plus an administrative fee at 10 percent of the restitution owed (Penal Code 1203.1(1)) and any future Mental Health Treatment.” (Italics added.) The court’s minute order from February 27, 2009 also states defendant is to pay restitution to the victim(s).
To the extent the amended abstract and the court’s minute order purport to require restitution made directly to the victims, each is in conflict with the court’s oral pronouncement. The oral pronouncement prevails, as the Attorney General concedes. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) Therefore, the abstract of judgment must be corrected to conform to the court’s oral pronouncement and omit the above italicized language from the August 25, 2009 abstract of judgment. (See People v. O’Neal (2004) 122 Cal.App.4th 817, 821.)
Lastly, defendant contends the abstract of judgment must also be corrected to delete the 10 percent administrative fee imposed on the collection of restitution because the court did not orally impose the fee. Unlike the restitution issue, the fact that the court did not announce the imposition of the administrative fee does mean the abstract is in error. The amount of restitution a defendant must make, if any, is left to the discretion of the sentencing court. (See People v. Brasure (2008) 42 Cal.4th 1037, 1075; § 1202.4, subd. (f)(1).) The administrative fee attached to a restitution order, on the other hand, is not subject to the court’s determination. The fee is mandatory when the defendant is sentenced to prison. (§ 2085.5, subd. (c).) Should a court fail to impose the fee, that portion of the sentence is unauthorized and may be corrected at any time. (Cf. People v. Turner (2002) 96 Cal.App.4th 1409, 1413 [mandatory lab analysis fee]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255-1256 [mandatory parole revocation fine].) The only error in the abstract of judgment with regard to the 10 percent administrative fee is that the abstract indicates the fee is required by section 1203.1, when it is section 2085.5, subdivision (c) that mandates the fee.
Section 1203.1 applies to grants of probation.
The order directing defendant to have no contact with the alleged victims is reversed. The abstract of judgment is ordered amended (1) to delete the requirement of direct payment of restitution to the victims, and (2) to reflect that the 10 percent administrative fee on the restitution order is required by section 2085.5, subdivision (c). In all other respects the judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.