P. v.
Filed 11/7/13 P. v. Carlton CA3
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
THIRD APPELLATE DISTRICT
(Sacramento
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES DOMINIQUE CARLTON,
Defendant and Appellant.
C069612
(Super. Ct. No. 10F06233)
A
jury convicted defendant James Dominique Carlton of numerous sexual offenses
against three victims, sustaining an allegation that the existence of multiple
victims qualified him for the alternative sentencing scheme under Penal Code
section 667.61.
title="">[1] Accordingly, the trial court sentenced
defendant to seven consecutive indeterminate terms of 15 years to life in
indeterminate term of 25 years to life for a count involving a forcible
offense, all of which was consecutive to a five-year determinate term for an
attempted offense. The court also
imposed a concurrent one-year jail term for the misdemeanor conviction in count
10.
On
appeal, defendant contends the trial court violated his
prosecutor to amend the information to conform to the dates proven at
trial. He maintains that the misdemeanor
offense in any event is time-barred, a point the People concede. He also maintains that the abstract of
judgment for the determinate term lists the wrong attempted offense in count 3
(§ 288.7, subd. (b), rather than § 288, subd. (b)(1)), a point the
People concede, and the indeterminate abstract of judgment includes a $600 fine
for the “Serious Habitual Offender Program†that the trial court expressly
declined to impose in its oral rendition of judgment, a point the People also
concede and which the trial court has subsequently corrected in an amended
abstract of judgment. We will modify the
judgment by reversing count 10 with directions to dismiss it, and also direct
the trial court to issue a corrected determinate abstract of judgment. As modified, we will affirm the judgment.
Defendant
does not challenge the sufficiency of the evidence to support the judgment in
any respect, and we do not need to determine prejudice from any error. We accordingly omit a separate recitation of
the facts underlying defendant’s convictions or the procedural background, and
will incorporate the necessary details in the Discussion.
DISCUSSION
I. The Trial
Court Properly Allowed Amendment of the
Information at Trial to Conform to Proof
The second
amended information initially alleged that count 9 took place between March
2004 and March 2005, and count 10 took place between March 2001 and March
2002. The victim testified that the
incident in count 9 (defendant rubbing her menstrual pad) occurred when she was
“11 or 12†during cold weather more than 18 months before her mother’s death in
February 2005, probably during the winter of 2003. Count 10 (defendant exposing his penis to
her) occurred when she was 10 or 9;
she had previously told the police that it had happened when she was 10.
In
the midst of the victim’s cross-examination, the prosecutor moved to amend the
dates alleged in count 9 to between March 2002 (the victim’s 11th birthday) and
February 2005, and in count 10 to an initial date of March 2000. The trial court indicated it was inclined to
grant a motion to conform to proof, but it agreed to delay its ruling until the
victim finished testifying in case there were any further changes in her
estimation of the dates. Defense counsel
did not suggest his cross-examination would be impeded in any way. After the completion of the victim’s
testimony, the trial court returned to the proposed amendments. Defense counsel remarked, “if there was a way
to object to it, I do. It’s late in the
game and the dates keep changing, and I think it’s unfair and maybe prejudicial
to [the] defense, but I understand the law.â€
However, he did not identify any specific objection. The trial court found that defendant had not
incurred any prejudice in his ability to cross-examine the witness, noting that
“time frames are always fluid in these types of cases.â€
Section
1009 gives a trial court discretion to amend an information to correct any
defect at any stage of the proceedings (so long as this does not result in
charging an offense not reflected in the preliminary hearing), if a defendant
would not be prejudiced as a result. (
345, 361-362.) Where, as here, a
defendant waived a preliminary hearing, an amendment cannot add offenses not
reflected in the complaint. (
642, 654.) Defendant contends amending
the date range to a time period other than that alleged in the pertinent
pleading violates this restriction.
His
authority is inapposite. In both cases,
enlargement of the date range originally alleged allowed the prosecution to
base a conviction on additional acts
that were not within the original date range.
(People v. Dominguez (2008)
166 Cal.App.4th 858, 866 [alternate act of vehicle theft/unauthorized
use]; People v. Kellin (1962) 209 Cal.App.2d
574, 575-576 [additional stolen check].)
Here, by contrast, the change in dates did not alter the nature of the
offense charged (People v. Anthony
(1912) 20 Cal.App. 586, 590) nor enlarge the number of acts on which the
count was based. The date is not a
material element of the offense (People
v. Jones (1990) 51 Cal.3d 294, 316), because alleging that an offense
is committed on or about a date allows the prosecution of any act within the
whole limitations period (4 Witkin & Epstein, Cal. Criminal Law
(3d ed. 2000) Pretrial Proceedings, § 192, p. 399; Anthony, at p. 590).
Thus, it is not apparent there even was any need to amend the
information. (See People v. Sherman (1962) 211 Cal.App.2d 419, 424.)
Defendant
contends he nonetheless was prejudiced even if the amendment was permissible
(even if he did not state any particular basis for a finding of prejudice in
the trial court). He notes that the
parties stipulated that he was in custody from August to November 2002, and
from July 2003 to July 2004. That would
be material, however, only if he had an alibi for the entire period originally alleged, which would be eviscerated by
expanding the time range to periods not covered by his alibi. The expansion of the time period in count 9,
by contrast, actually made his first period of custody relevant to the
charge. As for count 10, neither period
of custody was relevant either before or after the amendment. As we do not discern any prejudice, the trial
court did not abuse its discretion in allowing the amendment of the information
to conform to proof.
II. The
Misdemeanor Offense in Count 10 Is Time-barred
Count
10 alleged a violation of section 647.6, subdivision (a), misdemeanor “child
annoyance,†between March 2000 and March 2002.
This offense has a one-year limitations period, which is extended to
three years if the victim is under the age of 14. (People
v. Crabtree (2009) 169 Cal.App.4th 1293, 1309; § 802, subds. (a)
& (b).) The amended complaint in
which count 10 first appeared was not filed until March 2011. The People thus properly concede that we must
reverse the conviction and direct the trial court to dismiss count 10.
DISPOSITION
Count
10 is reversed with directions to dismiss it as time-barred. As modified, the judgment is affirmed. The trial court shall prepare an amended
determinate abstract of judgment to reflect that the conviction in count 3 is
for an attempted violation of section 288, subdivision (b)(1) and forward a
certified copy to the Department of
Corrections and Rehabilitation.
BUTZ ,
J.
We concur:
NICHOLSON ,
Acting P. J.
HULL ,
J.
Penal Code.
