P. v. Austin
Filed 11/30/09 P. v. Austin CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. DEANDRE AUSTIN, Defendant and Appellant. | A122144 (Contra Costa County Super. Ct. No. 050711507) ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING |
BY THE COURT:
The opinion filed herein on October 30, 2009, is modified as follows:
On page 10, insert the following on line 9, after the first full paragraph:
In his petition for rehearing, defendant correctly points out that we introduced his second argument and then failed to address it. We do so now. Defendants argument is at root one of a variance between pleading and proof. The information alleged that all the illicit acts occurred from January 2005 to January 2006, but the evidence adduced at trial involved only events occurring after January 2006. However, defendant did not raise this disparity at any point in the trial court. The point is therefore waived for purposes of review. (E.g., People v. Maury (2003) 30 Cal.4th 342, 427.)
Even if the point had been preserved, it would not compel reversal. Under the generally accepted rule in criminal law a variance . . . is not regarded as material unless it is of such a substantive character as to mislead the accused in preparing his defense . . . . [Citations.] And [n]o accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected 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.) (People v. Peyton (2009) 176 Cal.App.4th 642, 659.) Defendant makes no attempt to argue that he was subjected to this form of prejudice, only that there was no evidence of illegal acts within the period alleged in the information. The matter of whether the acts occurred in 2005 or 2006 was immaterial to defendants theories at trial that he had done nothing improper, or if he had, he had done so while suffering from epileptic seizures which negated the existence of the requisite mental state. Both of these theories were presented at trial and rejected by the jury. Thus, after a thorough review of the record, we conclude that the variance was not prejudicial.
This modification does not effect a change in the judgment.
The petition for rehearing is denied.
Date: ________________ __________________ P.J.
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