[*][i]The Plea and Sentencing[/i] [/numbered]

This case arises from a 2010 shooting and attempted vehicle burglary involving Ariaz, Jose Navarro, and Freddie Sanchez. A jury found Navarro and Sanchez guilty of attempted burglary, shooting at an occupied vehicle, and assault with a semiautomatic firearm, and found true multiple gang enhancement allegations. We affirmed the convictions but reversed the judgment as to Navarro based on sentencing errors. ([i]People v. Sanchez [/i](Sept. 3, 2014, B246346) [nonpub. opn.].)

On March 9, 2012 Ariaz pleaded no contest to two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 3 and 4), and as to count 3, he admitted the allegations he personally used a firearm (§ 12022.5, subd. (a)) and committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)). The trial court sentenced Ariaz to an aggregate term of 26 years in state prison. On count 3, the court imposed the upper term of nine years for assault with a semiautomatic firearm, plus the upper term of 10 years for the firearm enhancement and five years for the gang enhancement. The court imposed a consecutive term of two years on count 4 (one-third the middle term of six years). The court dismissed the remaining counts and enhancement allegations.

[*][i]The Secretary’s Recommendation for Recall and Resentencing and the Superior Court’s Summary Denial [/i] [/numbered]

On June 28, 2018 the Secretary sent a letter to the superior court recommending Ariaz’s sentence be recalled and Ariaz be resentenced pursuant to former section 1170, subdivision (d)(1). The Secretary recommended the court consider Ariaz’s sentence in light of [i]People v. Le[/i] (2015) 61 Cal.4th 416, 425, decided after Ariaz’s sentencing, in which the Supreme Court held a trial court cannot impose both a sentencing enhancement for personal use of a firearm under section 12022.5, subdivision (a)(1), and a gang enhancement for a serious felony under section 186.22, subdivision (b)(1)(B), when the offense qualifies as a serious felony solely because of the use of a firearm.

The Secretary concluded, “Based on the above facts and case law, it appears that inmate Ariaz’s sentence warrants the attention of the court. Pursuant to section 1170, subdivision (d), as the Secretary, I recommend the inmate’s sentence be recalled and that he be resentenced in accordance with the cited authority.”

On June 2, 2021 the superior court summarily rejected the Secretary’s recommendation without appointing counsel for Ariaz or holding a hearing, as shown by a handwritten note on the Secretary’s letter stating the letter was “[r]ead” and “considered,” and “[n]o action” was taken. The court provided no explanation for the denial (or why the recommendation was rejected three years after the Secretary’s letter was filed in the superior court).

Ariaz timely appealed.[url=#_ftn2][2][/url]

[*][i]Recall and Resentencing Under Former Section 1170, Subdivision (d)(1), and Section 1170.03[/i] [/numbered]

As we explained in [i]People v. McCallum[/i] (2020) 55 Cal.App.5th 202, 210, former section 1170, subdivision (d)(1), “‘is an exception to the common law rule that the court loses resentencing jurisdiction once execution of sentence has begun.’” (Quoting [i]Dix v. Superior Court[/i] (1991) 53 Cal.3d 442, 455; accord, [i]People v. McMurray[/i] (2022) 76 Cal.App.5th 1035, 1040 ([i]McMurray[/i]); [i]People v. Frazier [/i](2020) 55 Cal.App.5th 858, 866.) Section 1170.03 provides a similar exception, authorizing the Secretary “to recommend to the superior court that the court recall a previously imposed sentence and resentence the defendant.” ([i]McMurray[/i], at p. 1040.) Section 1170.03, subdivision (a)(1), authorizes the superior court “upon the recommendation of the [S]ecretary or the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case, [to] recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.”

Under section 1170.03, upon receiving a recommendation from the Secretary or other designated entity for recall and resentencing, the superior court “shall apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (§ 1170.03, subd. (a)(2).) Further, section 1170.03, subdivision (a)(3), makes clear its provisions apply “regardless of whether the original sentence was imposed after a trial or plea agreement.” In addition, like former section 1170, subdivision (d)(1), section 1170.03 provides guidelines for recall and resentencing, including the post-conviction factors a court may consider. (See § 1170.03, subd. (a)(4).)

Significant for this appeal, section 1170.03, subdivision (b)(1), requires the superior court to provide notice to the defendant of the recommendation, set a status conference within 30 days after receipt of the recommendation, and appoint counsel to represent the defendant. Further, the court must “state on the record the reasons for its decision to grant or deny recall and resentencing.” (§ 1170.03, subd. (a)(6).) In addition, section 1170.03, subdivision (b)(2), provides “[t]here shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18.”[url=#_ftn3][3][/url]

[*][i]We Remand for the Superior Court To Reconsider the Secretary’s Recommendation in Light of Section 1170.03[/i] [/numbered]

Ariaz contends Assembly Bill 1540 applies retroactively to his appeal because it constitutes an ameliorative change to the law that became effective before his judgment became final. (See [i]In re Estrada[/i] (1965) 63 Cal.2d 740, 744 ([i]Estrada[/i]) [when the Legislature amends a statute to reduce the punishment for a criminal offense, the amended statute is presumed to apply to all defendants whose judgments were not yet final on the statute’s operative date, unless the Legislature clearly states to the contrary].) The People argue [i]Estrada[/i] does not apply because Ariaz appeals from an order rejecting a recommendation to reopen his final judgment, not from a judgment that is not yet final. However, the People agree with Ariaz that we should reverse and remand to the superior court for reconsideration of the Secretary’s recommendation because even if we were to affirm the court’s order, the Secretary would simply submit a new recommendation under section 1170.03. Thus, reversal at this stage furthers judicial efficiency.

We agree that reversal of the superior court’s order summarily rejecting the Secretary’s recommendation is appropriate and remand for the court to reconsider the recommendation in light of section 1170.03. In [i]McMurray, supra[/i], 76 Cal.App.5th at page 1040, our colleagues in the Third Appellate District reversed a similar rejection of a recommendation by the Secretary made under former section 1170, subdivision (d), reasoning the legislative history of Assembly Bill 1540 “indicates that the bill was, in part, intended to clarify the Legislature’s intent regarding former section 1170(d)(1), which it had amended in 2018. Specifically, the Legislature sought through Assembly Bill 1540 to ‘ensure due process and equitable application in these types of resentencing cases’ and indicate that trial courts should accept the [Department of Corrections and Rehabilitation’s] resentencing recommendations.” ([i]McMurray[/i], at p. 1040.)

Although section 1170, subdivision (d)(1), does not provide all the procedural protections afforded by section 1170.03, including a right to counsel (see [i]People v. Frazier, supra[/i], 55 Cal.App.5th at p. 866), we agree with [i]McMurray, supra[/i], 76 Cal.App.5th at pages 1040 to 1041 that the Legislature has now made clear its intent to ensure a defendant be afforded procedural protections to address due process concerns and equitable application of sentencing laws upon a recommendation by the Secretary for recall and resentencing under section 1170, subdivision (d)(1). These protections are now specifically enumerated in section 1170.03. We reverse and remand to the superior court for reconsideration of the Secretary’s recommendation pursuant to section 1170.03.[url=#_ftn4][4][/url]

The superior court’s order declining to follow the Secretary’s recommendation for recall and resentencing is reversed. The matter is remanded to the superior court for the court to reconsider the Secretary’s recommendation and exercise its discretion under section 1170.03 whether to recall and resentence Ariaz. On remand, the court is to provide Ariaz with all procedural protections afforded under section 1170.03, including among others, appointment of counsel for Ariaz and a hearing on the Secretary’s recommendation.

FEUER, J.

We concur:

PERLUSS, P. J.

WISE, J.[url=#_ftn5][sup]*[/sup][/url]

[url=#_ftnref1][1][/url] Further statutory references are to the Penal Code.

[url=#_ftnref2][2][/url] A superior court order declining to follow the Secretary’s recommendation pursuant to section 1170, subdivision (d)(1), is an appealable order. ([i]People v. Frazier[/i] (2020) 55 Cal.App.5th 858, 863, fn. 2; [i]People v. McCallum[/i] (2020) 55 Cal.App.5th 202, 211, fn. 7.)

[url=#_ftnref3][3][/url] Section 1170.18, subdivision (c), defines in the context of Proposition 47, the Safe Neighborhoods and Schools Act of 2014, that an “‘unreasonable risk of danger to public safety’ means an unreasonable risk that the petitioner will commit a new violent felony” enumerated in a specified list of serious or violent felonies commonly referred to as “super strikes.”

[url=#_ftnref4][4][/url] Like [i]McMurray[/i], [i]supra[/i], 76 Cal.App.5th at page 1042, we need not reach whether [i]Estrada, supra[/i], 63 Cal.2d 740 requires reversal.

[url=#_ftnref5]*[/url] Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[*][i]The Prior Appeal [/i] [/numbered]

On June 7, 2018 a staff member from the Los Angeles County Department of Public Social Services (DPSS) called the Los Angeles County Department of Children and Family Services (Department) and alleged Mother physically abused Marcus. Marcus was “‘hyperactive,’” and Mother threatened to “‘whoop’” Marcus and told him to “‘shut up’” several times. A DPSS client reported Mother “‘shook the child and hit the child forcibly.’” On July 16, 2018 the Department filed a petition on behalf of Marcus pursuant to section 300, subdivisions (a) and (b)(1). On August 7, 2018, the juvenile court sustained the allegations that on June 7 Mother physically abused Marcus by forcibly shaking and striking his body. The physical abuse was excessive, causing Marcus unreasonable pain and suffering and placing him at risk of serious physical harm.

At the August 28, 2018 disposition hearing, the juvenile court declared Marcus a dependent of the court and removed him from Mother’s physical custody. The court ordered Mother to attend parenting and anger management classes and individual counseling to address case issues. The court ordered Marcus to have an attention-deficit hyperactivity disorder (ADHD) assessment, individual counseling to address case issues, and conjoint counseling with Mother if recommended by his therapist. The court granted Mother monitored visits for a minimum of two times a week for two hours each visit, with the Department having discretion to liberalize visitation.

Mother appealed from the jurisdiction findings and disposition order, and we affirmed. ([i]In re Marcus P.[/i] (Mar. 20, 2019, B292348) [nonpub. opn.].) On August 24, 2020 the juvenile court terminated jurisdiction and entered a juvenile custody order granting joint legal custody to Mother and Father and physical custody and primary residence to Mother. The court restricted Father’s visitation to monitored visits for a minimum of two times per month because his whereabouts were unknown and he did not participate in services.

[*][i]The Current Referral[/i] [/numbered]

On December 24, 2020 Mother called the Department’s hotline and requested six-year-old Marcus be removed immediately from her home because she did not want to end up in jail for doing something to him. Mother reported Marcus had been detained by the Department (the prior case), and after he was returned to her care, there was “‘something wrong with him,’” explaining he “‘crie[d] for everything,’” was “‘not listening’” to Mother, and “‘kept [Mother] up all night.’” Mother added Marcus had “‘pushed [her] to [her] limits’” and she “‘can’t do it anymore.’” Mother declined to provide her name or address. In a subsequent phone interview, Mother admitted she had called the Department to request Marcus’s removal. But Mother changed her mind because Marcus had calmed down and was now well-behaved.

[*][i]The Dependency Petition and Investigation [/i] [/numbered]

On December 29, 2020 the Department filed a petition on behalf of Marcus under section 300, subdivision (b)(1). The petition alleged Mother was unable and unwilling to provide Marcus with ongoing care and supervision because she requested Marcus’s removal from her home on December 24. At the January 4, 2021 detention hearing, the juvenile court released Marcus to Mother’s home on condition Mother comply with wraparound services, submit to a medical “HUB” exam, and make herself and Marcus available to the Department.

In a January 28, 2021 interview with the dependency investigator, Mother stated she contacted the child abuse hotline “‘to scare [Marcus] because he wasn’t listening.’” Mother said, “‘Everything is okay now. During Christmas he wasn’t listening to anything. He was running around and I don’t get much sleep at night because he’s up all night. I was just at my breaking point. I’m just tired.’”

Father stated he resided with Mother and Marcus until November 3, 2020, when he left because Mother assaulted him. Father explained, “‘[S]he hit me with a Lysol can and busted my head open.’” According to Father, Marcus was present and begged Father not to leave. Marcus refused to talk about why Father left or whether Father and Mother fought. Mother denied she struck Father. She disclosed Father was on probation,[url=#_ftn2][2][/url] and she did not want him to know where she lived or to contact her or Marcus “‘until he gets his life together.’” Mother did not want Father to be involved because “‘he teaches [Marcus] not to listen.’” Father admitted he had a prior arrest for domestic violence against Mother while she was pregnant with Marcus. But Father said the charges were dropped for lack of evidence and added, “‘I never put my hands on her.’”

On February 4, 2021 the dependency investigator interviewed Marcus. She asked Marcus whether he behaved well at home, and he responded, “‘Sometimes.’” When asked what happened when he got into trouble, Marcus replied, “‘I get whooped. My mom will whip me with a belt.’” When questioned about where he got hit with the belt, Marcus laughed and said, “‘All over my body.’” The dependency investigator inquired as to the time frame, and Marcus responded, “‘It was a long time ago like tonight.’” Marcus did not provide a direct answer to the question whether he knew the difference between the truth and a lie. When Marcus was asked whether he was fearful or scared of Mother, he laughed and said, “‘No.’” Mother denied any prior or continuing corporal punishment or physical abuse of Marcus. She asserted the prior dependency case was based on false allegations of physical abuse. Mother claimed when Marcus was in foster care corporal punishment was used on him and he developed negative behaviors.

[*][i]Subsequent Events[/i] [/numbered]

On February 10, 2021 a caller contacted the Department and alleged Mother physically abused Marcus. In a February 17 interview, Mother denied she abused Marcus. Mother stated if she was harming Marcus, he would be afraid of her and have marks on his body. The social worker performed a visual body check of Marcus and did not observe marks on his body. During the interview of Mother, Marcus threw his toys, jumped on the furniture, rolled around on the living room floor, took the social worker’s cell phone, pushed Mother, and grabbed Mother’s arms. Mother told Marcus to stop, but he did not listen. He denied Mother hit him, but he said Father hurt him. When asked further questions, Marcus repeated, “‘I can’t tell you.’”

On March 8, 2021 the Department received a referral alleging Father physically abused Marcus. The next day Mother sent the social worker text messages she had received from Father, including a profile picture of Father holding a gun and audio messages from Father saying “‘you’re dead bitch,’” “‘I’m going to beat your mother fucking brains out,’” “‘I’m going to shoot that whole mother fucking house up,’” and “’everyone in that mother fucker is dying.’” Mother reported she and Marcus were staying with her paternal aunt, Vanessa C., because Father knew where Mother lived. Mother was in the process of getting a housing voucher to move out of state to protect herself from Father. Mother requested a restraining order, and on March 17 the juvenile court issued a temporary restraining order protecting Mother and Marcus from Father.[url=#_ftn3][3][/url]

Two forensic examinations of Marcus were conducted in March 2021. The doctor reported in the first examination that Marcus was very active and the healed scratches and marks on his body were not consistent with a belt mark. When asked by the doctor whether his Mother told him what to say, Marcus responded, “My mom told me to say I was lying.” Marcus said he told the truth to the social worker that Mother “‘worked [him] with the belt, and it hurt.’” When asked where on his body, Marcus pointed to his arms, legs, and torso. In a forensic examination three weeks later, Marcus initially stated his Mother punched him in the stomach when he got out of the bath, and he repeated that she hit him with a belt. But Marcus then said Mother punched him in his old house, but not again in his new house. He also told the social worker he had lied when he said Mother hit him with a belt. Marcus said he could not talk about the incidents he disclosed during the interview. The investigation into physical abuse of Marcus was closed as inconclusive.

In a March 16, 2021 interview with the dependency investigator, Vanessa reported Mother and Marcus stayed with her for two or three days in March. Mother then stayed at a cousin’s house, but she left Marcus with Vanessa. Mother told Vanessa she was going to look at a place to live in Las Vegas, then she would return to pick up Marcus. Vanessa had seen Mother hit Marcus when he was younger, but she had not observed this happening recently. Mother let Marcus do what he wanted, and Mother did not have patience with him. Vanessa very seldom had to discipline Marcus because he listened to her. In an interview two days later, Vanessa stated, “‘I do know [Marcus] loves his mom but she doesn’t do right. He’s told me, “I’m scared to go with my mom” but he doesn’t tell me why and I don’t ask. I’m always concerned when he’s with her.’”

Marcus admitted to the dependency investigator he felt scared when Mother hit him, but he was “‘happy now’” staying with Vanessa. Marcus stated Mother hit him “‘with a belt all over [his] body,’” which he demonstrated by punching his chest, stomach, legs, and arms. Marcus added, “‘I would scream and start crying.’” But then Marcus recanted, “‘Actually I think she never hit me. She never hit me because I would flinch.’” When the dependency investigator inquired further, Marcus said, “‘I think I lied. I think I can’t remember now. I have to pretend I’m on my mom’s side but I’m on both sides.’”

Marcus told the dependency investigator as to Father, “‘You know he says he’s going to kill us. . . . I think it’s because my mom kicked him out. Wait, can you not tell my mom? Don’t tell my mom what I said.’” Then Marcus said, “‘[T]hey were fighting and then my dad left. Dad punched my mom in the eye and my mom hit my dad with her hand.’” When asked when it happened, Marcus replied, “‘One thousand years ago I had told him not to leave but he did the opposite and he got out of here.’” Marcus added, “‘I don’t really know about their fights. My mom cracked my dad’s head with her phone.’” Marcus denied being scared of Mother, but he said as to Father, “‘My dad is going to kill us. I’m scared to die.’” Marcus continued, “‘My mom would hit my dad like she would hit me.’”

Marcus talked to another social worker about his parents’ domestic violence. Father yelled he was going to shoot everyone in the house. Father then punched Mother in her right eyebrow causing bleeding; Mother punched Father back. On another occasion Marcus was in the car with his parents when Mother punched Father in the face because he did not want to spend the night at the house. Marcus repeated to this social worker that Mother “‘cracked [his] dad’s skull and there was blood everywhere in the bathroom!’”

Vanessa told the dependency investigator that in November 2020 Mother and Father were arguing in Vanessa’s front yard and “‘causing commotion.’” Marcus told Vanessa, “‘My daddy is bleeding. My mom hit him in the head.’” When Mother came inside the house, Marcus told Mother, “‘Don’t hurt my daddy.’”

In the March 17, 2021 last minute information for the court report, the Department recommended Marcus be detained because Mother failed to participate in wraparound services and the investigations were continuing of the reports of Mother’s and Father’s physical abuse of Marcus. In addition, Mother had lied about her true name (Tanasha E.) and date of birth. Tanasha had a criminal history from Nevada, including a 2006 conviction for battery and a 2007 conviction for battery/domestic violence. Further, Tanasha had two other children: L.T., born in 2012, who was declared a dependent of the court and then adopted; and M.N., born in 2010, whose voluntary case was closed with M.N. placed with her Father.[url=#_ftn4][4][/url] The report also indicated Mother often left Marcus with Vanessa for days at a time because Mother was “unable to deal with the child’s negative behaviors.” Mother told Vanessa that the pending dependency case had been transferred to Las Vegas, Nevada. She also told the wraparound team that she planned to move to Las Vegas with Marcus on March 18.

On March 17, 2021 the juvenile court detained Marcus from Mother and Father and granted family reunification services to the parents. The court granted Mother and Father monitored visits for a minimum of three times per week for three hours each visit.

[*][i]The First Amended Petition[/i] [/numbered]

On April 1, 2021 the Department filed a first amended petition adding two counts under section 300, subdivision (b)(1). Count b-2 alleged Mother had a history of physically abusing Marcus, including hitting him on various parts of the body and on one occasion punching Marcus’s stomach after his bath. Count b‑3 alleged Mother and Father had “an unresolved history of engaging in physical altercations” in Marcus’s presence. In November 2020 Mother hit Father in the head with a metal can causing his head to bleed, and Father repeatedly struck Mother with his hands.

[*][i]The Jurisdiction and Disposition Hearing[/i] [/numbered]

At the June 3, 2021 jurisdiction and disposition hearing, Mother urged the court to dismiss the petition, arguing as to count b-1 that Mother was simply seeking assistance with Marcus, and she later changed her mind; as to count b-2, Mother denied ever touching Marcus, and Marcus later recanted as to Mother hitting him; and as to count b-3, Mother no longer had contact with Father and obtained a restraining order against him, and therefore Marcus was not at a present risk of harm.

The Department and Marcus’s attorney argued the court should sustain all three counts. Marcus’s attorney asserted that Marcus reported on February 4, 2021 that Mother had whipped him with a belt, which he repeated during his forensic interviews in March 2021. Although Marcus later recanted and said he had been lying, he also told the interviewer Mother told him to lie and pointed to his arms, legs, and torso as areas where he had been hit.

The juvenile court sustained the amended allegations under section 300, subdivision (b)(1). The court found as to count b-1 that Mother was unable to provide Marcus with care and supervision because she requested his removal from her home and care on December 24, 2020.

As to the physical abuse allegations in count b-2, the juvenile court stated, “[W]hen the interviewer asked the child, is there anything your mother wanted you to tell me? And the child said without hesitation, my mom told me to say that I was lying. . . . And then the interviewer asked him what did he tell the social workers? Did he tell the social workers a lie or the truth? He said it was the truth. He reiterated again that initial statement that he made on February 4th, 2021, that his mother whipped him with a belt. He was able to articulate with clarity where on his body, his arms and his legs. It’s for those reasons that the court finds [count] b-2 to be true by a preponderance of the evidence.”

With respect to the domestic violence allegations in count b-3, the juvenile court stated, “Based on [M]other’s statements of recent domestic violence ongoing between [M]other and [F]ather, [M]other sought a restraining order. And [M]other was granted a restraining order based on the domestic violence inflicted [by] [F]ather towards her in May of 2021, just a couple of days ago. And to say that there’s no current risk of harm, and want to ask for this count to be dismissed, it is very much inconsistent with what was previously requested and granted. In addition, Mother’s statement—Mother’s admissions regarding the ongoing domestic violence between [M]other and [F]ather, and the child Marcus’s statements, the most credible statement is he stated that he does not want to die. He’s seen Mother and Father inflict domestic violence upon each other. He’s seen his mother hit his father, he indicated like she hits me, and he’s seen his father hit his mother. So it’s for those reasons, but not limited thereto, the court finds this count to be true by a preponderance of the evidence and the petition is sustained.”

For disposition, Mother requested a home-of-parent order because “there are reasonable means to protect the child without further removal.” Mother’s attorney argued Marcus could be released to Mother with “wraparound and/or family preservation” services with continued supervision by the Department to “ensure the child’s safety.” Further, Mother “object[ed] to the case plan in having to participate in parenting class, individual counseling and domestic violence support group, as she has already participated in programs in the prior case that did recently close.” The Department and Marcus’s attorney argued that Marcus should be removed from Mother’s custody with monitored visitation.

After hearing argument from the attorneys, the juvenile court incorporated the evidence and findings from the earlier jurisdiction hearing. The court declared Marcus a dependent of the court and removed him from Mother’s and Father’s physical custody. The court stated, “The court finds by clear and convincing evidence pursuant to Welfare and Institutions Code [section] 361, subsection (a), that there’s a substantial danger to the physical health, safety, protection and or emotional well-being of the child if the child were returned home. There are no reasonable means by which the child’s physical health can be protected without removing the child from his parents’ physical custody.”[url=#_ftn5][5][/url] The court ordered Mother to complete an anger management course, a domestic violence support group course, and individual counseling with a licensed therapist to address parenting skills and case issues. The court also ordered wraparound services for Mother and Marcus and family reunification services for the parents. The court granted Mother five monitored visits per week for a minimum of two hours each visit. The court ordered Father to participate in random or on demand consecutive drug tests, a six-month drug and alcohol program with aftercare, a 52-week domestic violence program, parenting classes, and individual counseling with a licensed therapist to address case issues. The court granted Father monitored visits for a minimum of three times per week for three hours each visit.

Mother timely appealed.[url=#_ftn6][6][/url]

[*][i]Substantial Evidence Supports the Jurisdiction Finding of Physical Abuse Under Section 300, Subdivision (b)(1)[/i] [numbered] [*][i]Governing law and standard of review [/i] [/numbered] [/numbered]

The juvenile court has jurisdiction over a child if the Department establishes by a preponderance of the evidence that an allegation made pursuant to section 300 is true. (§ 355, subd. (a); [i]In re I.J. [/i](2013) 56 Cal.4th 766, 773.) Section 300, subdivision (b)(1), allows the juvenile court to assume jurisdiction when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of the child’s parent or guardian to adequately supervise or protect the child . . . or by the willful or negligent failure of the parent to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.”

“A jurisdiction finding under section 300, subdivision (b)(1), requires the Department to prove three elements: (1) the parent’s or guardian’s neglectful conduct or failure or inability to protect the child; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness.” ([i]In re Cole L. [/i](2021) 70 Cal.App.5th 591, 601 ([i]Cole L.[/i]); accord, [i]In re L.W.[/i] (2019) 32 Cal.App.5th 840, 848; see [i]In re R.T.[/i] (2017) 3 Cal.5th 622, 624 [“section 300(b)(1) authorizes dependency jurisdiction without a finding that a parent is at fault or blameworthy for her failure or inability to supervise or protect her child”].) “Although section 300 requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child.” ([i]Cole L.[/i], at pp. 601-602; accord,[i] In re L.O.[/i], [i]supra[/i], 67 Cal.App.5th at p. 238 [“‘Although there must be a present risk of harm to the minor, the juvenile court may consider past events to determine whether the child is presently in need of juvenile court protection.’”].) “A parent’s ‘“[p]ast conduct may be probative of current conditions” if there is reason to believe that the conduct will continue.’” ([i]Cole L.[/i], at p. 602; accord, [i]In re J.A. [/i](2020) 47 Cal.App.5th 1036, 1048.)

We review the juvenile court’s jurisdiction findings for substantial evidence in light of the whole record. ([i]In re I.C. [/i](2018) 4 Cal.5th 869, 892 [“the evidence supporting the jurisdictional findings must be considered ‘“in the light of the [i]whole record[/i]”’ ‘to determine whether it discloses substantial evidence’”]; [i]In re R.T.[/i], [i]supra[/i], 3 Cal.5th at p. 633 [“‘In reviewing the jurisdictional findings and disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them.’”].) Substantial evidence is “evidence which is reasonable, credible, and of solid value.” ([i]In re I.C., [/i]at p. 892; accord,[i] In re Cole L.[/i], [i]supra[/i], 70 Cal.App.5th at p. 602.) “‘[W]e draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.’” ([i]In re R.T.[/i], at p. 633; accord, [i]In re I.J., supra[/i], 56 Cal.4th at p. 773; [i]Cole L.[/i], at p. 602 [“while substantial evidence may consist of inferences, any inferences must rest on the evidence; inferences based on speculation or conjecture cannot support a finding”].) “The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or orders.” ([i]In re E.E. [/i](2020) 49 Cal.App.5th 195, 206; accord, [i]In re D.B.[/i] (2018) 26 Cal.App.5th 320, 328-329.)

[*][i]Substantial evidence supports the juvenile court’s jurisdiction findings[/i] [/numbered] [/numbered]

Mother contends there is insufficient evidence to support the jurisdiction finding under section 300, subdivision (b)(1), that she physically abused Marcus or there was a substantial risk she might abuse him.[url=#_ftn7][7][/url] Mother points to her denial that she ever hit Marcus with a belt, and the inconsistency of Marcus’s statements. Mother also asserts it is not “plausible” she would abuse Marcus given her fear the Department would take him away. Further, “Marcus would have likely had bruising, marks, or some credible recollection of when the abuse occurred.”

Substantial evidence supports the juvenile court’s finding that Mother physically abused Marcus. In a February 4, 2021 interview, six-year-old Marcus told the social worker, “‘I get whooped. My mom will whip me with a belt.’” He added that Mother hit him all over his body. Marcus recanted during his February 17 interview, but during the March 3 forensic examination Marcus stated, “‘My mom told me to say I was lying.’” And Marcus said he told the truth to the social worker that Mother “‘worked [him] with the belt, and it hurt.’” Marcus again indicated Mother hit his arms, legs, and torso. Later in March Marcus told the dependency investigator he felt scared when Mother hit him. He repeated that Mother hit him with a belt all over his body, demonstrating by punching his chest, stomach, legs, and arms. Marcus then recanted (saying “‘she never hit me’”), but when the dependency investigator inquired further, he responded, “‘I think I lied. I think I can’t remember now. I have to pretend I’m on my mom’s side but I’m on both sides.’”

Although the forensic examinations of Marcus did not reveal marks or bruises indicating physical abuse, the juvenile court found Marcus’s account of physical abuse credible, observing Marcus “said without hesitation” that Mother told him to lie, and he said to the forensic examiners that he had told the social workers the truth. “‘Evidence from a single witness, even a party, can be sufficient to support the trial court’s findings.’” ([i]In re D.C.[/i] (2015) 243 Cal.App.4th 41, 52]; accord, [i]In re S.A. [/i](2010) 182 Cal.App.4th 1128, 1148.) Further, Mother’s credibility was questionable in light of her lying to the Department about her identity and her prior child welfare history involving her two other children. Vanessa described Mother as “‘a habitual liar.’”

In addition, Marcus was at risk of future physical abuse. Marcus stated just three months before the jurisdiction hearing (in March 2021) that Mother hit him with a belt. Mother repeatedly denied she had ever hit Marcus with a belt or otherwise physically disciplined him. Mother continued to claim the prior dependency case was based on false allegations of physical abuse despite the report from a third-party observer that Mother had hit Marcus. Moreover, Vanessa stated she had seen Mother hit Marcus when he was younger, contrary to Mother’s denial of ever hitting Marcus. Vanessa also reported Marcus told her, “‘I’m scared to go with my mom.’” Mother’s denial of abuse made it unlikely she would change her behavior, especially given that she had difficulty controlling Marcus. (See [i]In re D.B. [/i](2020) 48 Cal.App.5th 613, 622 [“‘One cannot correct a problem one fails to acknowledge.’”]; [i]In re A.F.[/i] (2016) 3 Cal.App.5th 283, 293 [“In light of mother’s failure to recognize the risks to which she was exposing the minor, there was no reason to believe the conditions would not persist should the minor remain in her home.”]; [i]In re Gabriel K. [/i](2012) 203 Cal.App.4th 188, 197.)

[*][i]Substantial Evidence Supports the Removal Order [/i] [numbered] [*][i]Governing law and standard of review [/i] [/numbered] [/numbered]

“‘At the dispositional hearing, a dependent child may not be taken from the physical custody of the parent under section 361 unless the court finds there is clear and convincing evidence there is or would be a substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being if returned home, and that there are no reasonable means to protect the child’s physical health without removing the child.’” ([i]In re D.P.[/i] (2020) 44 Cal.App.5th 1058, 1065; accord, [i]In re G.C.[/i] (2020) 48 Cal.App.5th 257, 264-265; see § 361, subd. (c)(1).) The juvenile court must determine “whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home” and “shall state the facts on which the decision to remove the minor is based.” (§ 361, subd. (e).)

“In determining whether a child may be safely maintained in the parent’s physical custody, the juvenile court may consider the parent’s past conduct and current circumstances, and the parent’s response to the conditions that gave rise to juvenile court intervention.” ([i]In re D.B., [/i](2018) 26 Cal.App.5th 320, 332; accord, [i]In re I.R. [/i](2021) 61 Cal.App.5th 510, 520.) “A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] ‘The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.’” ([i]In re N.M.[/i] (2011) 197 Cal.App.4th 159, 169-170; accord, [i]In re V.L. [/i](2020) 54 Cal.App.5th 147, 154.)

“When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” ([i]Conservatorship of O.B.[/i] (2020) 9 Cal.5th 989, 1011-1012; accord, [i]In re V.L., supra[/i], 54 Cal.App.5th at p. 155 [“[i]O.B.[/i] is controlling in dependency cases.”].) We review the entire record to determine whether the removal order is supported by substantial evidence. ([i]V.L.[/i], at p. 155; [i]In re I.R., supra[/i], 61 Cal.App.5th at p. 520.)

[*][i]Substantial evidence supports the juvenile court’s removal order, and any error in failing to make findings on the record was harmless[/i] [/numbered] [/numbered]

Mother contends there is not substantial evidence to support removal of Marcus from her physical custody and there were reasonable alternatives to removal. However, the same evidence that supports the jurisdiction findings provides substantial evidence to support the juvenile court’s order. As discussed, there was substantial evidence Mother hit Marcus with a belt all over his body, and Marcus recanted because Mother told him to lie. Mother denied she ever hit Marcus, but she lied about her identity, the prior child welfare history involving her two other children, and her prior abuse of Marcus. Mother’s denial of physical abuse placed Marcus at a substantial risk of future harm if released to Mother because she did not accept that she posed a risk to him. And there was a substantial risk Mother might abscond with Marcus if he were returned to her care because Mother told Vanessa and the wraparound team that she planned to move with Marcus to Las Vegas.

Although Mother suggests there were less drastic alternatives to removal, including unannounced visits, in light of the risk of physical violence to Marcus and Mother’s denial of past abuse, those measures would not have prevented Mother from harming Marcus in the first instance. Further, Mother failed to participate in wraparound services, and despite her completion of parenting and anger management classes in the 2018 dependency proceeding, the physical abuse continued.

Mother also contends the juvenile court failed to state its reasons for removal or what protective measures the court considered in deciding Marcus could not be returned to Mother. The juvenile court incorporated its jurisdiction findings on physical abuse into its findings supporting the disposition order, but it failed to address specifically why Marcus needed to be removed and why other protective measures would be inadequate. This was error. (See § 361, subd. (e) [“The court shall state the facts on which the decision to remove the minor is based.”].) The court’s boilerplate findings that there was clear and convincing evidence of a substantial danger to Marcus’s physical health if he were returned home and no reasonable means to protect Marcus absent removal are not a sufficient substitute for the juvenile court making factual findings on the record tailored to the case.

However, the failure of the juvenile court to state its factual findings was harmless error because given the evidence of Mother’s continuing abuse of Marcus and adamant denial that the abuse had occurred, it is not reasonably probable had the court expressly made findings under section 361, subdivision (e), its findings would have been in favor of Mother’s continued parental custody. ([i]In re L.O., supra[/i],[i] [/i]67 Cal.App.5th at p. 247 [“‘[C]ases involving a court’s obligation to make findings regarding a minor’s change of custody or commitment have held the failure to do so will be deemed harmless where ‘it is not reasonably probable such finding, if made, would have been in favor of continued parental custody.’”]; [i]In re V.L., supra[/i], 54 Cal.App.5th at p. 159 [“because the last incident of domestic violence involving father was so dangerous and troubling, it is not reasonably probable that the juvenile court would have reached a different conclusion if it stated the facts it relied upon”]; [i]In re Diamond H.[/i] (2000) 82 Cal.App.4th 1127, 1137 [“Although the court did not state a factual basis for its removal order, any error is harmless because it is not reasonably probable such findings, if made, would have been in favor of continued parental custody.”], disapproved on another ground in [i]Renee J. v. Superior Court[/i] (2001) 26 Cal.4th 735, 748, fn. 6; see Cal. Const., art. VI, § 13 [“No judgment shall be set aside . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”].)

The jurisdiction findings and disposition order are affirmed.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

[url=#_ftnref1][1][/url] Further undesignated statutory references are to the Welfare and Institutions Code.

[url=#_ftnref2][2][/url] Father stated he was arrested and convicted of “receiving stolen property” and sentenced to probation.

[url=#_ftnref3][3][/url] On May 12, 2021 the juvenile court granted Mother’s request for a three-year restraining order to protect her and Marcus from Father.

[url=#_ftnref4][4][/url] Vanessa confirmed Mother’s birth name was Tanasha E.; Mother was born in 1981; and Mother had two other children before Marcus. In December 2018 Mother legally changed her name to N.C. and successfully petitioned the court to establish her date of birth was in 1994. Mother claimed Tanasha is her sister. Vanessa opined Mother was “‘a habitual liar.’” Mother sent the dependency investigator a series of text messages accusing her of being a racist, but conceding Mother’s different identity, explaining, “‘I don’t understand how I was being deceitful when I’ve disclosed the mistake to [you;] you’re a racist . . . please seek therapy.’”

[url=#_ftnref5][5][/url] During the hearing, Mother interrupted the proceedings multiple times with angry outbursts. Following the juvenile court’s issuance of the removal order, the court removed Mother from the proceeding, explaining, “The court has warned her several times and Mother’s interrupted the proceedings about seven plus times. She interrupted during minor’s counsel’s argument. She interrupted the court several times. And it’s for those reasons that she has been removed.”

[url=#_ftnref6][6][/url] Father does not appeal from the jurisdiction finding against him sustaining the allegation in count b-3 that he and Mother “engaged in physical altercations” in Marcus’s presence. “‘[A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring [the minor] within one of the statutory definitions of a dependent.’” ([i]In re Briana V.[/i] (2015) 236 Cal.App.4th 297, 308; accord, [i]In re L.O. [/i](2021) 67 Cal.App.5th 227, 237.) “However, we generally will exercise our discretion and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as a basis for dispositional orders that are also challenged on appeal [citationl; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) ‘could have other consequences for [the appellant], beyond jurisdiction.’” ([i]In re Drake M.[/i] (2012) 211 Cal.App.4th 754, 762-763; accord, [i]In re[/i] [i]L.O.[/i], at p. 237.) We exercise our discretion to consider the jurisdiction finding against Mother for physical abuse because it serves as a basis for the removal order that Mother also challenges on appeal.

[url=#_ftnref7][7][/url] Mother does not argue the juvenile court erred in assuming jurisdiction under section 300, subdivision (b)(1), rather than section 300, subdivision (a), based on Mother’s physical abuse of Marcus.

Escobar-Lopez was charged by information with a single count of continuous sexual abuse of a child, J.V. (Pen. Code,[url=#_ftn3][3][/url] § 288.5, subd. (a) (section 288.5(a)).) J.V. was born in May 2005, and lived with her grandparents in Mexico until she was eight years old. J.V. then moved to the United States to live with her mother, Nancy V. Her mother also resided with Escobar-Lopez, his children, J.V.’s older brother, and J.V.’s younger half-sister (the biological daughter of Nancy V. and Escobar-Lopez). Nancy V. and Escobar-Lopez subsequently married.

J.V. testified at trial that Escobar-Lopez first started touching her legs and breasts when she was eight years old. This happened “probably about twice.” When she turned 10 years old, it began happening “more times.” Escobar-Lopez would take J.V. into his room and touch his genitals to hers. He also put his mouth on her genitals. This would happen every time her mother went to work: “Sometimes all the week. [¶] . . . [¶] Almost all month.”

The last incident occurred on September 22, 2016, when she was 11 years old. Escobar-Lopez came into J.V.’s bedroom around 4:00 a.m., began touching her body, and put his mouth on her breasts. J.V. went to check if her mom’s car was outside and returned to her room because she thought Escobar-Lopez had left. Escobar-Lopez then took her to the bed and was touching her leg when her mother came in and saw. J.V. heard her mother crying in the hallway. J.V. did not get along with Nancy V., and never felt love from her or for her. After this last incident, J.V. thought about going back to live with her grandparents but did not accuse Escobar-Lopez to do so.

Nancy V. testified that she left the house on September 22, 2016, at 3:30 a.m., to help distribute religious materials but returned shortly thereafter because she was unable to connect with her fellow church member as planned. She discovered Escobar-Lopez in J.V.’s bedroom, touching J.V.’s leg while also touching his genitals. Escobar-Lopez told Nancy V. that he was waking J.V. to help because their other daughter (approximately three years old at the time) was crying. Nancy V. did not hear any crying. Nancy V. agreed that she did not have a good relationship with J.V. by the time J.V. was nine years old. Nancy V. would call J.V. names and pull her hair when she got mad at J.V.

Escobar-Lopez testified that he was trying to wake J.V. on the morning of September 22, 2016, because his daughter was crying and he wanted to ask J.V. if she knew where Nancy V. was. Escobar-Lopez touched J.V.’s shoulder so that she would wake up, but denied ever molesting her or touching himself.

The jury found Escobar-Lopez guilty as charged. Escobar-Lopez was sentenced to 12 years in prison.

[*][i]Amendment of Information[/i]

Escobar-Lopez argues that his due process rights were violated when the trial court permitted amendment of the information (expanding the time period of the alleged conduct underlying his section 288.5(a) charge) after he had waived his right to a preliminary hearing.

In 2016, Escobar-Lopez was charged by complaint with continuous sexual abuse of J.V. occurring “on or about and between May 7, 2015 and September 22, 2016.” In 2017, Escobar-Lopez waived his right to a preliminary hearing and an initial information was filed alleging conduct across the same time period. The matter was assigned for trial in 2018. At that time, the defense moved in limine to exclude evidence of uncharged crimes. The prosecutor argued that J.V. had stated her abuse began when she was eight years old—two years before the time period charged in the information. The court denied the motion to exclude this evidence, but indicated it would provide a limiting instruction. The trial was continued, however, upon the discovery of new evidence regarding a recorded voicemail from Nancy V.

The case was reset for trial in 2019. Before trial, the prosecutor moved to amend the information to modify the beginning date of the alleged conduct from May 7, 2015, to May 7, 2013. Defense counsel opposed amendment on due process grounds. The trial court permitted the amendment, which was made by interlineation.

[*]Analysis

Section 1009 provides the general framework for amendment of criminal pleadings. ([i]People v. Winters[/i] (1990) 221 Cal.App.3d 997, 1005.) It authorizes the court in which an action is pending to permit amendment of an information “for any defect or insufficiency, at any stage of the proceedings, or if the defect in an indictment or information be one that cannot be remedied by amendment, may order the case submitted to the same or another grand jury, or a new information to be filed.” (§ 1009.) It also provides, however, that “[a]n 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.” ([i]Ibid[/i].) In other words, section 1009 “authorizes amendment of an information at any stage of the proceedings provided the amendment does not [i]change the offense charged[/i] in the original information to one not shown by the evidence taken at the preliminary examination.” ([i]Winters[/i], at p. 1005, emphasis added.) “If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted. The questions of whether the prosecution should be permitted to amend the information and whether continuance in a given case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of discretion.” ([i]Ibid[/i].)

Here, Escobar-Lopez argues that the trial court abused its discretion because the amendment changing the beginning date from 2015 to 2013 constituted a “significant variance” from the initial information. To support this position, Escobar-Lopez relies on [i]Winters[/i], [i]People v. Mora-Duran[/i] (2020) 45 Cal.App.5th 589, and [i]People v. Peyton[/i] (2009) 176 Cal.App.4th 642 ([i]Peyton[/i]). His reliance on those cases is misplaced.

In [i]Winters[/i], the defendant waived his right to a preliminary hearing and was charged with possession of methamphetamine. ([i]People v.[/i] [i]Winters[/i], [i]supra[/i], 221 Cal.App.3d at p. 999.) During trial, the court permitted amendment of the information to allege a second count of transportation of methamphetamine. ([i]Id.[/i] at pp. 1001–1002.) [i]Winters[/i] reversed the defendant’s conviction on this second count, concluding that an amendment adding a new count was improper under section 1009. ([i]Winters[/i], at p. 1008.) Here, unlike [i]Winters[/i], the amendment did not add any new crime. Escobar-Lopez was still charged with a single count of continuous sexual abuse under section 288.5(a).

In [i]Mora-Duran[/i], the defendant was originally charged with felony marijuana cultivation, conspiracy to commit felony marijuana cultivation, and possession of marijuana for sale. ([i]People v.[/i] [i]Mora-Duran[/i], [i]supra[/i], 45 Cal.App.5th at p. 592.) After the defendant waived the preliminary hearing, the prosecution filed an amended information that modified the felony marijuana cultivation count following a statutory amendment that added new elements to the crime, including the violation of certain environmental protection laws. ([i]Ibid.[/i]) [i]Mora-Duran[/i] reversed the defendant’s conviction on this count, concluding that the amendment presented a “moving target” by expanding the scope of the defense. ([i]Id.[/i] at p. 600.) For example, the defendant was now required to respond to “disparate and esoteric considerations” regarding water contamination. ([i]Ibid.[/i]) Here, unlike [i]Mora-Duran[/i], the amendment did not change the nature of the offense charged: continuous sexual abuse against J.V. Nor did it require Escobar-Lopez to expand the scope of his defense, as he continued to maintain that J.V. and her mother were lying and the molestation—regardless of its alleged start date—never occurred.

Finally, in [i]Peyton[/i], the defendant waived his right to a preliminary hearing and was charged with four counts of sexual assault of a child (three counts of oral copulation and one count of sexual penetration), based on conduct alleged to have occurred in 2005. ([i]Peyton[/i], [i]supra[/i], 176 Cal.App.4th at p. 650.) During trial, the court permitted amendment of the information to add a new fifth count of aggravated lewd conduct, modify two of the oral copulation counts to sexual penetration counts, and change the date of the underlying acts to 2004. ([i]Id.[/i] at pp. 649–651.)[i] Peyton[/i] reversed the conviction on the fifth count as an improper additional charge, but concluded that amendment of the other counts did not violate section 1009 because it did not create “significant variance” from the original counts. ([i]Peyton[/i], at pp. 646, 660.) [i]Peyton[/i] explained: “The operative pleading under which defendant was convicted did not charge him with violating a different Penal Code section from that alleged in the amended complaint. Both pleadings were based on the same course of conduct which occurred over an extremely limited time period and involved the same victim. Both pleadings dealt with the same underlying acts, oral copulation and sexual penetration. Defendant was not presented with a moving target; he was fully aware of what he had to defend against. Additionally, the punishment for the crimes charged in the amended complaint and the second amended information were identical. The substantial rights of defendant were simply not implicated.” ([i]Id.[/i] at p. 660.) [i]Peyton [/i]also reasoned that the precise date of the conduct need not be stated in the accusatory pleading where the date is immaterial to an offense, and the defendant had not shown he was prejudiced by the variance in the date because he denied engaging in any illegal conduct whatsoever. ([i]Id.[/i] at pp. 659–660.)

So too here. The amendment did not charge Escobar-Lopez under a different Penal Code section, was based on the same course of conduct, and involved the same victim. The record also suggests Escobar-Lopez was fully aware of the allegations against which he had to defend. Indeed, eight months before the amendment, defense counsel sought to exclude any evidence of alleged molestation before May 2015. Enlarging the time period back to May 2013 did not present Escobar-Lopez with a “moving target” or impinge on his ability to prepare his defense. ([i]Peyton[/i], [i]supra[/i], 176 Cal.App.4th at p. 660.)

Nor are we persuaded by Escobar-Lopez’s argument that the time period was material here and he suffered prejudice as a result of the amendment. Escobar-Lopez contends that the prosecution had to expand the time period (to include the two alleged incidents when J.V. was eight years old plus the September 22, 2016 incident) in order to prove three total acts of substantial sexual conduct as required under section 288.5(a). This contention is belied by the record. J.V. testified that when she was 10 years old, Escobar-Lopez would molest her whenever her mother went to work, and that it happened “more times” than when she was eight years old. She also testified to at least two types of specific conduct that occurred during this period: Escobar-Lopez would touch his genitals to hers, and would also put his mouth on her genitals. J.V. thus testified about repeated conduct that, in addition to the September 22, 2016 incident, occurred within the time period alleged in the initial information.

In sum, we conclude that the trial court did not abuse its discretion in permitting amendment of the information.

[*][i]Evidence and Examination Regarding Mother’s Infidelity[/i]

Escobar-Lopez argues that the trial court abused its discretion in excluding evidence and examination regarding Nancy V.’s purported infidelity during their relationship. He contends that these rulings prejudiced his ability to (1) attack Nancy V.’s credibility, show her bias, and identify her motive to lie; and (2) demonstrate that J.V. may have “weaponized” her own awareness of the infidelity to create conflict between Escobar-Lopez and Nancy V., and that J.V. may have fabricated her accusations against him to “escape from a household where she was unhappy and return to her beloved grandparents in Mexico.”

Before trial, the prosecutor moved in limine to exclude “character” evidence regarding Nancy V., including specific allegations of her infidelity. The trial court ruled that it would permit evidence regarding the relationship between Escobar-Lopez and Nancy V. and whether he had confronted her about infidelity, but not into the “specifics of affairs.” It continued: “We’re not going to go into that because under [Evidence Code section] 352, I’m finding that the probative value will be substantially outweighed by not only the prejudicial effect, but the potential for confusion and, certainly, the undue consumption of time.”

Nancy V. testified that her relationship with Escobar-Lopez was “[v]ery good” at the time of the September 22, 2016 incident, and that he had never confronted her about seeing or dating other men. Defense counsel then sought to introduce “flirtatious” messages between Nancy V. and other individuals, arguing they were relevant based on her prior testimony. The trial court held a hearing under Evidence Code section 402 on the issue. It stated: “My biggest concern with this entire issue is exactly what is happening with this hearing. There is context to all of this. We don’t know when these exactly were sent. We know that they were sent around the time that the alleged conduct was observed by [Nancy V.]” There was no information indicating “Escobar-Lopez was aware of what, if anything, she was doing discretely through Messenger and text messages and things of that nature.” The court excluded the messages, finding they were “not relevant to the point that any probative value is not substantially outweighed by the prejudicial effect, including the confusion that it may cause for the jury, including the undue consumption of time that it will require.”

J.V. testified that Escobar-Lopez and her mother would have big fights. When asked what they would fight about, the prosecutor objected on relevance. The trial court held another Evidence Code section 402 hearing. It ruled that J.V. could be questioned as to whether Escobar-Lopez and her mother fought over infidelity, but not about “specific instances” of infidelity. The court noted: “This is the rabbit hole that I’ve been trying to avoid and I continue to think going down this rabbit hole is right [[i]sic[/i]] with the possibility to confuse the factfinder, to take significant amounts of time, which we are doing. This is exactly the reason I’ve been trying to avoid going down this road, is [[i]sic[/i]] because we continue to take time addressing this issue over, and over, and over again.” J.V. then testified that Escobar-Lopez and her mother would fight about cheating.

Escobar-Lopez testified that he and Nancy V. started having problems in 2013 because of infidelity. When asked about what information Escobar-Lopez had about Nancy V.’s infidelity, the prosecutor objected on relevance. Outside of the presence of the jury, the court indicated it would continue to abide by its prior ruling to permit evidence regarding the relationship and Escobar-Lopez’s knowledge of infidelity, but limit “specific detailed questions about specific acts or circumstances of conduct.” Escobar-Lopez then testified that he had gained information about Nancy V.’s affairs “from the messages and from people that began to tell me things.” In 2013, Escobar-Lopez was told by a friend that she had seen another man coming out of Escobar-Lopez’s room. He was also confronted by the wife of a man dating Nancy V. When asked about other evidence, Escobar-Lopez responded: “Yes. Some Facebook messages that I found.” The prosecutor objected, and the court struck the answer with the exception of the word “yes.”

Escobar-Lopez also testified that J.V. had told him about her mother’s infidelity, which caused problems between J.V. and her mother. Escobar-Lopez, however, had caught Nancy V. telling J.V. to lie about the affairs, and J.V. admitted she had lied. Escobar-Lopez fought with Nancy V. many times about infidelity, including after his discovery of her Facebook messages. Nancy V. told Escobar-Lopez that she was unwilling to stop the affairs.

Olivia Vicente testified that she had lived next to Escobar-Lopez and Nancy V., and they would fight often over Nancy V. having affairs. Escobar-Lopez’s brother also testified that Escobar-Lopez and Nancy V. would fight about infidelity.

[*]Analysis

The federal Constitution guarantees criminal defendants “ ‘ “a meaningful opportunity to present a complete defense.” ’ ” ([i]Nevada v. Jackson[/i] (2013) 569 U.S. 505, 509.) While this guarantee “prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote,” a trial court is still permitted to exclude evidence under well-established rules of evidence. ([i]Holmes v. South Carolina[/i] (2006) 547 U.S. 319, 326.) Evidence Code section 352 vests the trial court with discretion to exclude otherwise relevant evidence if “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” We review such rulings for abuse of discretion. ([i]People v. Jones[/i] (2017) 3 Cal.5th 583, 609 [“ ‘We will not reverse a court’s ruling on such matters unless it is shown “ ‘the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice’ ” ’ ”].)

The constitutional right of confrontation “includes the right to cross-examine adverse witnesses on matters reflecting on their credibility.” ([i]People v. Quartermain[/i] (1997) 16 Cal.4th 600, 623.) The confrontation clause, however, guarantees only “an [i]opportunity[/i] for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” ([i]Delaware v. Fensterer[/i] (1985) 474 U.S. 15, 20.) Trial courts retain wide latitude to impose reasonable limits on cross-examination where, for example, the testimony is only marginally relevant. ([i]Delaware v. Van Arsdall[/i] (1986) 475 U.S. 673, 679.) A trial court’s limitation on cross-examination pertaining to the credibility of a witness violates the confrontation clause only when “a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted.” ([i]Quartermain[/i], [i]supra[/i], 16 Cal.4th at p. 624.)

Here, Escobar-Lopez identifies three evidentiary rulings that he argues precluded his right to present a defense and resulted in prejudice: (1) the exclusion of Facebook and text messages between Nancy V. and other individuals; (2) the limitation of J.V.’s cross-examination regarding the fights between Escobar-Lopez and Nancy V., as well as J.V.’s revelations to Escobar-Lopez about infidelity she had witnessed; and (3) the limitation of Escobar-Lopez’s testimony regarding the “facts” of the infidelity.

What this argument overlooks, in our view, is that the trial court permitted substantial evidence on the issue of Nancy V.’s purported infidelity. As described above, Escobar-Lopez testified at length regarding this infidelity, including the bases of his knowledge of her affairs as well as the effect it had on their marriage and Nancy V.’s relationship with J.V. It was the repercussions of this infidelity, not the specific details of the claimed infidelity itself, that were relevant to understanding Nancy V. or J.V.’s alleged bias or motive to lie. (See [i]People v. Bautista[/i] (2008) 163 Cal.App.4th 762, 783 [rejecting claim that defendant was unable to elicit source of resentment toward him absent evidence regarding victim’s prior conduct].) The specifics of the affairs were, at best, tangential. (See[i] ibid.[/i]) We thus agree with the trial court that the presentation of such evidence would have necessitated an undue consumption of time, and created a substantial danger of undue prejudice and jury confusion.

Moreover, despite Escobar-Lopez’s contention to the contrary, the trial court permitted evidence that corroborated his testimony (and discredited Nancy V.’s testimony) on the topic. J.V. testified that her mother and Escobar-Lopez would fight about cheating. Two other witnesses, Vicente and Escobar-Lopez’s brother, also testified about the fighting between Nancy V. and Escobar-Lopez based on her infidelity. Through this evidence, Escobar-Lopez was able to attack Nancy V.’s credibility and support his own. (See Evid. Code, § 780; [i]People v. Jones[/i] (1984) 155 Cal.App.3d 153, 182.) A reasonable jury would not have received a significantly different impression of Nancy V.’s credibility had the trial court permitted further evidence and examination on the topic. ([i]People v. Quartermain[/i], [i]supra[/i], 16 Cal.4th at p. 624.)

In sum, we conclude that the trial court’s evidentiary rulings regarding Nancy V.’s purported infidelity did not constitute an abuse of discretion.

[*][i]No Prosecutorial Misconduct[/i]

Escobar-Lopez argues that the prosecutor committed prejudicial misconduct by arguing facts not in evidence regarding the process by which Nancy V. could have obtained a U visa. He claims the argument “eviscerated” his defense that Nancy V. had orchestrated the false accusations of molestation against Escobar-Lopez to avail herself of the visa program.

Escobar-Lopez testified that, prior to the September 22, 2016 incident, Nancy V. had told him people could gain United States citizenship by asserting child molestation claims. Nancy V. said she was “thinking of accusing [him] of that.”

Nancy V. testified that she had talked with Escobar-Lopez about people fixing citizenship problems by claiming domestic violence. She denied making any such statement regarding child molestation. At the time of trial, Nancy V. was not a legal citizen of the United States and had not applied for any immigration status or benefit.

Amy French, an employee of the Kern County District Attorney’s Office, testified about the process for handling U visa applications. If someone was “helpful during the investigation at some point,” the office would send a certified letter to that effect for the application. When asked whether an individual must apply for a U visa before the case goes to completion, as in a verdict, she responded: “No. They can do it at any point.” When asked whether an individual could apply years after a case goes to trial or reaches a verdict, she responded: “Yes.”

During closing, the prosecutor argued that Nancy V. had not asked for protected status in the three years since the molestation had been reported. Referencing the French testimony, defense counsel argued that an individual who cooperates through an investigation or trial can ask for a U visa. He continued: “So that’s how it’s done, traditionally. Cooperate through trial. Here we are, through trial.” During rebuttal, the prosecutor argued: “For all Ms. French told us, she could have—Nancy could have called my office, convinced us to dismiss the case and still gotten her U visa. The case is over, you can still do it when the case is over. Seems like that’s an easier way to go about this.” Defense counsel objected to the argument as improper. The trial court instructed the jury: “All right. Ladies and gentlemen, you’ve heard the evidence. It will be up to you to decide what the evidence was and what facts are established by that evidence. As you’ve heard me say throughout the course of this trial, nothing the attorneys say is evidence and should not be considered as evidence. Their comments here are based on their perception of the evidence but, ultimately, it is your perception of the evidence that is important.” It then overruled the objection. Outside the presence of the jury, the trial court found there was no prosecutorial misconduct and an “effective and appropriate curative type of instruction” had been provided to the jury.

[*]Analysis

“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” ([i]People v. Morales[/i] (2001) 25 Cal.4th 34, 44 ([i]Morales[/i]).) “At closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom.” ([i]Ibid[/i].) Prosecutorial argument “ ‘ “ ‘may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.’ ” ’ ” ([i]People v. Stanley[/i] (2006) 39 Cal.4th 913, 951.) “Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” ([i]Morales[/i], at p. 44.)

The prosecutor’s rebuttal argument here was a permissible inference drawn from the evidence. ([i]Morales[/i], [i]supra[/i], 25 Cal.4th at p. 44.) French testified that an individual could apply for a U visa “at any point,” including before (or after) the case reaches a verdict. She testified that, as long as the individual had been helpful “at some point,” the district attorney’s office would support the application. The possibility that Nancy V. could have sought dismissal of the case and still obtained a U visa is entirely consistent with this testimony.

The point was also responsive to defense counsel’s own arguments, suggesting that Nancy V. could still apply for her U visa because applicants “traditionally” wait until trial is over. It was permissible for the prosecutor to identify an opposing scenario: that Nancy V. could have sought an end to the case before trial and applied for the U visa at that point. (See [i]People v. Cunningham[/i] (2001) 25 Cal.4th 926, 1027 [hypothetical regarding prison conditions was within permissible limits of rebuttal to defense argument regarding future prison conduct].)

Finally, the alleged misconduct was not prejudicial because the trial court admonished the jury that attorney arguments were not evidence and it was up to them to decide what facts were established by the evidence. ([i]People v. Cunningham[/i], [i]supra[/i], 25 Cal.4th 926 at pp. 1001–1002.) Viewed in this context, there is no reasonable likelihood that the prosecutor’s argument misled the jury in an objectionable fashion. ([i]Morales[/i], [i]supra[/i], 25 Cal.4th at p. 44.) We thus conclude there was no prejudicial prosecutorial misconduct warranting reversal.

The judgment is affirmed.

STREETER, J.

WE CONCUR:

POLLAK, P. J.

BROWN, J.

[url=#_ftnref1][1][/url] A “U visa” is a temporary, nonimmigrant visa that provides legal status for noncitizens who assist in the investigation or prosecution of certain crimes in which they (or their minor children) have been victimized. (See 8 U.S.C. § 1101(a)(15)(U).)

[url=#_ftnref2][2][/url] The following is a brief summary of some of the factual and procedural background in this case, which we set out to provide context to the issues raised on appeal. Additional facts are included in our legal discussion.

[url=#_ftnref3][3][/url] Undesignated statutory references are to the Penal Code.