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The PEOPLE, Plaintiff and Respondent, v. Mark Edwin JONES, Defendant and Appellant.
A jury convicted Mark Edwin Jones on twelve counts of committing lewd and lascivious acts upon children under the age of 14 years (Pen.Code, § 288, subd. (a)) 2 and found the related allegations under sections 1203.066, subdivisions (a)(8) and (a)(9) 3 to be true. Jones was sentenced to prison for 15 years.
Jones makes a multi-faceted attack on the judgment contending there is insufficient evidence to support the convictions, his trial was unfair and that numerous trial and post trial rulings require reversal. We reject most of his arguments, but conclude that he was denied a fair trial on counts 1, 2 and 3 when the court allowed the first amended information to be amended before it was submitted to the jury and denied him the opportunity to further cross-examine the victim. We also conclude there is insufficient evidence to support Jones' convictions on counts 19, 20, 22 and 23. Accordingly, we reverse those counts. In all other respects we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Until his arrest, Jones, a 38 year old former Navy pilot and public school teacher, was a highly respected member of his community. He worked for an aerospace firm where he held top secret security clearance. He had lived in Mira Mesa since 1973, serving as president of a large homeowners association and leading a scout troop at the request of the mother of one of the victims. She and a teacher had urged him to adopt a child as a single parent.
On June 18, 1985, Child Protective Services received a report from a neighbor who suspected Jones was sexually abusing Jones' adopted sons, Sammy and Bobby. The ensuing investigation revealed Jones had also molested two neighbor boys, Andrew and Kenny, before Sammy moved into Jones' home in the late summer of 1983. Bobby had moved in about a month later.
About 7 weeks after receiving the initial report an information was filed charging Jones with 28 counts of lewd and lascivious acts upon a child under the age of 14. This information identified the victim in counts 1 through 3 as Kenny; in counts 4 through 10 as Andrew; and 11 through 18 as Robert (Bobby) and 19 through 28 as Sammy.
The information was amended twice. The first amendment was made on the opening day of trial in January 1986 without objection from defense counsel. The second amendment was on February 18, 1986, after the defense conditionally rested its case over defense counsel's strenuous objection. The difference between the first and second amended informations is reflected on the attached appendix.
Jones successfully moved to dismiss count 8 under section 1118.1. After three days of deliberation, the jury was unable to resolve counts 6, 10, and 16. These counts were later dismissed. As noted earlier the jury convicted Jones on 12 counts and acquitted him on 12 others (see Appendix). The court later denied Jones' post trial motions to recuse the district attorney's office and for a new trial. Jones appeals from the judgment.
II
INTRODUCTION
This case is typical of what is now described as the “resident child molester” case, a term coined to apply to a person who either resides in the same home with the minor or who has unchecked access to the child and repeatedly sexually molests the child over a long period of time. (People v. Atkins (1988) 203 Cal.App.3d 15, 19, fn. 1, 249 Cal.Rptr. 863.) Inherent in this type of case are problems of pleading and proof creating a tension between society's obligation to punish criminal offenders and a defendant's due process right to a fair trial in which the criminal acts are proved beyond a reasonable doubt. Establishing the elements of each charged offense is difficult even where there is an intuitive confidence that some criminal conduct occurred because the young child, molested on a regular basis may not have a meaningful reference point of time or detail to articulate differences between acts occurring over a prolonged period of time. (People v. Van Hoek (1988) 200 Cal.App.3d 811, 814–815, 246 Cal.Rptr. 352.) The problem is exacerbated where the victim, reluctant to discuss the sordid details, is also unable because of age to adequately articulate or describe past events which he or she wishes to forget or at least to ignore so as to avoid further discomfort. If the task in a criminal trial were limited solely to the establishment of truth, methods could easily be developed to make the young witness's ordeal considerably easier. (See Coy v. Iowa (1988) 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857; see also Final Report: California Child Victims Witness Judicial Advisory Committee, pp. 75–83.) But criminal trials, even those involving young victims, must be conducted in a manner consistent with the defendant's constitutional rights. Those rights include adequate notice of the charges, proof of the offenses beyond a reasonable doubt, and a meaningful jury deliberation followed by complete appellate review.
Here Jones' challenge to his convictions reflects the foregoing tension. He weaves his contention there is insufficient evidence to support the judgment with claims the court prejudicially erred in failing to require the prosecution to elect specific acts constituting the separate offenses, or, alternatively, to require special verdict findings as to each offense, and in permitting the information to be amended after the defense rested. He also says that the court's failure to confront the need for specificity at trial precludes us from reviewing his arguments in a constitutionally satisfactory manner. In other words the vagueness of the proof combined with the lack of specificity as to acts deprived Jones of appellate due process.
Because of the confusion that can result when these arguments are merged, we think it best to discuss each contention separately.4
III
SUFFICIENCY OF THE EVIDENCE
A simple and cohesive factual narrative stated in the light most favorable to the judgment is made more difficult here than in the usual case because, except as to Kenny, the jury reached different verdicts as to each victim. The jury was consistent on the three counts involving Kenny, finding Jones guilty on each, thereby allowing Kenny's testimony and the corroborating evidence as to those convictions to be stated in a manner which supports the judgment. As to the other counts our task is more complex. For example, as to Andrew the jury found Jones guilty on count four only, not guilty on some of the other counts and unable to agree on the balance. Thus this trial involved more than a mere credibility contest in which the jury accepted everything each victim had to say. Implicit in each of the jury's not guilty verdicts is their rejection of certain testimony from the respective victims and their agreement there was insufficient evidence to find Jones committed some of the acts alleged in the amended information within the specified time frame of the individual counts. Consequently, except as to Kenny, the following brief summary of the facts as to each victim is for the limited purpose of setting the scene as to what occurred at trial and does not suggest that we are accepting those parts of Andrew's, Sammy's and Bobby's testimony which the several jury verdicts indicate the jury rejected as an accurate statement of what actually occurred between the respective victims and Jones.
A
Trial TestimonyKenny
At the time of trial Kenny was 12 years old. In late 1980 Kenny's father, a single parent, met Patty Holcomb, a friend and neighbor of Jones. Kenny was seven years old when he first met Jones at Holcomb's house.
Kenny went to Jones' house to play marbles and computer games, and to go out to dinner. Sometimes Kenny spent the night with Jones when Jones offered to babysit. Jones introduced Kenny to Andrew, another neighborhood child. The two boys occasionally slept over at Jones' house. Jones and the two boys slept together in Jones' king-sized waterbed.
There is evidence of three distinct unlawful sexual acts committed on Kenny. The timing of the events is unclear. Kenny thought he was in the fourth grade when the molestations first occurred. He recalled going to Jones' house as early as March or April 1981, before he was in the fourth grade and before he and his father moved in with his stepmother, Patty Holcomb. Kenny testified he was molested by Jones every time he spent the night, about a half dozen times over a two or three year period. Kenny was never molested after August 1983 when Sammy moved in with Jones.
The first molestation occurred when both Kenny and Andrew slept over at Jones' house. The two boys and Jones took a shower together and Jones put baby powder on them. Jones slept between the two boys in the waterbed. He started sucking Andrew's penis and rubbing Kenny's. He then alternated between the two boys. The episode lasted for about 15 minutes. Jones told Kenny not to tell anyone. Kenny did not think anything was wrong. Andrew told Kenny after the first incident that “Mark does it all the time.”
Jones molested Kenny only when he spent the night with the exception of one daytime incident. On that occasion Kenny and Jones were sitting on the couch when Jones unzipped Kenny's pants and orally copulated him.
In the third specific incident, Jones was lying in bed behind Kenny. Jones pushed his penis between Kenny's legs until sperm came out onto a towel he had laid in front of the boy. Jones' penis felt hard to Kenny. Kenny did not know what sperm was and Jones told him.
Andrew
Andrew was 14 years old at the time of trial. He testified that he was 8 years old when he first started spending time with Jones. Beginning in 1983 Andrew spent the night at Jones' house about two weekends a month, sleeping with Jones in a waterbed. Sometimes Kenny was there.
One time when Andrew was sleeping with Jones, he woke up and Jones was sucking on his penis. Jones told him not to tell anyone. The same incident occurred almost every time Andrew stayed overnight and had been going on for at least a year when Sammy moved in the summer of 1983.
Another time when Andrew and Kenny spent the night, Jones let the boys look at Playboy magazines and then sucked both their penises. Andrew and Kenny never talked about the incident.
Andrew also testified he was molested on two camping trips he took with jones.
Jones informed Andrew that a detective would be coming to question him. He told Andrew to deny everything. Jones said to tell Kenny the same thing. Andrew initially lied to the detective because Jones told him to.
Bobby
Bobby was nine years old at the time of trial. He did not remember his mother leaving him and his brother Sammy at Hillcrest Receiving Home. He and Sammy were living in separate foster homes when Sammy moved in with Jones. However, Bobby began visiting on weekends and moved in with Jones about one month after Sammy in 1983.
The first time Bobby was molested he was asleep. He woke up with Jones sucking his penis. He could not remember how often the molestations occurred but said they lasted until the time he was taken back to Hillcrest on June 18, 1985.
Bobby testified he was also orally copulated once during the day while on a camping trip when Andrew and Sammy were at the pool.
Bobby saw Jones molesting Sammy once. Bobby was looking for Jones in the bedroom. He found Jones in bed with his head under the covers with Sammy. Jones did not see him.
Bobby testified he had previously been molested by the 14–year–old son of a babysitter while he was living in a foster home. Bobby never told anyone about the molestation by Jones or the teenager. He denied orally copulating anyone else. He said he would like to go home and live with Jones but wanted to change “the sucking stuff.”
Sammy
Sammy grew up in numerous foster homes after his mother left him and his younger brother Bobby at Hillcrest Receiving Home. He was 10 years old when he went to live with Jones in August 1983 after Jones expressed interest in adopting him.
For the first few weeks at his new home Sammy slept with Jones in the waterbed. The first incident of sexual molestation occurred about one month after Sammy moved in. Later Sammy got his own bed. The molestations usually occurred in the master bedroom or in one of the two other bedrooms which he and Bobby occupied. Sammy was always awake when the incidents occurred. Jones put his head under the covers and sucked Sammy's penis. Sammy could not remember the exact number of times Jones molested him or the dates, but he did remember specific incidents.
Jones orally copulated Sammy on a camping trip to Pio Pico Campground on Memorial Day weekend 1985. Sammy and Jones slept in the bed in the camper while Bobby slept on the floor. Sammy also recalled being molested on four to six other camping trips to Pio Pico but could not remember the dates. The incidents always occurred at night in the camper. Sammy testified to going on between 20 and 30 camping trips with Jones.
Sammy also remembered being molested 8 to 10 times in the master bathroom. Jones would dry him off after a shower and start sucking his penis.
He also witnessed Jones orally copulating Andrew, but never talked to Andrew about it.
Sammy liked Jones because he was nice. He never told anyone about the incidents until contacted at school by the investigating officer because he was afraid he would be taken away from Jones.
Jones' Defense
Jones denied he had molested the boys, showered with them, or showed them Playboy magazines. He testified he had caught Andrew, Bobby, and Sammy orally copulating each other on the Memorial Day camping trip and believed they were fabricating the charges of sexual molestation to cover up their own misconduct. He also suspected that Kenny was involved in the sexual misconduct.
B
Discussion
Jones' argument there is insufficient evidence to support the judgment emphasizes our responsibility to examine the entire record so that we can be assured that the evidence supporting each conviction is “reasonable, credible and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.) Jones points out that where the evidence is qualitatively inadequate or inherently unreliable the appellate court must reverse the conviction. In making this assertion Jones reviews much of the evidence involving the respective victims highlighting the inconsistencies, contradictions, impeachment, biases and opportunities for fabrication or regurgitation of rehearsed testimony prepared for trial.
To a great extent, however, Jones' energetic appellate advocacy overlooks the fact that we must look at the evidence in the light most favorable to the judgment and that qualitative screening of the evidence has occurred at the trial court first by the jury and then by the judge in ruling on the new trial motion. The jury's selective decision to acquit on certain counts and convict on others shows the jury performed its responsibilities in a conscientious manner. In reaching different verdicts the jurors were able to effectively dissect the evidence distinguishing truth from fiction. Thus while we are sensitive to Jones' assertion that we should be cautious of an “artificially ordered and frozen summary” which can falsely depict the prosecution evidence as “having intelligibility and coherence” we cannot ignore the rules which govern our review. The appellate court is not a factfinder. Just as the summary of a record can “artificially freeze” guilt, it can also highlight inconsistencies and conflicts. But the resolution of those inconsistencies and conflicts was for the jury. While there may be some accuracy in Jones' statement describing the trial of this case as one in which the “trier of fact was swamped in a chaotic sea of conflicting accusations” we are satisfied that the jurors capably navigated that sea, resolving conflicts and inconsistencies sometimes in favor of Jones and other times against him. There is nothing here to suggest that the jurors' acquittal of Jones on 12 counts was merely fortuitous. We believe the same thoughtful judgment the jurors used to find Jones not guilty on some counts was applied in finding him guilty on others. Accordingly, we reject Jones' blanket assertion that the nature of the evidence is such that reversal of every guilty verdict is required and that Jones must be acquitted of all charges. We proceed to discuss Jones' specific contentions as to the sufficiency of the evidence in reference to the individual victims.
Kenny
Jones' principal quarrel with his convictions on counts 1 through 3 is that Kenny's memory of the dates when those molestations allegedly occurred was so abysmal that not only did Kenny's time estimates vary, but they were mutually exclusive. Jones directs us to Kenny's testimony in which he said the molestations occurred only after he moved to Mira Mesa and then to other places when Kenny said that he doubted that there were any molestations after the move. Kenny also testified that the events may have occurred in 1981 or 1982, or in March or April 1983.
Although when the events occurred has legal significance, the more important consideration in this discussion is whether they occurred. We can assume the jury believed Kenny's testimony that Jones committed the offenses. Kenny's testimony standing alone was sufficient proof to enable the jury to make that determination. (See CALJIC No. 2.27.) In addition, even though the timing of the events is unclear, the jury was able to identify and unanimously agree on the three separate acts constituting each of the first three counts.
Andrew
Andrew was the victim in counts 4 through 10 of the second amended information. Counts 4 through 7 covered April 1 through December 1, 1983, and were divided into consecutive 2 month periods. Count 8 specified January 1 to 14, 1984; count 9 May 16 to 23, 1985; and count 10 May 24 to 31, 1985. The jury found Jones guilty on only a single count—count 4 which specified the period April 1 through June 1, 1983.
Jones correctly states that Andrew's testimony is not a model of consistency when compared with the testimony of the other victims. Nonetheless it is clear that Andrew spent considerable time at Jones' house and frequently spent the night there. In response to the prosecutor's question concerning the overnight visits during “the spring of 1983” Andrew testified he woke up and Jones “was sucking [his] penis.” After completing the act, Jones told Andrew “not to tell anybody.” This was the reason Andrew had not come forward earlier to accuse Jones. Andrew also said that Jones later told him to deny what occurred when he was questioned by the detective. Andrew gave this as the reason for his initial responses when he was questioned by the police.
The foregoing testimony is sufficient to support the jury's findings of guilt on count 4. The date of the offense was adequately pinpointed in Andrew's testimony so that the jurors could unanimously conclude the offense occurred within the time period alleged in that count.
Bobby
The first amended information names Bobby as the victim in counts 11 through 17. Counts 11 through 16 encompass 6 separate 3 month periods starting with November 1, 1983, and ending with April 30, 1985. Count 17 involves only 2 months starting with May 1, 1985, and ending with June 30, 1985. The final version of the information submitted to the jury contained the same seven counts but alleged a common time period of November 1, 1983, through June 30, 1985. The jury acquitted Jones on counts 12, 13, 14 and 15 finding him guilty on counts 11 and 17 only.
In analyzing whether there is substantial evidence to support the verdicts on counts 11 and 17, we presume the jury considered the evidence in a chronological fashion beginning with Bobby's testimony on when the sucking started and ending with the last time Bobby was molested before being removed from Jones' care.
As to count 17 Bobby testified that he was molested on the camping trip to Pio Pico on the Memorial Day weekend before he was sent back to Hillcrest, which would place the date of the event in 1985. He said the incident occurred when he came back from swimming to rest. He explained that his “Dad” (Jones) told him to watch out for Sammy and Andrew and the sucking occurred when he was on the top bunk of the camper. There is sufficient evidence to support the jury's guilty verdict as to this count.
The evidence to support count 11 is admittedly thinner. Bobby testified the first time Jones molested him was shortly after he moved in with him, which Bobby thought was in November 1984. In identifying this date Bobby incorrectly said that he was in the third grade, although he was in the fourth grade at the time of trial two years later without having to retake any earlier grade. Thus Bobby's testimony was incorrect. It is clear that Bobby moved in with Jones in 1983 and not 1984.
The question is whether this discrepancy requires reversal. We think not. The jury rationally concluded that the molestation which Bobby described occurred shortly after he moved in with Jones. In light of the other evidence before the jury this event must have occurred in 1983. Accordingly the jury accepted Bobby's version of the events but relied upon other evidence to decide that the timing of the event was a year earlier than the time expressed in Bobby's testimony. The fact that the jury accepted Bobby's testimony and rejected another part does not mean that there is insufficient evidence to support the judgment. We believe a contrary inference should be drawn. This thoughtful jury was able to sift through the facts and decide Jones was guilty on the basis of all the evidence. We therefore reject Jones' argument there is insufficient evidence to support the judgment as to this count also.
Sammy
In order to determine whether there is sufficient evidence supporting the guilty verdicts on counts 18, 19, 20, 22, 23 and 28 in which Sammy was the victim we must determine whether the jurors could identify a time and/or a place so that they could unanimously agree on the acts constituting Jones' guilt. We are unable to do so. Our concern is with counts 19, 20, 22, and 23.
There is sufficient evidence to support Jones' convictions on counts 18 and 28. Sammy testified to three specific acts of molestation: one about a month after he moved in with Jones in August 1983 (count 18), another on the Pio Pico camping trip Memorial Day weekend in 1985 (count 28), and a last incident two days before he was removed from Jones' home in June 1985 (uncharged). The remainder of his testimony, however, is non-specific.
Sammy recalled being molested on four to six other camping trips, at home in bed and on eight to ten occasions getting out of the shower. These molestations occurred once or twice a month, but apart from the three incidents noted, Sammy was unable to describe the specific incidents or dates to enable the jury to differentiate among the various incidents. Based on the evidence presented it would have been impossible for the jury to determine whether he was molested in the camper, shower or bedroom in November and December 1983 (count 19), January and February 1984 (count 20) May and June 1984 (count 22) or July and August 1984 (count 23). We therefore conclude there is insufficient evidence to support the judgment as to these counts and accordingly reverse. Our reversal on this ground bars retrial as to these counts.
In reaching our conclusion we have rejected the People's reliance on People v. Osuna (1984) 161 Cal.App.3d 429, 207 Cal.Rptr. 641. Osuna is factually distinguishable. The Osuna court rejected the defendant's claim there was insufficient evidence to support his conviction of one count of lewd and lascivious conduct with a child under 14 years of age (§ 288, subd. (a)) and one count of forcible rape (§ 261, subd. (2)), the latter count reversed on other grounds. Both offenses were alleged to have occurred during the period of July 1–31, 1981. The seven-year-old victim testified the defendant put his fingers or his “thing” into her vagina every time her mother left her at home with the defendant. The mother testified she left her daughter with the defendant approximately twice a week, but could recall only one specific day in July 1981 when she had done so in order to attend a reception at Knotts Berry Farm. (Id. at p. 432, 207 Cal.Rptr. 641.) Here, in contrast, there is no testimony to tie the victims' unspecific allegations to a date or event that would enable the jury to properly differentiate between the counts.
IV
CONSTITUTIONAL/PROCEDURAL DEFECTSAThe Second Amended InformationProcedural Background
Jones makes several constitutional/procedural arguments which he claims require reversal. We first address his assertion that the court prejudicially erred in allowing a last minute substantial amendment to the information after he rested, and in refusing his request to reopen and defend in light of the amendment.
As noted earlier the first amendment to the information expanded the time frame applicable to counts 11–17 (Bobby) and changed the victim in count 18 from Bobby to Sammy. The amended information separated the counts involving Kenny and Bobby into short consecutive time periods as reflected in the attached appendix. The defense was given notice of the proposed amendments in advance and did not object.
The second amendment occurred after the defense had conditionally rested its case. On February 18, 1986, the court permitted the prosecution to amend the information again over defense counsel's strenuous objection. Under this amendment each of the 3 counts involving Kenny was alleged to have occurred during the same 30–month time period (March 1, 1981 to August 31, 1983), and each of the 7 counts involving Bobby was alleged to have occurred during the same 20–month time period (November 1, 1983 to June 30, 1985). The court denied Jones' request to reopen his case to recall two of the victims to testify concerning the expanded time periods set forth in the amendment.
Discussion
Section 1009 authorizes the superior court to permit an amendment to an information at any stage of the proceedings “unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, ․ may be granted.” This statutory authorization is qualified, however, providing that the information cannot be amended “so as to charge an offense not shown by the evidence taken at the preliminary examination.” (§ 1009.)
Here it is undisputed that there was no evidence at the preliminary hearing of criminal conduct involving Kenny which occurred before May 1, 1982. The reason for the amendment was that Patty Holcomb, Kenny's stepmother who had not testified at the preliminary hearing, testified at trial that Kenny met Jones in early 1981 and may have begun spending the night as early as March 1981. Although the second amendment to the information did not change the nature of the unlawful acts alleged to have been committed, it did charge offenses “not shown by the evidence taken at the preliminary examination”, that is, offenses alleged to have occurred before May 1, 1982.
Although section 1009 does not jurisdictionally foreclose such an amendment because it was a change in date only (People v. Crosby (1962) 58 Cal.2d 713, 721, 25 Cal.Rptr. 847, 375 P.2d 839), the statute is clear that any amendment can be made only when the defendant's right to notice and to defend against the amended charges are not impaired. Here Jones resisted the amendment claiming first it was untimely, unfairly depriving him of the opportunity to prepare for trial. He also argued that in any event, he was entitled to recall Kenny to cross-examine him on the events occurring within the expanded time frame. The court overruled Jones' objections and allowed the jury to decide Jones' guilt on the basis of the second amended information without permitting him to reopen his cross-examination.
In one sense it would be easy for us to say that the court's error is harmless. We could logically deduce that since the jury had rejected Jones' denial that he committed the offenses and his defense theory that the children had made up the charges to cover up their own misconduct, the jury would also reject these arguments as to the expanded time frame as to Kenny. We could opine that the critical issue at the trial was the respective credibility of the victims versus Jones and not the timing of the offenses. But to treat the amendment as harmless because we think the jury would have continued to disbelieve Jones had he been given the further opportunity to cross-examine the victim is tantamount to ignoring the due process formalities which must accompany a criminal trial. More is involved here than the timely correction of a clerical mistake. (See People v. Crosby, supra, 58 Cal.2d 713, 721, 25 Cal.Rptr. 847, 375 P.2d 839.) Jones had a right to be apprised not only of the charges against him, but when those charges allegedly occurred. He had the further right to develop his case on the basis of the charging allegations and to tailor his cross-examination of Kenny and others accordingly. When the time frame was expanded as to Kenny he was denied these rights. We can only speculate on the likelihood of whether his further cross-examination of the victim would have materially benefitted him. Because we are not permitted to speculate we cannot say the error was harmless beyond a reasonable doubt. We must therefore conclude the denial of Jones' fundamental rights to be apprised as to when the events occurred as to Kenny and the later denial of his right to cross-examine the victim as to that expanded time frame requires reversal of the convictions as to Kenny.
For the reasons discussed above we reject Jones' argument of prejudice as to Bobby. Jones cannot claim surprise regarding the amended dates for counts 11 through 17. The new dates covered virtually the same time period as the separate successive dates alleged in earlier versions of the information. Thus as to Bobby, Jones was given adequate notice and had adequate time to prepare his trial strategy accordingly.
B
The Either/Or Rule
Jones contends he was entitled to have the prosecution elect the acts it was relying upon to establish his guilt or, alternatively, to a special finding by the jury as to each count. He claims that lacking both he is denied appellate due process because we will be unable to determine whether there is sufficient evidence to support the particular act forming the basis for the jury's guilty verdict. Jones' argument has its source in the long line of precedent establishing the so-called “either/or rule” fully discussed in People v. Dunnahoo (1984) 152 Cal.App.3d 561, 199 Cal.Rptr. 796 and People v. Gordon (1985) 165 Cal.App.3d 839, 212 Cal.Rptr. 174. “[W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01 or 4.71.5 or their equivalent that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (See People v. Dunnahoo, supra, 152 Cal.App.3d at pp. 568–570 [199 Cal.Rptr. 796] and cases cited therein including People v. Deidrich (1982) 31 Cal.3d [263] at pp. 280–281 [182 Cal.Rptr. 354, 643 P.2d 971].)” (People v. Gordon, supra, at p. 853, 212 Cal.Rptr. 174; fns. omitted.) Here the court gave CALJIC No. 4.71.5.5
The problems associated with the prosecution's failure to elect are frequently resolved on the basis of a record in which the defendant has failed to make a timely request for the election. (See, e.g., People v. Dunnahoo, supra, 152 Cal.App.3d at p. 572, 199 Cal.Rptr. 796; People v. Gordon, supra, 165 Cal.App.3d at p. 854, fn. 17, 212 Cal.Rptr. 174.) In such circumstances the appellate court says the giving of the unanimity instruction satisfies a defendant's rights.
Here, however, defense counsel made a request for the prosecution to elect the acts which were being relied upon or for the jury to make special findings on each count immediately after the court approved the filing of the second amended information. We believe the timing of the defense request is significant, defining the issue before us. It shows that Jones' extremely capable and experienced defense counsel was satisfied that the earlier pleading had furnished his client sufficient notice and did not deny him the opportunity to adequately prepare for trial. In other words, Jones did not say at trial, and does not say here, that he did not receive fair notice of the charges. His specific claim of prejudice was, and now is, that the appellate court would be, and is, unable to determine whether there is evidence “sufficient to support the particular act found by the jury if there is no election of act and if the jury is not required to specify the act in the verdict form.” Thus in the context of this case the significance of the “either/or” rule is limited to the question of whether Jones' appellate due process rights have been satisfied. We categorically answer that question in the affirmative.
We first state that the form of this opinion should suggest that there is merit to Jones' argument that appellate review would have been considerably easier if there had been special jury findings. This should not be construed as meaning that the jury's finding must contain a specific hour on a specific day when a criminal act occurred. The jury verdict must only contain sufficient information which reflects their unanimous selection of specific acts constituting the offense so that the appellate court on review will be able to identify those facts supporting each guilty verdict. To say, however, the court's failure to require a special finding denied Jones appellate due process is incorrect. Obviously we would have preferred a special finding on each of the guilty verdicts. Nonetheless, our recitation of the facts and our reference to certain of those facts which support some of the verdicts reflects our ability to review the evidence in a manner which satisfies Jones' appellate rights. Thus the thoroughness of our review is clearly manifested in the reversal of counts 19, 20, 22 and 23. We reject Jones' claim that he has been denied appellate due process.
V–X *
DISPOSITION
Except as to counts 1, 2, 3, 19, 20, 22 and 23, the judgment is affirmed. The case is remanded for further proceedings consistent with this opinion including retrial on counts 1, 2 and 3 and/or if there is no retrial, resentencing on counts 4, 11, 17, 18 and 28. The trial court is instructed to strike Jones' convictions and sentences on counts 19, 20, 22 and 23.
APPENDIX
Analysis of Amendment to Information
I concur in the majority opinion except as to those portions dealing with the sufficiency of the evidence as to Sammy and the propriety of the amendments as to Kenny.
I
Sufficiency of Evidence As To Sammy (Counts 19, 20, 22, 23)
The majority concludes there is insufficient evidence to support the findings of guilt with respect to Sammy in counts 19, 20, 22 and 23. I respectfully disagree.
Whenever the evidentiary support for a conviction is challenged on appeal, the court must view the whole record in the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 562, 162 Cal.Rptr. 431, 606 P.2d 738.)
Analyzed in terms of sufficiency of the evidence, the majority concludes Sammy was unable to adequately describe the times or places of the molestations thus rendering his testimony impermissibly nonspecific.
Sammy testified, however, that the molestations took place once or twice each month starting approximately one month after he moved in with appellant in August of 1983. Sammy recalled no molestations took place in either March or April of 1984. The nature of the molestations was always the same and they always occurred on appellant's waterbed in the master bedroom, the bedroom Sammy shared for a period of time with his brother, or Sammy's bedroom. Approximately eight to ten of the molestations occurred after Sammy had showered. Contrary to the majority's opinion, I believe People v. Osuna (1984) 161 Cal.App.3d 429, 433, 207 Cal.Rptr. 641, offers the analysis applicable here. In Osuna it was alleged a rape occurred sometime in July 1981. The victim testified she was sexually molested “every time” she was left alone with the defendant. The court's decision rested upon the following principle:
“When a defendant does not raise a specific alibi defense, the prosecution need only prove the act was committed before the filing of the information and within the period of the statute of limitations. [Citations.] The jury was properly instructed it was not necessary the proof show a crime was committed on a precise date.” (Ibid.)
The court observed:
“Osuna denied molesting Janet at all during July 1981. Since he did not raise an alibi defense he was neither prejudiced nor misled, and the prosecution was only required to show a crime had occurred sometime between July 1 and July 31, 1981. We are satisfied the jury had sufficient evidence from which to infer a criminal act took place on at least one day during the month of July.” (Ibid.; italics added.)
That the victim's mother testified to a particular incident where she left the child alone with the defendant was clearly not determinative to the court's decision and I believe does not warrant a basis for the distinction relied upon by the majority.
The observations made in Osuna are equally applicable here. Appellant offered no alibi defense. Sammy's testimony was certainly sufficient if believed to enable the jury to conclude he had been molested at least once during the time periods November 1, 1983, to December 31, 1983, January 1, 1984, to February 29, 1984, May 1, 1984, to June 30, 1984, and July 1, 1984, to August 30, 1984. That the jury was able to differentiate between the various time periods and places involving Sammy is evidenced by the court's giving of CALJIC No. 4.71.5 which required unanimity as to specific offenses and the jury thereafter finding appellant not guilty of count 21 which encompassed March and April of 1984. Sammy testified that in those months no molests occurred. The jury also found appellant not guilty of counts 24, 25, 26 and 27 which applied to the time period following August of 1984.
In this court's recent opinion, People v. Sanchez (1989) 208 Cal.App.3d 721, 256 Cal.Rptr. 446, we distinguished cases such as People v. Van Hoek, supra, 200 Cal.App.3d 811, 246 Cal.Rptr. 352, in which there was a complete failure to present any specific act to support a charged crime, from those cases where such specificity occurs. Citing People v. Luna (1988) 204 Cal.App.3d 726, 739–746, 250 Cal.Rptr. 878, we noted:
“On the other hand, if the evidence of the molestations reveals ‘any specific act to support the charged crime,’ with the giving of the unanimity instruction or under an election as to which of the acts the prosecutor is relying upon to convict, there is no due process violation and the conviction stands as supported by substantial evidence.” (People v. Sanchez, supra, 208 Cal.App.3d at p. 745, 256 Cal.Rptr. 446, italics added.)
Reading Osuna and Sanchez together, it is clear ample specificity exists to uphold the verdicts in counts 19, 20, 22 and 23.
II
Amendment As To Counts One, Two and Three—Kenny
Whether to allow an amendment of the information to correct a deficiency is a matter within the sound discretion of the trial court. (People v. Witt (1975) 53 Cal.App.3d 154, 164–165, 125 Cal.Rptr. 653.) The test for determining whether the trial court abused its discretion in permitting an amendment is whether the amendment prejudiced substantial rights of the accused and attempted to change the offense to one not shown at the preliminary hearing. (People v. Brown (1973) 35 Cal.App.3d 317, 322, 110 Cal.Rptr. 854.) I do not believe an abuse of discretion occurred in this case either in permitting the second amendment or denying appellant's requests to recall Kenny to the stand.
A
Quite clearly the trial court was empowered to grant the amendment extending the time period within which the offenses against Kenny were alleged to have occurred. Penal Code section 1009 provides that once the defendant has entered a plea, the court “may order or permit an amendment of an ․ information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings ” as long as the offenses as newly alleged do not differ from those charged at the preliminary hearing. (Italics added.) If the offenses have not changed there has been no violation of the defendant's due process rights. (People v. Graham (1974) 38 Cal.App.3d 251, 254–256, 112 Cal.Rptr. 915; People v. Spencer (1972) 22 Cal.App.3d 786, 799, 99 Cal.Rptr. 681.)
It bears emphasizing that neither the number nor nature of the offenses alleged as to Kenny were changed by the second amended complaint. All that changed was the time period within which the offenses were alleged to have occurred. The majority equates a trial amendment as to the time period within which offenses are alleged to have occurred with the charging of offenses not shown at the preliminary hearing. This result elevates a perceived need for temporal precision at the preliminary hearing to a fundamental right. Existing law holds otherwise.
Penal Code section 955 provides:
“The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient of the offense.”
(See People v. Wrigley (1968) 69 Cal.2d 149, 154–158, 70 Cal.Rptr. 116, 443 P.2d 580; People v. Cox (1968) 259 Cal.App.2d 653, 660, 66 Cal.Rptr. 576; People v. Barreras (1960) 181 Cal.App.2d 609, 614, 5 Cal.Rptr. 454.) For purposes of charging the offenses, the People need not allege any date at all except as is necessary to prove the offenses occurred within the applicable statute of limitations. (In re Demillo (1975) 14 Cal.3d 598, 602, 121 Cal.Rptr. 725, 535 P.2d 1181; People v. Crosby (1962) 58 Cal.2d 713, 724–725, 25 Cal.Rptr. 847, 375 P.2d 839; People v. Mack (1959) 169 Cal.App.2d 825, 829–830, 338 P.2d 25; Witkin, Cal.Crim.Procedure § 196, pp. 184–185.)
Consistent with the foregoing, it has repeatedly been held trial variance as to the date of the offense is immaterial unless time is of the essence of the offense (see People v. Amy (1950) 100 Cal.App.2d 126, 127, 223 P.2d 69; People v. Murray (1949) 91 Cal.App.2d 253, 257, 204 P.2d 624) or unless the defendant was misled in making his defense or placed in danger of being twice in jeopardy. (Owen v. Superior Court (1976) 54 Cal.App.3d 928, 933–934, 127 Cal.Rptr. 1; People v. Mack, supra, 169 Cal.App.2d at p. 829, 338 P.2d 25.)
This case is similar to People v. Amy, supra, 100 Cal.App.2d 126, 223 P.2d 69, where the defendant was also tried for sex offenses against a minor. In Amy, a variance occurred between the dates set forth in the information and evidence adduced at trial. The court there held the variance was immaterial because the offenses were committed within the applicable period of limitations, no alibi as to the dates charged was offered, defendant was not in danger of double jeopardy, the defense was a complete denial of the act charged and variance was not raised in the trial court. Here, as in Amy, there is no allegation of a statute of limitations or double jeopardy problem. As in Amy, a defense of alibi was never offered to any of the offenses and appellant never urged at trial that an alibi defense would be jeopardized by the amendment. The defense was a complete denial the acts took place. Under these circumstances the amendment was proper.
B
When a court has properly permitted an amendment, the defendant is required to plead to such amendment and “the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted.” (Pen.Code, § 1009.) I read the “substantial rights” language of Penal Code section 1009 in a somewhat different context than the majority which views the language as modifying the propriety of amendment. As I read the preceding language of Penal Code section 1009, an amendment which, while proper, works surprise to the defendant may necessarily result in a midtrial continuance to allow him to prepare to meet the new allegation or evidence. (See also Pen.Code, § 1050, permitting continuance during trial.) It is unclear to me precisely what the majority perceives appellant's right to prepare for trial to be. The majority concludes Jones had a right to “develop his case on the basis of the charging allegations and to tailor his cross-examination of Kenny and others accordingly.” (Majority opn. at p. 351.) To the extent this statement implies the amendment here must have occurred prior to appellant beginning the presentation of his case at trial, I believe the majority rewrites the clear language of Penal Code section 1009 which allows amendment at any time. To the extent this statement implies the trial court abused its discretion in disallowing additional cross-examination of Kenny, I respectfully disagree. Appellant, it must be noted, never requested a continuance due to surprise. Moreover neither a continuance nor further cross-examination of Kenny was mandated inasmuch as appellant's defense was that all of the allegations were fabricated. As such it made no difference whether the alleged offenses never happened on the dates originally alleged or never happened on the new dates alleged. As the trial court noted, the critical issue as fashioned by appellant's defense was credibility. It therefore found no prejudice would result to the appellant in allowing the amendment. In expressing the belief appellant was prejudiced because he could not further cross-examine Kenny or otherwise reopen his case, the majority assumes that somehow his defense may have changed or expansion of cross-examination may have eroded the credibility of the witnesses testifying against appellant. However nothing has been recited which supports such a conclusion. The only conclusion which can be drawn from this record is that further cross-examination or reopening of the case would not have altered the positions of the parties, witnesses or defense offered. I defer to the discretion vested in the trial court and would affirm its ruling as to the amendments.
FOOTNOTES
2. All statutory references are to the Penal Code unless otherwise specified.
3. Section 1203.066, subdivisions (a)(8) and (a)(9) preclude probation for a person who in violating section 288 has substantial conduct with a victim under the age of 11 years (subd. (a)(8)) or occupies a position of special trust with the victim including, but not limited, to the position occupied by an adoptive parent or youth leader (subd. (a)(9)).
4. Frankly, we have been motivated to take this approach after reviewing the diverse views of justices in the Fifth Appellate District who have confronted similar issues within the last year. (See People v. Martinez (1988) 197 Cal.App.3d 767, 243 Cal.Rptr. 66 [Ballantyne, J., with Reid, (assigned), concurring and Hammond, J. dissenting]; People v. Van Hoek (1988) 200 Cal.App.3d 811, 246 Cal.Rptr. 352 [Ballantyne with Stone and Brown (assigned), concurring]; People v. Atkins, (1988), 203 Cal.App.3d 15, 249 Cal.Rptr. 863 [Ballantyne, Best and Pettitt (assigned) ]; People v. Jeff (1988) 204 Cal.App.3d 309, 251 Cal.Rptr. 135 [Martin, Hamlin, concurring and dissenting, and Best, concurring and dissenting]; People v. Luna (1988) 204 Cal.App.3d 726, 250 Cal.Rptr. 878 [Pettitt (assigned), Woolpert and Best, concurring]; People v. Vargas (1988) 206 Cal.App.3d 831, 253 Cal.Rptr. 894 [Ardaiz, with Woolpert and Sarkisian (assigned) concurring].). We believe our decision is consistent with the holdings in the foregoing cited cases. We note, however, the disposition in certain of those cases is somewhat more opaque than the disposition here. For example, in People v. Van Hoek, supra, the defendant's conviction was reversed ostensibly on due process grounds (200 Cal.App.3d at p. 816, 246 Cal.Rptr. 352) which permits a retrial. However, Justice Best in his concurring and dissenting opinion in People v. Jeff, supra, says the reversal in Van Hoek was based on the insufficiency of the evidence and thus retrial was barred. “In my view, therefore, consistent with our opinions in Van Hoek and Atkins the evidence was insufficient to support a conviction for any other alleged criminal acts and retrial for any acts of sexual molestation other than the three specific acts just referred to would be barred by double jeopardy principles. (People v. Green (1980) 27 Cal.3d 1, 62 [164 Cal.Rptr. 1, 609 P.2d 468].)” (204 Cal.App.3d at p. 347, 251 Cal.Rptr. 135.) Whether the obfuscation of the dispositions in Van Hoek and Atkins was intentional involves speculation on our part which to say the least is hardly productive.Recently in People v. Sanchez (1989) 208 Cal.App.3d 721, 256 Cal.Rptr. 446, this court discussed the Fifth District's cases on this issue but declined to expressly rule on Sanchez's Van Hoek argument or express a view on the subject, deciding the evidence was sufficiently specific to support each count charged. Thus the difference between our case and Sanchez is grounded solely on the facts.
5. CALJIC No. 4.71.5 provides:“Defendant is charged in Counts 1–7, and 9–28 of the Amended Information with the commission of the crime of Committing a Lewd and Lascivious Act Upon a Child, a violation of section 288(a) of the Penal Code, during various time periods as specified in the Information.“In order to find the defendant guilty, it is necessary for the prosecution to prove beyond a reasonable doubt the commission of a specific act or acts constituting said crime within the time period alleged.“And in order to find the defendant guilty, you must unanimously agree upon the commission of the same specific act or acts constituting said crime within the time period alleged.“It is not necessary that the particular act or acts committed and so agreed upon be stated in the verdict.”
FOOTNOTE. See footnote 1, ante.
WIENER, Acting Presiding Justice.
WORK, J., concurs.
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Docket No: No. D005229.
Decided: March 29, 1989
Court: Court of Appeal, Fourth District, Division 1, California.
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