Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct.No. SWF4455 Albert J. Wojcik, Judge.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and William M. Wood, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant of eight sexual offenses committed between 1999 and May 2003 against his granddaughter, Jane Doe (Jane), a minor.
After the trial court granted defendant’s motion for a new trial on count 1, the prosecutor dismissed it. The seven counts remaining are: 1) count 2, alleging an act of unlawful forcible penetration by a foreign object in May 2003 (§ 289, subd. (a)(1)); 2) counts 3 and 4, alleging lewd acts on a child in May 2003 (§ 288, subd. (c)); 3) counts 5 and 6, alleging forcible lewd acts on a child between 2000 and 2002. (§ 288, subd. (b)(1)); and 4) counts 7 and 8, alleging forcible lewd acts on a child in 1999. (§ 288, subd. (b)(1).)
The court sentenced defendant to a collective prison term of 33 years four months.
On appeal, defendant contends the trial court erred when it allowed the prosecution to amend the information orally during trial. He challenges the sufficiency of the evidence on counts 7 and 8. He argues against the imposition of full, consecutive terms on counts 5 through 8. Both defendant and the People concur the trial court must resentence defendant on count 2. We affirm the judgment but remand for resentencing.
Defendant’s argument about the imposition of the $20 court security fee (§ 1486.5) has been decided against him in People v. Alford (2007) 42 Cal.4th 749.
2. Factual and Procedural Background
Jane was born in November 1988 and was 17 years old when she testified at trial in April 2006. Defendant is Jane’s maternal grandfather. Jane lived with her mother, Lisa P., and stepfather, Barry B., until July 1999. Lisa and Barry both physically abused Jane. Barry sexually abused Jane until she told her mother and they left Barry and moved in with Lisa’s parents, Jane’s grandparents. Lisa, who had a drug problem and mental health issues, eventually moved out to an apartment down the street and Jane stayed with her grandparents.
When Jane was approximately 11 years old, she was watching television with defendant in the grandparents’ bedroom. He began rubbing her upper thigh and breast. When Jane objected and moved away from him, defendant persisted until she threatened to call the police. He did not respond verbally except to warn Jane not to tell her grandmother. Jane was afraid to tell her grandmother because she thought she would not be believed.
Later, when Jane was approximately 12 years old (between November 2000 and 2001), her grandmother had surgery and Jane went to live with her uncle, Henry, and his girlfriend, Sarah.
After her grandmother’s surgery, which Jane remembered as the end of 2000, Jane moved back with her grandparents. In December 2000, she was watching television in the living room or the grandparents’ bedroom. Defendant approached her and rubbed her leg and breast harder than before. He put his hand inside her pants and tried to penetrate her with his finger while she resisted by squirming and twisting her legs. With his other hand, he rubbed her breast under her shirt. She testified inconsistently about whether he stopped when she objected verbally. She did not report the incident to anyone.
In May 2003, Jane was watching television and defendant was using the computer in the grandparent’s bedroom. Defendant began rubbing her breasts and genitals, both over and under her clothing. She repeatedly asked him to stop. Defendant insisted he could do what he wanted and she could not tell him differently. Jane threatened to speak to her grandmother and he seemed angry. Jane did not tell her grandmother because of her concern she would not be believed.
Although Jane uses the word “vagina,” that word describes an internal organ, not exterior genitalia like the labia and the vulva.
On another afternoon in May, Jane was home alone with defendant while the grandmother attended the Ramona Pageant. Jane was watching television when defendant appeared naked in the doorway. He sat down and put one hand inside her pants and one inside her shirt. He rubbed her chest and genitals, trying unsuccessfully to penetrate her with his finger. She “scooted over” and told him to stop or she would scream. When she tried to stand up, he used one hand to hold her down. Her pants were pulled down to her ankles. Defendant climbed on top of her and rubbed his erect penis against her genitals. When they heard the garage door open because Jane’s grandmother was returning, defendant stopped and told Jane, “Don’t say nothing to her” before quickly leaving the room. Jane pulled up her pants and was unsure whether to speak to her grandmother.
A week later, Jane was packing her bags to run away. Her mother argued with her and Jane finally told her mother about defendant touching her. Jane’s mother and her grandmother took her to the police station. On May 19, 2003, David Tamez, a Riverside County deputy sheriff, conducted audiotaped interviews of Jane and her grandmother.
In December 2003, assisted by her mother and an aunt, Jane wrote a letter recanting her statements about defendant’s conduct. In it she said she had lied and she was scared to go to juvenile hall if she admitted lying. She testified her mother pressured her into writing the letter so Jane could get her belongings and her dog from her grandmother’s house and because her grandmother offered her $20. Her grandmother cried about defendant going to jail. Jane did not get back any of her belongings or her dog or receive $20. She is estranged from her mother and grandmother.
Jane denied having a boyfriend or arguing about boys with defendant. She denied being angry with her mother or her grandmother the day she told them about the molestations. She denied her dog ever tugged her pants down or that she walked around the house in the nude and touched her genitals.
Jane’s grandmother testified that Jane was angry because she could not stay at the house of her friend, Keira. Jane was in trouble in school and lied about going to Keira’s. That was when Jane made the accusations against defendant.
At first, the grandmother believed Jane. She told the police she had found defendant in Jane’s bedroom. He was dressed and on top of her. Jane was in her pajamas under the covers. They were both laughing. They claimed they were playing. But the grandmother was uncomfortable and asked Jane if there was something going on between them. The grandmother told defendant to stop the behavior. The grandmother described Jane as a “good girl.”
On May 17, 2003, the grandmother attended the Ramona Pageant. When she came home, defendant left to visit another woman. That same day the grandmother argued with Jane about Keira.
A few days after the police interview, the grandmother changed her mind because she observed Jane and Keira laughing inappropriately outside the police station. The grandmother told a sheriff’s investigator about Jane fighting and smoking marijuana and that Jane had “acted out” and undressed in front of defendant. The grandmother also testified that Jane was suspended for fighting at school shortly before she reported the abuse and she had been caught smoking marijuana. Once Jane had tried to display herself naked in front of her grandparents. Another time she removed her clothes and scratched her pubic area in front of her grandmother and mother.
The sheriff’s department interviewed defendant. Defendant claimed Jane would approach him naked and ask whether he has wanted to have sex with a young girl. He responded that he would but not with his granddaughter. He denied having sexual contact with Jane. The day his wife went to the Ramona Pageant, defendant and Jane wrestled and chased one another. When the dog pulled down Jane’s pants, defendant “hit her on the ass.” He described what occurred as a “curiosity thing” but it was not sexual and he did not have an erection. He told Jane to dress herself. On an earlier occasion when they were wrestling, Jane’s breast came out of her shirt and he touched it accidentally and out of curiosity.
He then elaborated that, on the day of the Ramona Pageant, he had been taking a shower when Jane came in wearing “skimpy” clothes. He sat on a chair and told her to leave while he dressed. She jumped on the bed and the dog pulled her pants down. Then Jane jumped on to defendant’s lap. His penis was close to her buttocks. He did not mean to touch her or to go “so far.” He grabbed her and told her to leave. He admitted being alone with her was a mistake. It was not sexual and he was not aroused but merely curious. Defendant agreed to write Jane a letter of apology. He admitted he may have touched her 50 times.
Henry, defendant’s son and Jane’s uncle, testified that Jane acted badly when living with him, cutting school, using profanity, being defiant, threatening to run away, and acting violently toward his children. He agreed Jane’s mother had mental health and drug problems. According to Henry and his wife’s recollections, Jane and her mother lived with them and the grandparents alternately in 2000 until October 2000 (or October 2001), when Jane moved back in with Henry’s family. Henry remembered Jane living with the grandparents permanently beginning in June 2001. His wife remembered the date being June 2002.
Henry and several other witnesses testified on defendant’s behalf that they never observed any sexual misconduct and they vouched for his character.
3. Amendment of the Information
Defendant contends he was prejudiced when the court allowed the prosecutor to amend the information during trial, changing the dates on the offenses as follows: on count 2, from May 17, 2003, to May 2003; on counts 3 and 4 from May 10, 2003, to May 2003; on counts 5 and 6, from two months, November and December 2000, to three years, 2000 to 2002; and on counts 7 and 8 from two months, November and December 1999, to the year 1999. Defendant argues these changes in the offense dates materially affected his defense, especially on counts 5 and 6 because he tried to show he could not have committed those offenses on the originally alleged dates of November and December 2000.
We reject this contention because we hold that, pursuant to section 1009, the trial court had the discretion to permit any amendment that “does not change the nature of the offense charged nor prejudice the defendant’s rights.” (People v. Garringer (1975) 48 Cal.App.3d 827, 833; People v. Bolden (1996) 44 Cal.App.4th 707, 716 (Bolden); People v. Winters (1990) 221 Cal.App.3d 997, 1005; People v. George (1980) 109 Cal.App.3d 814, 818-819.)
Section 1009 authorizes the trial court to “permit an amendment of an . . . information . . . at any stage of the proceedings, . . .” The trial court must deny leave to amend “if the amendment would prejudice the defendant’s substantial rights. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 129.) “An amendment to the information may be made as late as the close of trial if no prejudice is shown. [Citation.]” (People v. Villagren (1980) 106 Cal.App.3d 720, 724; accord, People v. Witt (1975) 53 Cal.App.3d 154, 165, cert. den. (1976) 425 U.S. 916.)
Granting a motion to amend an information is within the sound discretion of trial court. The trial court’s ruling in granting a motion to amend “‘will not be disturbed on appeal in the absence of showing a clear abuse of discretion.’ [Citation.]” (Bolden, supra, 44 Cal.App.4th at p. 716.)
The change in dates caused no alteration in the nature of the sexual offenses as charged. Unlike the circumstances in the cases relied upon by defendant, the offenses were exactly the same and the prosecution’s theory of liability did not change because of the amendments. Only the dates were different. (People v. Anthony (1912) 20 Cal.App. 586, 590-591.) But the date was not an element or a material ingredient of any of the charged offenses. (§ 955; People v. Jones (1990) 51 Cal.3d 294, 316; People v. Byrd (1960) 187 Cal.App.2d 840, 842.) In that sense, the present case is more like those, which defendant tries to distinguish, involving a permissible amendment to correct a minor or clerical error. (People v. Crosby (1962) 58 Cal.2d 713, 720-721; In re Newbern (1960) 53 Cal.2d 786, 789-790; People v. McQuiston (1968) 264 Cal.App.2d 410, 417-418; People v. Wilder (1955) 135 Cal.App.2d 742, 749.)
Defendant relies primarily on Gray v. Raines (9th Cir. 1981) 662 F.2d 569, Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, Calderon v. Prunty (9th Cir. 1995) 59 F.3d 1005, 1009-1010, and Lucas v. O’Dea (6th Cir. 1999) 179 F.3d 412.
Furthermore, defendant does not adequately explain how the amendment caused prejudice to him. His defense was almost entirely based on the testimony and statements of witnesses and his own statements that he did not and would not have molested Jane and suggesting that she acted in retaliation for not getting her way. Nothing, however, about the amendments undermined that contention. Defendant additionally tried to show that he could not have committed counts 5 and 6 in November or December 2000 if Jane was not living with her grandparents during that time. But, although the victim may have been uncertain about the precise dates of the offenses against her, she consistently described the specifics of each episode and the sequence in which they occurred. It is undisputed that Jane lived with her grandparents at different times from 2000 until May 2003. Jane clearly testified that the episode comprising counts 5 and 6 occurred after her grandmother’s surgery when she moved back in with her grandparents even if it did occur later than November or December 2000. Under these factual circumstances, the trial court did not abuse its discretion by allowing the information to be amended to include the whole time period during which the offenses could have occurred.
4. Sufficiency of Evidence on Counts 7 and 8
Counts 7 and 8 involve the first episode in which defendant touched Jane’s thigh and breast in 1999 when she was 10 or 11 years old.
The jury convicted defendant of two counts of violating section 288:
“(a) Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
“(b)(1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”
Defendant asserts there was no substantial evidence of force or duress as required by the statute, citing People v. Pitmon (1985) 170 Cal.App.3d 38, 51 (Pitmon):
“The total circumstances, including the age of the victim, and his relationship to defendant are factors to be considered in appraising the existence of duress. We note that at the time of the offenses, Ronald was eight years old, an age at which adults are commonly viewed as authority figures. The disparity in physical size between an eight-year-old and an adult also contributes to a youngster’s sense of his relative physical vulnerability. . . . These factors all bear upon the susceptibility of a typical eight-year-old to intimidation by an adult.”
Defendant also cites cases holding: “‘[p]sychological coercion’ without more does not establish duress” (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321; People v. Hecker (1990) 219 Cal.App.3d 1238, 1250-1251) and “‘duress’ has been defined as ‘a direct or implied threat of force, violence, danger, hardship or retribution . . . .’” (People v. Senior (1992) 3 Cal.App.4th 765, 775; Hecker, supra.)
In reviewing a jury verdict, we apply a deferential standard of review. (People v. Welch (1999) 20 Cal.4th 701, 758; People v. Thomas (1992) 2 Cal.4th 489, 514.) As noted in Pitmon and many other cases, a child victim’s age, size, and relationship to the defendant are significant factors in establishing duress. (Pitmon, supra, 170 Cal.App.3d at p. 52; People v. Cochran (2002) 103 Cal.App.4th 8, 14; People v. Schulz (1992) 2 Cal.App.4th 999, 1005; People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239; People v. Sanchez (1989) 208 Cal.App.3d 721, 747-748.)
Here the evidence supporting counts 7 and 8 shows that defendant exerted physical restraint and force over Jane substantially different from or substantially greater than that necessary to accomplish the lewd act itself and sufficient to support the convictions. His conduct scared her and she testified she was afraid to report it. Additionally, the physical disparity between defendant and his 10- or 11-year-old granddaughter and his role as a disciplinarian and adult authority figure supplied further evidence of duress. Taking all the circumstances together, we conclude there was sufficient evidence of force and duress, manifested as an implied threat of force or retribution, for a reasonable jury to find a violation of two counts of section 288, subdivision (b)(1).
5. Sentencing Error
As to count 2 and counts 5 through 8, defendant asserts the trial court committed several sentencing errors, most of which involve the application of section 667.6 for violent sex crimes. In pronouncing sentence, the court made count 2 the principal count and imposed the upper term of eight years, based on aggravating circumstances of great cruelty and defendant taking advantage of a position of trust and confidence. (Cal. Rules of Court, rule 4.421(a)(1).) In addition, the court sentenced defendant to two consecutive prison terms of eight months each on counts 3 and 4. On counts 5 through 8, the court imposed four separate, consecutive six-year sentences. The total sentence was 33 years four months. The trial court did not make any reference to section 667.6.
Pursuant to section 667.6, subdivision (d), the sentence on count 2 was not authorized because the court could not properly designate count 2 as the principal term. Instead the court had to designate count 3 or 4, the other sex offenses, as the principal term and impose a full, separate, and consecutive term for count 2 even though it had a longer term: “[W]hen a defendant is convicted of both violent sex offenses and crimes to which section 1170.1 applies, the sentences for the violent sex offenses must be calculated separately and then added to the terms for the other offenses as calculated under section 1170.1.” (People v. Pelayo (1999) 69 Cal.App.4th 115, 124.)
Additionally, the trial court violated defendant’s Sixth Amendment right to a jury trial by imposing the upper term of eight years on count 2 based on facts that had not been determined by a jury. (People v. Sandoval (2007) 41 Cal.4th 825.) The People concede this error but claim it was harmless because the record contains undisputed evidence that defendant, as the biological grandfather with whom the victim lived, had abused his position of trust and confidence. (People v. Jones (1992) 10 Cal.App.4th 1566, 1577.) In the alternative, the People urge the case be remanded for resentencing under the three-term resentencing scheme. (Sandoval, supra, at pp. 843-858.) We agree the latter is the better course because it permits the court to exercise its discretion on count 2 and, as discussed below, on counts 5 through 8 as well.
Finally, the court’s sentence of full, consecutive, six-year terms on counts 5 through 8 is not in accord with section 667.6 because it is not clear whether the court was acting pursuant to sections 667.6 or 1170.1 or whether it perceived the consecutive sentences as being discretionary or mandatory under section 667.6, subdivisions (c) and (d).
We must decide whether to modify the sentence or remand for resentencing. In People v. Belmontes (1983) 34 Cal.3d 335, the Supreme Court held that “[a] decision to sentence under section 667.6, subdivision (c) is an additional sentence choice which requires a statement of reasons separate from those justifying the decision merely to sentence consecutively.” (Id. at p. 347.) The reasons need not necessarily be different from those used to justify the imposition of consecutive sentences under section 1170.1, but the record must “reflect recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c).” (Belmontes, supra, at p. 348, fn. omitted.)
Here the court never articulated a decision to sentence under section 667.6 and gave no reasons supporting such a decision. Ordinarily, a defendant who did not object in the trial court cannot complain on appeal about a court’s failure to state reasons for a sentencing choice. (People v. Scott (1994) 9 Cal.4th 331, 352-353.) However, we cannot reasonably fault defendant for not objecting to the court’s failure to state reasons for sentencing under section 667.6, when it did not mention the statute and appeared instead to be proceeding under section 1170.1. Therefore, we conclude the preferable course is to remand for resentencing so that the court may expressly decide whether to sentence under section 667.6, and state the reasons for its choice.
6. Disposition
We affirm the judgment but remand for resentencing on count 2 and counts 5 through 8.
We concur: McKinster, Acting P. J., Richli, J.