Opinion
D072551
08-24-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL SALAZAR, Defendant and Appellant.
Patrick Morgan Ford, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS288433) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Remanded with directions and affirmed as modified. Patrick Morgan Ford, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, for Plaintiff and Respondent.
Defendant Daniel Salazar lewdly touched two young victims, when one victim was about five or six years old, and the other victim was about seven or eight. He complains that the victims could not provide adequate details pinpointing the time of the abuse. First, Salazar claims that his right to due process was violated because he was required to defend against charges that occurred sometime within a three-year period for each victim, arguing that that period is too long to reasonably permit him to defend against the allegations. Second, Salazar claims the trial court erred in permitting amendment of the information after the close of the prosecution's case-in-chief to extend the period during which the crimes occurred. Finally, he claims he was entitled to acquittal because the evidence at trial did not show crimes within the period of time alleged in the information.
We find that no error occurred. Salazar had notice at the preliminary hearing of the time range during which the abuse occurred, which is the essential notice that due process requires. Amendment of the information within the time range shown at the preliminary hearing was not an abuse of discretion, even after the close of the case-in-chief. The date when an act occurred is not an element of committing a lewd act on a child and thus not required for substantial evidence of the crime alleged. Prosecution of a child sexual abuser who committed his acts over a lengthy period of time does not violate due process. Salazar suffered no prejudice in any event, as his defense covered the entire range of time alleged.
The conviction of five counts of committing lewd acts on children is affirmed. The trial court failed to impose mandatory fees for court facilities assessments and failed to consider and impose an administrative or booking fee, so the case must be remanded for the court to impose those fees, amend the abstract and forward the amended abstract to the Department of Rehabilitation and Corrections. In all other respects, it is affirmed.
FACTS
A jury found Salazar guilty of three counts of committing lewd and lascivious acts upon a child known as Alex, and two counts of committing lewd and lascivious acts upon a child named Eric. (Pen. Code, § 288, subd. (a).) The jury further found that Salazar had substantial sexual conduct with the children with respect to all counts (§ 1203.066, subd. (a)(8)), and that Salazar committed the offenses against more than one victim with respect to all counts (§ 667.61, subds. (b), (c), (e)(4)). Salazar was also charged with four counts of engaging in sodomy with a child who was 10 years of age or younger (§ 288.7, subd. (a)), but the jury could not reach a verdict on those counts and they were later dismissed. Salazar was subject to a term of 15 years to life on each count due to the true finding that he lewdly touched multiple victims. (§ 667.61, subds. (b), (c), (e)(4).) The trial court sentenced Salazar to a term of 15 years to life, with the other terms of 15 years to life to run concurrently.
Further unspecified statutory references are to the Penal Code.
Salazar Abused Alex Three Times
Alejandro R., who went by Alex, was 11 years old when he testified at trial in June 2017. Alex lived in San Diego with his mother and father until 2012, when his parents divorced. He moved away with his mother in 2012 and lived primarily with her from then on. Alex sometimes spent the night at his grandfather's house when his father, who was in the military, had to stand duty at night. Salazar lived with Alex's grandfather, who was Salazar's stepfather. Salazar and Alex got along well and sometimes watched movies and played video games together.
Salazar sexually abused Alex on three occasions. Salazar inserted his penis into Alex's "butt" on two different days, and on another day he had Alex touch Salazar's penis. Alex thought that these abuses all occurred during one summer, when Alex was five or six years old, which was five or six years before he testified at trial in 2017. All of the abuse occurred at his grandfather's house. Alex was five years old in the summer of 2011 and six years old in the summer of 2012.
Defendant states that Alex was between the ages of three and six when the abuses occurred. That is not an accurate reflection of the record. Alex consistently said he was five or six when the abuse occurred. When talking with a forensic interviewer, Alex initially said he was three years old when the abuse occurred. The interviewer asked, "Three years old?" to confirm his age. Alex replied, "No - no - no - no. Six . . . six. Not three. . . . I was thinking about like three years ago or something."
One night when Alex was five or six, he was sleeping on the floor next to Salazar's bed. Salazar asked Alex to touch Salazar's penis. Alex trusted Salazar and did what he asked. Alex touched Salazar's penis over his boxers. Another time, while Salazar and Alex were playing a video game, Salazar told Alex to sit on Salazar's lap. Alex complied. Salazar pulled down his own and Alex's pants and underwear. Salazar put his penis inside Alex's "butt." The third time, they were lying on the bed together, watching television, when Salazar asked Alex to " 'do this thing' " again. Alex said he did not want to, but Salazar pressured him into it. Salazar told Alex not to tell anyone about his lewd acts. Salazar avoided Alex after these three incidents.
Alex told the forensic interviewer that he was sleeping in Salazar's room. Salazar woke him up in the middle of the night and asked Alex if he wanted to "do this thing," promising that Alex could play video games if he complied with Salazar. Alex's testimony was otherwise consistent: Salazar had Alex sit on his lap and inserted his penis into Alex's anus.
Alex told his father about this abuse in July 2015 when he was about nine years old. Alex's father called his brother and asked him to call Eric's parents. Eric's mother and Alex's father were siblings. Alex never told anyone about this before, not even his mother, who had earlier told Alex that a friend of his had been raped and asked Alex if anything inappropriate had ever happened to him.
A forensic interviewer interviewed Alex on July 17, 2015. Alex said he was six years old when he was abused. He told the interviewer that Salazar put his penis in Alex's anus twice and once made Alex stroke Salazar's penis over his underwear. Each incident occurred at Alex's grandfather's home when Alex was spending the night. A video of the interview was played for the jurors. The forensic interviewer testified that it was more common for children to delay disclosures than to disclose abuse right away.
Defendant repeatedly calls the interviewer an "unlicensed social worker.'' The interviewer acknowledged that she did not have a social worker's license because she was not a social worker. She had, however, 11 years of experience as a forensic interviewer, a masters' degree in psychology, participated in ongoing training, and had conducted over 3000 forensic interviews of children from ages three through 17.
Alex's mother told Alex that Salazar had also sexually abused his cousin, Eric. Alex rarely talked with Eric. They never texted, and did not visit together except when Eric lived in San Diego. He did not talk with Eric about what Salazar had done.
Eric Was Abused Twice
Eric was 14 years old when he testified. He lived with his mother in San Diego from 2005 through 2011. Eric and Alex were cousins and had the same grandfather. Salazar occasionally spent the night at Eric's home. Eric described two incidents when Salazar sexually abused him, both when Salazar was spending the night at Eric's house. The first incident occurred when Eric was seven or eight years old. He and Salazar were lying down in in the guest room watching a movie. Salazar was behind Eric. Salazar pulled down Eric's pajama bottoms and inserted his penis into Eric's anus. The second incident was similar. Salazar and Eric were lying down together in Eric's room watching a movie. There was no specific testimony about what occurred, but the jury inferred that Salazar again put his penis in or on Eric's anus. Salazar told Eric not to tell anyone what he had done. Eric testified that these lewd acts probably occurred within the same year, though he was not sure.
Eric moved from his mother's house to his father's house in 2011. Eric did not tell his mother, or anyone else, about the abuse until July 2015. At that time, Eric's father learned from his ex-wife and ex-brother-in-law that Salazar had abused Alex, Eric's cousin. Eric's father talked with Eric about Alex and asked Eric if anything had happened to him. Eric's father testified that Eric cupped his left hand into a circle and poked his right index finger into the hole. Eric appeared to be very uncomfortable when talking about the abuse, so his father did not ask any more questions.
Eric testified that he never talked with Alex about the abuse. Eric's father never spoke with Alex or Alex's father about the abuse.
Defendant represents throughout his briefing that Alex and Eric were emotionally troubled about their parents' divorces. Alex did have some troubles in school, not connected to the divorce. After the divorce, Alex was comfortable enough with his father to confide in him about the abuse, and he testified he was very open with his mother. Alex's father said that "any child would be heartbroken that their parents are splitting up," but that Alex handled the divorce "[q]uite well." His parents remained active and attentive to him. They explained the divorce to Alex, and Alex "seemed to carry on very well." There was no evidence that Eric was troubled in any way. Eric's parents separated when Eric was about a year and a half old. He said he thought there was no problem with Salazar anymore after he moved in with his father in 2011and moved to a different state, because he had no more contact with Salazar. Eric said the abuse did not affect him after he moved away. Eric had a good, open relationship with his father. Defendant argues that, "[b]y going along with the story, Eric would be able to move in with his father, which is something he always wanted to do, as before, that he only got to see his dad once or twice a month." In fact, however, Eric moved from his mother's house to his father's house in 2011, four years before he disclosed the abuse.
Salazar testified in his own behalf. He was 26 years old at the time of trial, and about 19 to 21 years old when he abused the boys. He denied ever touching Alex inappropriately or ever having sexual intercourse with him. He also denied ever touching Eric inappropriately or ever having sexual intercourse with Eric.
Salazar lived with his mother, stepfather, and sister from 2008 to 2011. In 2010, his family allowed Salazar's friend, Joseph J., to move into their house. Joseph had his own bedroom. But unbeknownst to Salazar's mother, stepfather, and sister, Salazar and Joseph were lovers. Salazar and Joseph both testified that they were always together from 2010 until they broke up in 2013 or so. Joseph said he slept with Salazar every single night, even when Salazar spent the night at Eric's house. Salazar kept this relationship secret from Eric's family, as well.
Salazar stated that Alex was at Salazar's home occasionally from 2010 to 2013 and sometimes spent the night. Alex always slept with his grandfather. Salazar said he never slept in the same room as Alex.
Salazar claimed that he had a "fairly close" relationship with Alex's father, until March 2015, when Salazar told Alex's father that he was gay. Salazar said that Alex's father changed his attitude, was distant with Salazar, and had no more contact with him. Alex's father, however, testified that he was very happy for Salazar and had no problem with Salazar's sexuality. He thought that Salazar's mother "took it a little hard," but was not aware of any other negative reactions to Salazar in the family. Alex's father talked with Eric's father only once, after learning that Eric had also been abused. There was no evidence that either Alex or Eric knew or cared that Salazar was gay. In short, there was no evidence, other than Salazar's self-serving speculation, of any anti-homosexual bias against him.
Salazar's mother and sister both testified that when Alex spent the night, he always stayed with his grandfather and never with Salazar. Two witnesses described Salazar as having a reputation for being truthful and for having appropriate relationships with children.
Salazar presented an expert witness who described how questioners could suggest answers to children, and how a sex abuse investigation could be contaminated. The expert criticized the forensic interview of Alex, pointing out that in one instance the forensic interviewer suggested an answer to Alex by asking if Salazar was insisting when Alex was struggling with a word. The expert did not point to any questions that suggested to Alex what Salazar's actions were.
DISCUSSION
I. The Allegation of a Three-Year Range in Which the Offenses Occurred Did Not Violate Salazar's Right to Due Process
The right to due process of law requires that one accused of a crime must be advised of the nature and cause of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered against him at trial. (People v. Jones (1990) 51 Cal.3d 294, 317 (Jones); People v. Fernandez (2013) 216 Cal.App.4th 540, 554 (Fernandez).) Salazar contends that his right to due process was violated because he was charged with having committed three lewd touchings of Alex and two lewd touchings of Eric over a range of years for each boy without specified dates. We find that no error occurred. Salazar had the notice and opportunity to defend against the charges that due process requires. And he amply, if not successfully, defended himself by thoroughly cross-examining the witnesses, denying the charges, and presenting an alibi witness who testified that he was constantly with Salazar over the entire time range. We find no possible prejudice to Salazar.
In Jones, the Supreme Court recognized the difficult problems of proof when a young victim has been molested, because a young victim—or even an adult—"may have no practical way of recollecting, reconstructing, distinguishing or identifying by 'specific incidents or dates' all or even any such incidents." (Jones, supra, 51 Cal.3d at p. 305.) The court balanced these problems of proof with the defendant's right to fair notice of the charges against him and a reasonable opportunity to defend against those charges, and concluded that "given the availability of the preliminary hearing, demurrer and pretrial discovery procedures, the prosecution of child molestation charges based on generic testimony [without details of time or place] does not, of itself, result in a denial of a defendant's due process right to fair notice of the charges against him." (Id. at p. 318.)
Salazar's specific argument is that it is unfair to require him to defend against a three-year period during which the offenses could have occurred—from 2010 through 2013 for Alex and from 2008 through 2011 for Eric. The Supreme Court in Jones emphasized that a defendant obtains the notice that due process requires from the evidence at the preliminary hearing. (Jones, supra, 51 Cal.3d at p. 312.) A defendant may not be convicted of any act or offense unless he had notice of the charges from the preliminary examination. (Ibid.) Salazar had sufficient notice from the preliminary hearing of the range of time in which the offenses occurred, and if necessary he could have demurred or sought additional pretrial discovery if he had insufficient notice. Moreover, both the California and federal courts have found no due process violation in charging defendants with continuous sexual abuse (§ 288.5, subd. (a)), which is often alleged to span even more than three years. (People v. Gear (1993) 19 Cal.App.4th 86, 94-96 [statute proscribing continuous sexual abuse of a child did not violate defendant's right to due process]; Brodit v. Cambra (9th Cir. 2003) 350 F.3d 985, 988-989 [no due process violation for defendant charged with sexual acts on unspecified dates over period of two and a half years].) In People v. Garcia, for example, the defendant was charged with four counts per year over a four-year period, from 2007 through 2011. (People v. Garcia (2016) 247 Cal.App.4th 1013, 1017 (Garcia).) Due process was not an issue on appeal in Garcia, but the case is an example of the lengthy time ranges that may be alleged in cases involving the sexual abuse of children.
Salazar was not actually faced with a three-year period for each victim. At trial, Alex consistently said he was about five or six when Salazar abused him, that the abuse occurred on three different days but all within the same summer. As Salazar points out, Alex was hesitant and tentative in his statements of the timing, but there was no evidence at trial that the abuse occurred any time other than during the summer months either when he was five or when he was six years old. Alex said at the preliminary hearing that he thought he was four or five when Salazar abused him, but he did not repeat that at trial. The jury had no reason to think that the abuse occurred at any time other than the summer he was five or the summer he was six. Similarly, Eric said consistently, if hesitantly, that he was abused when he was about seven or eight years old. He was 14 years old at trial in 2017, so the abuse occurred in 2010 or 2011. Again, there was no basis for the jury to consider any time other than the years when Eric was seven and eight. The actual range for each child was two years or less.
The Supreme Court in Jones discussed the defendant's right to present a defense when faced with generic testimony, which raises issues comparable to the problem of defending against a long time range. The actual date of the crime is not relevant when the defendant has access to the child over a long period of time. Child molestation cases often, as here, "center[] on a basic credibility issue—the victim testifies to . . . molestations and the defendant denies that any wrongful touchings occurred." (Jones, supra, 51 Cal.3d at p. 319.) "If credible, [the defendant's] testimony should prevail over the unspecific assertions of his young accuser. In some cases, the very nonspecificity of the child's testimony, especially if uncorroborated, may offer defense counsel fertile field for challenging the child's credibility." (Id. at p. 320.) Salazar's attorney effectively cross-examined both children, drawing out the inconsistencies in their testimony without appearing to bully them. Defense counsel pointed out in argument all the hesitancies and lack of detail from the children. Importantly, Salazar presented a defense to the entire range of time from 2010 through 2013, testifying that Joseph slept with Salazar every night, including at Eric's house, since Joseph moved in with Salazar's family in 2010. Even though the relationship had broken up before 2017, Joseph testified under oath and confirmed his ex-boyfriend's alibi. This covered the entire time period from 2010 through 2013, including the times when Salazar spent the night at Eric's house.
We find no error and no possible prejudice to Salazar as a result of the three-year time ranges alleged here. Salazar had a fair trial and was able to defend himself, including providing a witness who testified that he was always with Salazar and slept with him every night from 2010 through 2013. We cannot find that Salazar was hampered in his defense by the allegations that he lewdly touched Alex between 2010 and 2013 and lewdly touched Eric between 2008 and 2011.
II. The Trial Court Did Not Err in Permitting the People to Amend the Information After They Had Rested Their Case-in-Chief
We find that the trial court did not abuse its discretion in permitting the People to amend the information, extending the date range during which the offenses against Alex may have occurred, even after the close of the People's case-in-chief. Salazar had notice of the date range from the testimony at the preliminary hearing, which provided " 'the touchstone of due process notice to a defendant.' " (Jones, supra, 51 Cal.3d at p. 312, quoting People v. Jeff (1988) 204 Cal.App.3d 309, 342.)
The People moved to amend counts 1 through 5 of the information, all relating to Alex, after resting their case-in-chief, to move the beginning period of the abuse of Alex to one year earlier. The second amended information alleged that Salazar abused Alex from September 18, 2010 through September 16, 2013, instead of from the period of September 18, 2011 to September 16, 2013 that was alleged in the first amended information. Salazar objected, arguing he was prejudiced because he was not able to cross-examine the prosecution's witnesses on the new date range. The trial court found no prejudice to Salazar and permitted amendment to the information. The court noted that Salazar's witnesses had discussed the period from 2010 through 2013, providing him with a defense for that whole period. Salazar could not identify any new witnesses that he could call or new evidence he could submit, or different questions that he would have asked Alex. The trial court's decision to allow an amendment is reviewed for abuse of discretion. (People v. Hamernik (2016) 1 Cal.App.5th 412, 424; People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1581.) The trial court did not abuse its discretion when it permitted amendment of the information after the close of the People's case.
A trial court may allow amendment of the accusatory pleading to correct or make more specific the factual allegations of the offense charged at any stage of the proceeding, up to and including the close of trial, so long as the amended information does not " 'charge an offense not shown by the evidence taken at the preliminary examination.' " (People v. Goolsby (2015) 62 Cal.4th 360, 367 (Goolsby), quoting § 1009 ; People v. Graff (2009) 170 Cal.App.4th 345, 360 (Graff); Fernandez, supra, 216 Cal.App.4th at pp. 554-555.) If the substantial rights of the defendant would be prejudiced by the amendment, the court can grant a continuance to permit the defendant to respond to the amended information. (Goolsby, at pp. 367-368.) Seemingly late amendments are permitted as long as they do not change the offenses charged, nor charge an offense not shown by the evidence taken at the preliminary examination. (Fernandez, at p. 554.) The court in Arevalo-Iraheta discussed a federal case which criticized a lower court for permitting an amendment adding a separate and different charge after the defendant had presented a defense that included evidence inculpating him in the newly added charge. (Arevalo-Iraheta, supra, 193 Cal.App.4th at p. 1584, discussing Gray v. Raines (9th Cir. 1981) 662 F.2d 569, 570-571.) That is not the situation here, where the information was amended only in respect to the time range in which the offenses were alleged to have occurred. No extra charges were added. " '[A]n information plays a limited but important role: it tells a defendant what kinds of offenses he is charged with (usually by reference to a statute violated), and it states the number of offenses (convictions) that can result from the prosecution. But the time, place and circumstances of charged offenses are left to the preliminary hearing transcript; it is the touchstone of due process notice to a defendant.' " (Hoffman v. Superior Court (2017) 16 Cal.App.5th 1086, 1092.)
Section 1009 provides in part, "The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings . . . . An 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."
The second amended information changed only the dates when the offenses may have occurred, not the nature of the offenses themselves. The timing of a crime is generally not an element of an offense, and thus the information need not provide notice of the specific time or place of the offense. (Jones, supra, 51 Cal.3d at p. 317; § 955.)
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 time is a material ingredient in the offense."
Salazar was given notice of the earlier date range at the preliminary hearing. At the preliminary hearing, Alex said that he was born on September 17, 2005. He described three occasions when Salazar sexually abused him, and guessed or estimated that these crimes occurred on three different days, all within one summer, when he was four or five years old. Alex was four years old in the summer of 2010 and five years old in the summer of 2011.
At trial, Alex testified that Salazar abused him when Alex was five or six years old. He thought that these abuses all occurred during one summer. Alex was five years old during the summer of 2011 and six years old during the summer of 2012, conforming with the dates in the second amended information of September 18, 2010 through September 16, 2013. Salazar had notice of these dates from the time of the preliminary hearing, and was not prejudiced because he knew that he had to defend against charges during that time period.
Alex's birth date was not in evidence at the trial. Alex testified that he was 11 years old when testifying at trial in June 2017. The jury would have thought that Salazar abused Alex in the summers of 2011 or 2012 due to the testimony.
As we noted above, there was no possible prejudice to Salazar because Joseph testified that he was always with Salazar and slept with him every night since moving in with Salazar's family in 2010. This covered the entire time period over which the crimes were alleged. We find that the trial court did not abuse its discretion in permitting the People to amend the information after resting its case in order to extend the time range in which the offenses occurred.
III. Salazar's Motion for Acquittal Was Properly Denied
Salazar moved for acquittal (§ 1181.1) at the close of the People's case-in-chief, claiming there was insufficient evidence to show that the offenses occurred during the dates alleged in the information. The trial court found sufficient evidence supported the charges within the time periods alleged in the information and denied the motion. Based on an independent review of the record, we also find the evidence presented in the case-in-chief supported the charges. The date when an offense occurred is not an element of the offense of committing a lewd act on a child. (§ 288, subd. (a).) The People had no obligation to prove when the offenses occurred, as long as the statute of limitations was not at issue, and the defendant had adequate notice of the charges against him from the evidence at the preliminary hearing. Both conditions were met here. Sufficient evidence in the case-in-chief supported the charges that Salazar lewdly touched both Alex and Eric.
As noted above, Salazar was charged with four counts of sodomy of a child (§ 288.7, subd. (a)), as well as the five counts of committing a lewd act on a child under 14 (§ 288, subd. (a)). The jury could not reach a verdict on the sodomy charges and they were eventually dismissed. We confine our discussion to the lewd acts on which the jury found Salazar guilty.
" 'The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.' " (People v. Stevens (2007) 41 Cal.4th 182, 200 (Stevens), citation omitted.) The court must determine whether the prosecution has presented sufficient evidence to submit the matter to the jury for its determination. (Ibid.) The standard applied by the trial court is the same as that applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction—that is, " ' "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." ' " (Ibid., citations omitted.) The sufficiency of the evidence is tested at the point the motion is made. We review a trial court's ruling on a motion for acquittal as a question of law subject to de novo review. (Ibid.; see also People v. Velasquez (2011) 201 Cal.App.4th 219, 229 (Velasquez).)
The elements of committing a lewd act on a child are that the defendant "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." (§ 288, subd. (a).) It is not disputed that Alex and Eric were each under the age of 14 when Salazar lewdly touched them. The date that the offense occurred is not otherwise an element of the crime. (People v. Peyton (2009) 176 Cal.App.4th 642, 660 (Peyton).) The evidence is not insufficient if it shows that the offense occurred on a date not identified in the information. (Garcia, supra, 247 Cal.App.4th at p. 1022.) The details of a child molestation charge—including date and place—are not elements of the offense and are not necessary to sustain a conviction. (Jones, supra, 51 Cal.3d at p. 315.) The victim must describe the general time period in which the acts occurred only to assure the acts were committed within the applicable limitation period, and to show the age of the victim. (Id. at p. 316.)
Peyton is on point. In Peyton, the defendant claimed insufficient evidence to support the charged offenses because the trial evidence showed that the four charges occurred one year earlier than the date alleged in the second amended information. (Peyton, supra, 176 Cal.App.4th at p. 660.) Our sister court in Division Two rejected that claim because the date on which an offense was committed is not an element of the offense, and "the evidence is not insufficient merely because it shows the offense was committed on [a] date [other than the date stated in the accusatory pleading]." (Ibid.) The defendant had not shown that he was prejudiced by the variance between the date alleged and the evidence. (Id. at pp. 660-661.) The appellate court found that sufficient evidence supported the conviction despite the variance between the date shown in the information and the evidence at trial. (Ibid.)
Similarly, in Garcia, the defendant claimed there was insufficient evidence to support his convictions because the evidence did not identify which lewd acts occurred during each of the four one-year periods alleged in the information. (Garcia, supra, 247 Cal.App.4th at pp. 1017, 1019.) Relying on section 955, the appellate court found the time at which an offense was committed need not be stated in the accusatory pleading. (Id. at p. 1022; see fn. 7, infra.) The court characterized the defendant's contention as "nothing more than a pleading error." (Ibid.) In this case, the pleading error was later corrected by the second amended information. Permitting this amendment after the close of the People's case and after the motion for acquittal was denied was not a "concession" that the evidence did not support the charges, as Salazar contends. It was a concession that the information did not conform to the evidence presented at trial and at the preliminary hearing. Amendment of the information after the case-in-chief and after denial of the motion for acquittal was proper, as we found infra. (See Goolsby, supra, 62 Cal.4th at p. 367.)
Salazar's reliance on Velasquez is unavailing. In Velasquez, the appellate court found error in the trial court's denial of a motion for acquittal on four counts because there was no evidence of the substantial elements of the crimes alleged—criminal threats and attempts to dissuade a witness. The only evidence relating to those allegations was a detective's affirmative answer when asked if the victim reported any additional threats by the defendant, along with evidence of phone calls to the victim on the dates alleged. (Velasquez, supra, 201 Cal.App.4th at pp. 229-230.) The Velasquez decision did not depend on the dates alleged in the information. It was based on the lack of evidence of the substance of the crimes. (Ibid.)
The one-year variance between the dates of the evidence and the dates alleged in the accusatory pleading, between the summer of 2011 and the summer of 2012, is the same as the length of the variance in Peyton, and, as in Peyton, we find that variance in time was not a basis for acquittal of Salazar. The evidence presented in the case-in-chief was sufficient to support the charges. The court's later permission to amend the information was not necessary, but it corrected the pleading error that the People had made.
IV. The Trial Court Failed to Consider and Impose Fees
The trial court neglected to impose the mandatory court facilities assessment of $30 for each conviction, for a total of $150, pursuant to Government Code section 70373, subdivision (a). Nor did the court consider or impose the administrative or booking fee to which Salazar may be subject under sections 29550, 29550.1, or 29550.2. Those fees depend on which agency booked Salazar into county jail. We remand the case for the trial court to consider and impose the fees that are mandatory.
DISPOSITION
The matter is remanded and the trial court is directed to impose the mandatory court assessment fees and to determine the booking fee. The trial court is further directed to modify the abstract of judgment accordingly and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. AARON, J.