Opinion
G044772 Super. Ct. No. 07NF1385
01-24-2012
THE PEOPLE, Plaintiff and Respondent, v. RAMON BORJON, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. Affirmed.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Ramon Borjon was convicted of seven counts of sexual crimes committed against children, including four counts of committing a forcible lewd act on a child under the age of 14, one count of committing a lewd and lascivious act on a child under the age of 14, and two counts of forcible rape. There were two victims involved in the charged crimes, identified as Jane Doe #1 and Jane Doe #2, respectively.
Borjon does not challenge the convictions themselves, but instead challenges the court's decision to allow the information to be amended, after the verdict, to correct a clerical error in specifying the precise subdivision of Penal Code section 667.61 which authorizes an enhanced sentence when a charged offense is committed against multiple victims. Although the portion of the information which invoked Penal Code sections 667.61, the enhanced sentence provision, did state in words, that Borjon was alleged to have committed his crimes against multiple victims, that allegation was followed by an additional pinpoint citation to Penal Code sections 667.61, subdivision (e)(1), which actually applies to cases involving kidnapping. The multiple victims circumstance was at that time found in subdivision (e)(5) of section 667.61.
We find no error in the court's decision to allow the amendment. Borjon was not denied notice of the charged enhancement, since the multiple victims circumstance was clearly spelled out in the information as the basis for invoking the enhancement statute. Additionally, the error in specifying the precise statutory subdivision applicable to multiple victims was obviously clerical in nature - there being no suggestion of kidnapping in this case - and Borjon was not prejudiced by the court's decision to allow the amendment - indeed, it appears he didn't notice the discrepancy until the court itself pointed it out prior to sentencing. Consequently, the court did not abuse its discretion in ordering the amendment.
FACTS
The initial information, filed in August of 2008, charged Borjon with a total of seven sexual crimes, including: (1) three counts of committing a forcible lewd act on a child under 14, specifically Jane Doe #1, between October 1, 2006, and October 29, 2006; (2) a count of committing a lewd act against a child under 14, specifically Jane Doe #2, between October 2, 2000, and October 1, 2001; (3) an additional count of committing a forcible lewd act on a child under the age of 14 on Jane Doe #2, between October 2, 2001, and October 1, 2002; and (4) two counts of forcible rape of Jane Doe #2, occurring between October 2, 2002, and October 1, 2003, and between October 2, 2003, and January 24, 2004, respectively.
Additionally, the information specified, under the heading "Other Allegation[s]" that "[a]s to Count(s) 4, it is further alleged pursuant to Penal Code sections 667.61 (b)/ (e), that in the commission of the above offense, defendant [Borjon] committed an offense specified in Penal code section 667.61(c) against more than one victim."
Penal Code section 667.61, subdivision (b), provides that a person who is convicted of an offense specified in subdivision (c) of the statute, committed under one of the circumstances specified in subdivision (e) of the statute, "shall be punished by imprisonment in the state prison for 15 years to life." Among the offenses specified is the commission of a lewd and lascivious act in violation of Penal Code section 288, subdivisions (a) or (b) (Pen. Code, § 677.61, subds. (c)(4) & (c)(8)); and among the circumstances specified is that "[t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim." (Former Pen. Code, § 667.61, subd. (e)(5), now Pen. Code, § 667.61, subd. (e)(4).)
An amended information was filed on June 8, 2009. It alleged the same seven counts, but altered the "Other Allegation[s]" section to both expand the number of counts to which the multiple victims allegation would apply and include notices that the prosecution intended to proceed pursuant to specified Evidence Code sections not relevant here.
The expanded multiple victims allegation in the amended information stated: "As to Count(s) 1, 2, 3, 4 and 5, it is further alleged pursuant to Penal Code sections 667.61(b)/(e)(1), that in the commission of the above offense, defendant [Borjon] committed an offense specified in Penal Code section 667.61(c) against more than one victim."
Thus, while the amended information retained the same verbal explanation of the enhancement allegation ("defendant [Borjon] committed an offense specified in Penal Code section 667.61(c) against more than one victim"), it also made a more specific reference to Penal Code section 667.61, subdivision (e) than did the original information (referencing "sections 667.61(b)/(e)(1)" rather than merely "sections 667.61(b)/(e)") but did so incorrectly, since Penal Code section 667.61, subdivision (e)(1) refers to a kidnapping circumstance, rather than a multiple victims circumstance. The case went to trial without further amendment of the information.
It is undisputed that the jury was instructed on the multiple victims allegation - specifically: "[i]f you find the defendant guilty of two or more sex offenses, as charged in Counts 1, 2, 3, 4 and 5, you must then decide whether the People have proved the additional allegation that those crimes were committed against more than one victim." The jury was given no instruction relating to kidnapping. Moreover, the verdict forms provided to the jury made no reference to any purported kidnapping circumstance - instead, the forms simply asked the jury to find that "Defendant committed these offenses on more than one victim within the meaning of Penal Code sections 667.61(b)/(e)." It is also undisputed that that the jury made a finding that the multiple victim allegation was true as to each of the five counts in which it was charged.
It was only after the jury returned its verdict, and prior to sentencing, that the court itself pointed out that "it appears . . . the District Attorney made a filing error." The court noted the multiple victim circumstance was referenced in subdivision (e)(5), rather than (e)(1) of Penal Code section 667.61, and invited the prosecution to make a motion to correct the information to conform to proof. The prosecution did so, and although Borjon objected, the court granted the motion. The court then proceeded to sentence Borjon to consecutive sentences of 15 years to life on counts 1 through 5, plus consecutive determinate middle terms of six years on counts 6 and 7 in accordance with the amended information.
DISCUSSION
Borjon's sole contention on appeal is that the court erred in allowing the prosecution to amend the information to conform to proof after the jury returned its verdict but prior to sentencing. He acknowledges that Penal Code section 1009 allows the court to order or permit an amendment to a charging document "at any stage of the proceedings . . .," but points out that an amendment will not be permitted if it would prejudice a defendant's substantial rights. (People v. Birks (1998) 19 Cal.4th 108, 129.) However, Borjon fails to explain how the amendment allowed in this case actually caused any prejudice to his substantial rights. The closest he comes to making such a claim is his assertion that the information's "incorrect reference to the subdivision involving kidnapping created an ambiguity which . . . may affect the defense strategy on how to challenge the [enhancement] allegation." (Italics added.) He does not actually claim it did affect his strategy in this case.
Indeed, the record here belies any suggestion that Borjon was actually misled by any purported ambiguity in the enhancement allegation. The amended information set forth in concise words that the application of the enhancement statute was triggered by the fact Borjon committed his offenses against multiple victims - and thus Borjon neither attempted to address any implied factual allegation of kidnapping, nor objected when the jury was instructed to make a factual finding as to multiple victims. The facts relied upon by the prosecution in invoking the enhanced sentencing provisions of Penal Code section 667.61were simply never in question.
Borjon also points out that "A defective accusatory pleading does not give a defendant fair notice that he may be sentenced based on that circumstance" and relies upon People v. Mancebo (2002) 27 Cal.4th 735, for the proposition that the circumstances justifying an enhancement under Penal Code section 667.61 must be expressly pleaded. However, in making that point, Borjon simply fails to acknowledge that the pleading in this case actually did that - giving him fair notice of the circumstance relied upon to justify the enhancement by literally spelling out that the circumstance was his commission of the specified crimes against "more than one victim." In Mancebo, by contrast, the court relied upon multiple victims as a basis for a Penal Code section 667.61 sentence enhancement, notwithstanding the fact the prosecution had not alleged it at all, because the enhancement which had been alleged (use of a firearm) was being relied upon to support a separate sentence enhancement, and could not be used for both. In other words, the Mancebo trial court simply added an additional enhancement allegation the prosecution had never raised. That did not occur here.
People v. Miralrio (2008) 167 Cal.App.4th 448, is more on point. In Miralrio, like this case, the prosecution had simply committed a clerical error when it amended the information - there, the error was the inadvertent limiting of the counts to which the enhancement allegation applied. The error was discovered after the close of evidence, but before the parties made their final arguments to the jury, and the trial court allowed the prosecution to amend the information to conform to proof. The appellate court affirmed that decision, noting there was no basis to find an abuse of discretion, since the record supported the conclusion defendant had not been prejudiced by the late amendment.
Of course, Borjon contends Miralrio is distinguishable, because the error in that case was corrected prior to the verdict, rather than after. Specifically, he claims that Penal Code section 1009's allowance of amendments "at any stage of the proceedings" cannot include postverdict amendments. However, he makes no effort to explain why that would be. Instead of pointing to any problem inherent in allowing a postverdict (but presentencing) amendment, let alone any problem actually caused by allowing it in this case, Borjon simply asserts the statute "should not be interpreted so broadly."
What Borjon does not do is explain why the timing of the amendment in this case would materially distinguish it from what was allowed in Miralrio. While there may be circumstances in which a post-verdict amendment could create problems - such as when an earlier amendment would have changed the way the parties argued the case to the jury, or when the amendment renders the information inconsistent with the instructions and verdict forms provided to the jury - we can perceive none in this case. Here, the amendment simply conformed the information to not only the proof, but also to the manner in which the parties had already submitted the case to the jury.
Stated simply, there was no prejudice to Borjon in allowing the late amendment of the information in this case, and thus the court did not abuse its discretion by doing so. The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR:
O'LEARY, J.
MOORE, J.