Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF131791. Jeffrey Prevost, Judge. Affirmed in part as modified and reversed in part.
Stephen S. Buckley, 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, Assistant Attorney General, and Barry Carlton and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J
A jury found defendant and appellant James Victor Davis guilty of committing a lewd and lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)) and misdemeanor false imprisonment (§ 236), as a lesser included offense of kidnapping (§ 207). Defendant was thereafter placed on probation on various terms and conditions. On appeal, defendant contends (1) the trial court erred when it granted the People’s motion to amend the information to add a kidnapping charge; and (2) seven of his probation conditions are vague and should be modified to include a knowledge requirement. We agree with defendant that the court erred in granting the People’s motion to amend the information to include a kidnapping charge. We also conclude that some, but not all, of the contested probation conditions should be modified to include a knowledge requirement.
All future statutory references are to the Penal Code unless otherwise stated.
The jury was unable to reach a verdict on count 3 (misdemeanor sexual battery on a second victim), and that charge was later dismissed by the court in the interest of justice. We will not recount the facts associated with that charge.
I
FACTUAL BACKGROUND
Jane Doe, eight years old at the time, lived in an apartment complex with her parents in Moreno Valley. Defendant also lived in the complex and had spoken to Jane on several occasions. On one particular morning, Jane went to defendant’s apartment and knocked on his front door. Defendant let her inside. Defendant showed her around the apartment and then took her into his bedroom, where they sat on the bed. Defendant told Jane that he was a massage therapist and offered to give her a massage. Jane took off her shoes, and defendant massaged her feet. During the massage, defendant lifted her feet to his mouth and kissed each of them three times. Defendant then asked her if she wanted to take a shower. Jane thought that was “weird” and said no.
Jane told defendant that she was hungry, and defendant took her to a restaurant. Defendant did not ask permission from Jane’s parents to take her to the restaurant. As they walked to the restaurant, defendant held Jane’s hand.
After eating at the restaurant, they walked to a nearby grocery store located in the same shopping center, and defendant bought Jane some cereal, milk, candy, and gum. As they were walking back to the apartment complex, they were stopped by police officers. The restaurant and the grocery store were about 10 minutes’ walking distance from the apartment complex.
Investigator Steven Buenting interviewed Jane and defendant regarding the incident. Videotapes of both interviews were played for the jury. Jane related facts in the interview that were essentially the same as her trial testimony.
Defendant testified on his own behalf at trial. He stated that he practiced the Agape faith, that he was a highly trained massage therapist, that he possessed many spiritual healing powers, that he had lived multiple lives, and that he was clairvoyant. Defendant admitted that he had massaged Jane’s feet and hands but claimed he thought it would be helpful and healing and for medical purposes. Defendant also admitted kissing Jane’s feet but explained that it was because he thought it would heal them. Defendant also admitted brushing the hair out of Jane’s face but denied asking her to take a shower and denied acting in a sexual manner to arouse either of their sexual desires. He explained that he had bought Jane breakfast and the items at the grocery store out of generosity.
Prior to trial, defense counsel expressed a doubt as to defendant’s competency, and the court instituted competency proceedings. The court subsequently found defendant competent to stand trial.
II
DISCUSSION
A. Amendment to Information
Defendant claims that the trial court erred in granting the People’s motion to amend the information to include a kidnapping charge because there was no evidence at the preliminary hearing to support the charge.
The evidence presented at the preliminary hearing was essentially the same as the trial testimony. The evidence established that Officer Kevin Brooks responded to a report of a missing child. When he responded, he saw Jane walking with defendant. They were carrying two plastic bags containing milk, cereal, toothpaste, gum, candy, and a toothbrush. Jane told the officer that she and defendant had gone to the store, that defendant had bought her the items in the bag, and that they were on their way back to the apartment complex. Officer Brooks testified that Jane “wasn’t upset” but stated that he was trying to keep her calm, as she appeared a little nervous about “why the police were involved....”
Later, Jane told Officer Steven Buenting that on the morning of the incident, before they went to the store, she had exited her apartment without telling her parents and walked “straight over to” defendant’s apartment. While in defendant’s apartment, Jane stated that defendant had massaged her feet, hands, and head. She also stated that defendant had told her that he thought she was pretty and then kissed her feet three times. Defendant asked her if she wanted to take a shower, and she said no. Defendant also stated that if she came back to his apartment the next day, he would take her to the store to buy her a cat. Defendant then asked her if she wanted to get something to eat, and Jane agreed. As they were leaving the apartment, Jane went to retrieve her jacket, but defendant told her she could leave it there. Jane and defendant then walked to the restaurant, and defendant bought her breakfast. After breakfast, defendant took Jane to a grocery store and bought her several things before walking back to the apartment complex.
None of the witnesses at the preliminary hearing testified that defendant had used physical force to take Jane to the restaurant or the grocery store, that defendant had moved Jane a “substantial distance,” or that defendant had an illegal intent in the movement. (See Judicial Council of California Criminal Jury Instructions No. 1201 [defining elements of kidnapping].)
A week after the preliminary hearing, the People filed an information, charging defendant with committing lewd and lascivious acts upon a child under 14 (§ 288, subd. (a)). The day before trial, the prosecutor moved to amend the information to include a kidnapping charge.
Defense counsel objected, arguing the People had never previously provided any notice or given any indication that any amendment to the information might be forthcoming, that the preliminary hearing did not support the kidnapping charge, that the amendment was untimely, and that adding the new charge would violate defendant’s constitutional rights. Defense counsel also stated that filing the amendment forced him to make an unreasonable choice between preserving defendant’s right to a speedy trial and his right to effective assistance of counsel.
The People responded that the kidnapping charge was a continuation of defendant’s intent to commit the lewd acts and was supported by the general facts presented at the preliminary hearing, which provided defendant notice and time to prepare his defense.
After hearing the parties’ arguments, the trial court reluctantly granted the motion to amend the information, noting it was “quite concerned... that [defendant] may have been prejudiced.” The court stated several times during the proceedings that it was “real concerned” about granting the amendment and that it was “real troubled” about whether sufficient evidence existed to send the kidnapping charge to the jury. Nonetheless, the court allowed the amendment and denied defendant’s motion to dismiss the charge pursuant to section 1118.1.
As the court in People v. Burnett (1999) 71 Cal.App.4th 151 (Burnett) observed, “Article I, section 14, of the California Constitution provides in pertinent part: ‘Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.’ Our Constitution thus requires that ‘one may not be prosecuted in the absence of a prior determination of a magistrate or grand jury that such action is justified.’ [Citation.] ‘Before any accused person can be called upon to defend himself on any charge prosecuted by information, he is entitled to a preliminary examination upon said charge, and the judgment of the magistrate before whom such examination is held as to whether the crime for which it is sought to prosecute him has been committed, and whether there is sufficient cause to believe him guilty thereof. These proceedings are essential to confer jurisdiction upon the court before whom he is placed on trial.’ [Citation.] [¶] Section 739 provides in pertinent part: ‘When a defendant has been examined and committed..., it shall be the duty of the district attorney... to file in the superior court... an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.’ ‘“[A]n information which charges the commission of an offense not named in the commitment order will not be upheld unless (1) the evidence before the magistrate shows that such offense was committed [citation], and (2) that the offense ‘arose out of the transaction which was the basis for the commitment’ on a related offense. [Citations.]”’ [Citation.]” (Id. at p. 165.)
The applicable statute is section 1009, which authorizes the district attorney to amend any accusatory pleading without leave of court before the defendant pleads or a demurrer is sustained. That section continues 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....” Section 1009, however, also provides that “[a]n indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.” (See also Burnett, supra, 71 Cal.App.4th at p. 165.) It is noteworthy that, although the above discussion implicates due process considerations, section 1009 and Article I, section 14 of the California Constitution set forth governing California law.
Section 1009 further provides in relevant part: “The defendant shall be required to plead to such amendment or amended pleading forthwith, or, at the time fixed for pleading, if the defendant has not yet pleaded 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. 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.” (Italics added.)
Burnett also observed, “Many cases illustrate the rule that a defendant may not be prosecuted for an offense not shown by the evidence at the preliminary hearing or arising out of the transaction upon which the commitment was based. In People v. Fyfe (1929) 102 Cal.App. 549, 553, 555 [283 P. 378], upholding the trial court’s dismissal of charges not shown by the evidence at the preliminary hearing, this court stated: ‘The clear purpose of these enactments is to give the accused a preliminary hearing either before a grand jury or before a committing magistrate, and to deny to the district attorney the right to force a defendant to trial before a jury upon an information which is not within the scope of the evidence taken. [¶]... [¶]... In declaring that an information “cannot” be amended so as to charge an offense not shown by the evidence taken at the preliminary examination, the terms of the section are mandatory. They are in whole harmony with the provisions of section 8 of article I of the Constitution [now section 14] requiring an examination and commitment by a magistrate as a prerequisite to the filing of an information by the district attorney.’
“In People v. Kellin (1962) 209 Cal.App.2d 574 [25 Cal.Rptr. 925], the defendant was charged with grand theft on or about November 10, 1960; the evidence at the preliminary hearing showed theft of a $2,093 check on November 10, 1960. At trial, the prosecution offered evidence of theft of three additional checks on October 23 and December 8. After the prosecution’s case, the district attorney successfully moved to amend the information to charge theft ‘“on or about the 28th day of October through the 28th day of December, 1960.”’ [Citation.] Reversing the conviction, Kellin held the amendment ‘allowed the defendant to be charged and perhaps convicted of an offense not shown by the evidence at the preliminary examination.’ [Citation.] The court noted that each of the checks represented a ‘separate and distinct transaction,’ not related to the check which was the basis of the order of commitment after the preliminary hearing and offered to show a distinct theft. [Citation.]
“In People v. Winters (1990) 221 Cal.App.3d 997 [270 Cal.Rptr. 740], the defendant was charged with possession for sale of methamphetamine and waived his right to a preliminary hearing. During trial, the prosecution was permitted to amend the information to add a charge of transportation of methamphetamine. The appellate court reversed the transportation conviction, even though the evidence showed this offense arose out of the same incident as the possession charge: ‘We acknowledge that respondent’s motion to amend the information to add a count for transportation of methamphetamine may have come as no surprise to appellant and would have conformed the information to the proof at trial, as respondent argues here and argued below. It seems to us that is not the point nor helpful to respondent. Section 1009 specifically proscribes amending an information to charge an offense not shown by the evidence taken at the preliminary hearing. This rule has remained virtually unchanged for over 80 years.’ [Citation.] In Winters, because there was no preliminary hearing, the prosecution could not amend the information to add a new charge.” (Burnett, supra, 71 Cal.App.4th at pp. 165-167.) Burnett cites additional supportive cases.
As mentioned, section 1009 prohibits the amending of an information so as to charge an offense not shown by the evidence taken at the preliminary examination. A trial court has no “discretion” to amend an information so as to charge an offense not shown by the evidence at the preliminary examination. Moreover, it is, as a matter of law, irrelevant whether a defendant is prejudiced by being prosecuted for an offense not shown by the evidence at the preliminary hearing. A conviction for an offense not shown by the evidence at the preliminary hearing is reversible per se, without analysis of prejudice. (Burnett, supra, 71 Cal.App.4th at p. 177.)
To determine whether section 1009 was violated in the present case, we must determine whether the amended kidnapping offense was shown by the preliminary hearing evidence. There was, as our factual summary reveals, simply no evidence presented at the preliminary hearing that defendant committed the offense of kidnapping. For all the preliminary hearing evidence reflects, defendant may have bribed Jane into going to the restaurant and store and committed a lewd and lascivious act, but there was no preliminary hearing evidence that defendant committed the offense of kidnapping.
As our Supreme Court explained in People v. Majors (2004) 33 Cal.4th 321 (Majors), “in order to constitute section 207(a) kidnapping, the victim’s movement must be accomplished by force or any other means of instilling fear. We have observed that even prior to the 1990 amendment adding the language ‘any other means of instilling fear,’ our cases held ‘that a taking is forcible if accomplished through fear.’ [Citation.] As these earlier cases explain, the force used against the victim ‘need not be physical. The movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused and such apprehension is not unreasonable under the circumstances.’ [Citations.]” (Majors, supra, 33 Cal.4th at pp. 326-327.)
Majors further observed: “In contrast to the use of force or fear to compel asportation, ‘asportation by fraud alone does not constitute general kidnapping in California.’ [Citations.] This long-standing rule is premised on the language of section 207, which for general kidnapping, at issue here, requires asportation by force or fear, but for other forms of kidnapping proscribes movement procured only by ‘fraud,’ ‘entice[ment],’ or ‘false promises.’ [Citation.]
“Thus, in Stephenson [(1974)] 10 Cal.3d 652, we reversed two kidnapping convictions. [Citation.] In one, the victim entered the vehicle voluntarily because he thought it was a taxi. [Citation.] In the other, the victim accepted a ride from a stranger. [Citation.] We concluded the victims ‘were enticed to get voluntarily into defendant’s car by deceit or fraud.’ [Citation.]
“By contrast, in People v. La Salle (1980) 103 Cal.App.3d 139, 143, 146 [162 Cal.Rptr. 816]..., the victim entered the car not voluntarily, but because the defendant had her two-and-a-half-year-old daughter in the car, and could have driven away with her. While ‘she was afraid to get into the car, she was more afraid not to get in, because of what could happen to her daughter.... [S]he felt she had no choice but to cooperate. The jury was entitled to conclude that this was not a case of inducement by fraud or deceit, but one wherein the victim was forced to consent to defendant’s demands.’ [Citation.]” (Majors, supra, 33 Cal.4th at pp. 327-328.)
Here, as the case law governing kidnapping illustrates, there was absolutely no evidence at the preliminary hearing that defendant committed the crime of kidnapping when he took the victim to the restaurant and grocery store. There was no evidence that defendant had used force or fear or threats to get the victim to go with him. In fact, the evidence showed that the victim willingly went with defendant. Moreover, when the victim and defendant were stopped by the police, Officer Brooks testified that the victim “wasn’t upset.”
Accordingly, to the extent the amendment charged, under a continuing offense construction or under a particular date construction, that defendant committed a violation of section 207, subdivision (a) (simple kidnapping), on August 4, 2006, the information was erroneously amended “so as to charge an offense not shown by the evidence taken at the preliminary examination” in violation of section 1009. Reversal of the judgment on count 2 is therefore required. (Jones v. Superior Court, supra, 4 Cal.3d at p. 666; Burnett, supra, 71 Cal.App.4th at pp. 164-168, 170-171, 173, 177, 179, 188; People v. Kellin, supra, 209 Cal.App.2d at pp. 575-576; § 1009.) None of the cases cited by the People compels a contrary conclusion.
B. Probation Conditions
At the sentencing hearing, the trial court ordered defendant placed on probation on various terms and conditions. Among others, the court imposed the following conditions:
(a) “Not associate with any minor unless accompanied by a responsible adult approved by Probation” (unnumbered condition);
This condition is listed as condition No. 7 in the probation department’s recommendations and referred to as No. 7 orally by the trial court; however, the trial court “expanded” it, and on the clerk’s transcript it is an unnumbered condition. In order to avoid potential confusion, we will list the contested conditions with letter designations.
(b) “Stay away from places where minor(s) congregate, such as locations especially designated for use by minors” (condition No. 8);
(c) “Have no direct or indirect contact with Jane Doe” (condition No. 13);
(d) “Not associate with any unrelated person on probation or parole” (condition No. 19);
(e) “Not own[,] possess, or have under your control any firearm or deadly weapon or related paraphernalia for LIFE pursuant to 12021 PC/US 922(G)(1)” (unnumbered condition); and
(f) “[N]ot to use any form of electronic communication to communicate with any person under the age of 18... include[ing] but... not limited to[] use of the Internet, use of the Worldwide Web, use of telephonic equipment, including but not limited to, texting, Instant Messaging, direct telephonic communication without the express written permission of a responsible adult person responsible for the particular minor that there might be such communication with, a person having knowledge of the orders of this Court with respect to your contact with the minor” (unnumbered condition).
This probation condition was not among those recommended by the probation department but was imposed by the court sua sponte. It does not appear on the clerk’s minute order of April 25, 2008. As a general rule, when the record of the court’s oral pronouncement regarding sentencing conflicts with the clerk’s minute order, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471.
Defendant argues that these probation conditions are unconstitutionally vague and overbroad and must be modified to include a knowledge requirement. The People concede that the probation conditions (d) and (f) should be modified. They disagree that the remaining conditions must be modified.
Trial courts have broad discretion to set conditions of probation in order “to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; see also Pen. Code, § 1203.1, subd. (j).) “If it serves these dual purposes, a probation condition may impinge upon a constitutional right otherwise enjoyed by the probationer, who is ‘not entitled to the same degree of constitutional protection as other citizens.’ [Citation.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 624.) However, that discretion is not boundless. (People v. Garcia (1993) 19 Cal.App.4th 97, 101.) “[C]onditions of probation that impinge on constitutional rights must be tailored carefully and ‘reasonably related to the compelling state interest in reformation and rehabilitation....’ [Citation.]” (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.)
“[T]he void for vagueness doctrine applies to conditions of probation.” (People v. Reinertson (1986) 178 Cal.App.3d 320, 324.) A vagueness challenge is based on the due process concept of fair warning. (In re Sheena K. (2007)40 Cal.4th 875, 890.) Therefore, a probation condition “‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated[]’....” (Ibid.) Similarly, “[a] probation condition is constitutionally overbroad when it substantially limits a person’s rights and those limitations are not closely tailored to the purpose of the condition.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641, citing In re White (1979) 97 Cal.App.3d 141, 146 [“‘[t]he Constitution, the statute, all case law, demand and authorize only “reasonable” conditions, not just conditions “reasonably related” to the crime committed.’ [Citation.] [¶] Careful scrutiny of an unusual and severe probation condition is appropriate”].) Hence, probation conditions are overbroad if they prohibit the defendant from associating with persons other than those targeted by the restriction. (People v. Lopez, supra, 66 Cal.App.4th at pp. 628-629 [probation condition must contain element of knowledge of gang membership].)
Our state Supreme Court recently determined that a probation condition requiring that the juvenile defendant “not associate with anyone ‘disapproved of by her probation officer’” was unconstitutionally vague and overbroad “in the absence of an express requirement of knowledge....” (In re Sheena K., supra, 40 Cal.4th at p. 891.) This was because the condition itself did not notify the defendant in advance with whom she was prohibited from associating, nor did it require that the probation officer communicate such information to her. (Id. at pp. 891-892.) Thus, the probation condition gave the probation officer the power virtually to preclude the defendant’s association with anyone (id. at p. 890), which could theoretically include grocery clerks, mail carriers, and health care providers. Our Supreme Court reasoned that “the underpinning of a vagueness challenge is the due process concept of ‘fair warning.’” (Ibid.) “The vagueness doctrine bars enforcement of ‘“a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” [Citation.]’ [Citation.]” (Ibid.) Modification of the probation condition to require that defendant have knowledge of who was disapproved of by her probation officer cured the infringement of the defendant’s constitutional rights. (Id. at p. 892.)
In Garcia, the court held that a probationary term requiring the defendant not associate with users and sellers of narcotics, felons, or ex-felons was constitutionally overbroad in failing to recognize that the defendant may, inadvertently, socialize with individuals unknown to him to fall within such categories. (People v. Garcia, supra, 19 Cal.App.4th at p. 102.) Likewise, the court found an implicit recognition of the knowledge requirement within the condition incompatible with constitutional goals: “the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication.” (Ibid.) Hence, it explicitly modified the defendant’s condition to prohibit him from associating with persons he knew to be users or sellers of narcotics, felons, or ex-felons. (Id. at p. 103.)
In Lopez, the defendant’s probationary term No. 15 barred him from any gang association, involvement in gang activities, display of any gang markings, or wearing of gang clothing. (People v. Lopez, supra, 55 Cal.App.4th at p.622.) That court found the term constitutionally vague and overbroad in that it failed to put the defendant on proper notice with whom he was prohibited from associating, what he could wear, and what activities in which he might lawfully engage. (Id. at pp. 628-631.) That court found an implied requirement of knowledge on the part of the defendant insufficient to overcome the constitutional infirmities: “Without at least the insertion in this aspect of the condition of a knowledge element, [the defendant] was subject to being charged with an unwitting violation of the condition because nothing in it required the police or the probation office to apprise [the defendant] of the ‘identified’ items of gang dress before he was charged with a violation.” (Id. at p. 634.) Hence, the court modified the defendant’s conditions of probation to require that the defendant not associate with anyone known by him to be a gang member and not wear clothing known by him to be gang attire. (Id. at p. 638.) With these minor modifications, the court found the defendant’s probationary terms passed constitutional muster. (Ibid.)
The obvious jurisprudential trend is toward requiring that a term or condition of probation explicitly require knowledge on the part of the probationer that he is in violation of the term in order for it to withstand a challenge for constitutional vagueness. We see no reason why this requirement should be limited to the construction of association terms. Even the People acknowledge that some of the probationary conditions should be modified to include a specific knowledge requirement. We agree that probation conditions (b), (d), and (f) should be modified to include a knowledge requirement. The remaining challenged conditions, (a), (c), and (e), are sufficiently narrow and do not need modification.
III
DISPOSITION
Probation conditions (b), (d), and (f) are modified to read as follows:
(b) Stay away from places where defendant knows minor(s) congregate, such as locations especially designated for use by minors (condition No. 8);
(d) Not associate with any unrelated person known to be on probation or parole (condition No. 19); and
(f) Not use any form of electronic communication to communicate with any person known to be under the age of 18, including but not limited to use of the internet; use of the worldwide web; and use of telephonic equipment, including but not limited to texting, instant messaging, and direct telephonic communication, without the express written permission of an adult person who is responsible for the particular minor with whom there might be such communication and who has knowledge of the orders of the court with respect to defendant’s contact with the minor (unnumbered condition). The trial court is directed to amend its minute order of April 25, 2008, to include this unnumbered probation condition.
The judgment on count 2 is reversed. As modified, the judgment is affirmed in all other respects.
We concur: GAUT J. KING J.