The only variance in evidence between the preliminary hearing and the trial was at trial D.T. could not recall where or when the acts of oral copulation or sexual intercourse took place. Instructive is People v. Gil (1992) 3 Cal.App.4th 653, 4 Cal.Rptr.2d 697, in which the defendant was convicted of five counts of forcible lewd conduct on two girls under the age of 14. At trial, one girl testified to incidents of the defendant touching her breasts and the defendant putting his penis in her vagina, and the other girl testified to acts of the defendant touching her breasts, putting his finger in her vagina, and putting his penis in her vagina. ( Id. at pp. 655-657, 4 Cal.Rptr.2d 697.)
A failure to object waives a claim of inadequate notice of the charges. (People v. Gil (1992) 3 Cal.App.4th 653, 659.) Moreover, even if defendant had preserved this claim for appeal, the claim lacks merit.
"[A]ppellate courts are compelled to reverse convictions where substantial evidence was presented at trial that did not correspond to the charges established at the preliminary hearing. [Citations.]" (People v. Graff, supra, 170 Cal.App.4th at p. 362.) This case is similar to People v. Gil (1992) 3 Cal.App.4th 653. In Gil, the defendant was convicted of five counts of forcible lewd conduct on two girls under the age of 14. At trial, one girl testified to incidents involving touching of her breasts and the defendant putting his penis in her vagina, and the other girl testified to acts of touching her breasts, putting his finger in her vagina, and putting his penis in her vagina.
Thus, "... it is unlikely appellant's ability to defend was prejudiced [by any amendment of the date of the offenses, particularly where] his defense was not a specific alibi but a denial that molestations occurred at all. [Citations.]" (People v. Gil (1992) 3 Cal.App.4th 653, 659 [4 Cal.Rptr.2d 697], citing People v. Jones (1990) 51 Cal.3d 294, 319 [270 Cal.Rptr. 611, 792 P.2d 643].) Because appellant did not have to be convicted of the two predicate offenses, and because no limitations issues were disputed by appellant at trial, the fact that the information was amended does not make section 803(f) inapplicable.
The inconsistencies went to the weight and credibility of the testimony, not to the question of notice claimed by appellant." (People v. Gil (1992) 3 Cal.App.4th 653, 659.)
The inconsistencies went to the weight and credibility of the testimony, not to the question of notice claimed by appellant." (People v. Gil (1992) 3 Cal.App.4th 653, 659.) D.A.'s testimony established that defendant used his hand to rub a part of her body she described as her "vagina area."
[Citations.]" (People v. Burnett (1999) 71 Cal.App.4th 151, 179; accord People v. Gil (1992) 3 Cal.App.4th 653, 659; People v. Newlun (1991) 227 Cal.App.3d 1590, 1603-1604 [by failing to object or request a continuance to address new evidence, defendant forfeited argument that he had been denied due process because he was convicted of lewd acts based on sodomy when no evidence of sodomy was presented at preliminary hearing].)
She also testified, both at the preliminary hearing and at trial, that after penetrating her with his penis, defendant asked whether she was clean, and when she said yes, he took off his condom and ejaculated inside her. Where, as here, time is not a material element of the offense, no alibi was offered, and the defendant knew what accusations he had to meet, he fails to demonstrate that any substantial right was adversely affected. (See People v. Krupnick (1958) 165 Cal.App.2d 755, 764, and People v. Gil (1992) 3 Cal.App.4th 653, 659.) Indeed, defense counsel conceded that changing the dates did not usurp the defense that had been offered at trial.
Where, as here, a defendant is charged by way of an information, "[t]he case law is consistent in reiterating that a superior court lacks authority to try [the] defendant for a felony . . . offense not previously subjected to a preliminary hearing. Violation of this limitation on the superior court's power, however, would constitute action in excess of jurisdiction—waivable error—and not nonwaivable subject matter jurisdiction. [Citations.]" (People v. Burnett, supra, 71 Cal.App.4th at p. 179; see also People v. Gil (1992) 3 Cal.App.4th 653, 659; People v. Newlun (1991) 227 Cal.App.3d 1590, 1603-1604 [by failing to object, defendant forfeited argument that he had been denied due process because he was convicted of lewd acts based on sodomy when no evidence of sodomy was presented at preliminary hearing].) In his reply brief appellant asserts: "[I]f there is forfeiture, then there is ineffective assistance of trial counsel.
As a preliminary matter, the Attorney General asserts defendant forfeited his statute of limitations challenge by failing to raise it below. (Cf. People v. Gil (1992) 3 Cal.App.4th 653, 659 [waiver where defendant did not assert inadequate notice of amended charges].) Defendant contends an objection would have been futile because the trial court rejected his objection to other amendments; alternatively, he asserts his trial attorney rendered ineffective assistance of counsel (IAC) by failing to make a specific objection based on the limitations period.