Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF06073
SCOTLAND, P. J., BLEASE, J., NICHOLSON, J.
MODIFICATION OF OPINION UPON DENIAL OF PETITION FOR REHEARING
THE COURT:
The opinion of this court filed April 29, 2009, in the above entitled case is modified as follows:
1. Add the following to the end of Section IV on page 23:
“To the extent defendant argues his due process right to notice was violated because the trial evidence showed more criminal acts than the preliminary examination evidence, the argument fails. “The ‘preeminent’ due process principle is that one accused of a crime must be ‘informed of the nature and cause of the accusation.’ (U.S. Const., Amend. VI.) Due process of law requires that an accused be advised 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 at his trial. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 317.)
The Constitution does not require that the testimony at the preliminary hearing be as specific as the trial testimony. “[P]reliminary hearing testimony is frequently less specific than testimony at trial in showing particular events.... There is no guarantee that pretrial proceedings, whether in the form of a preliminary examination or before the grand jury, will provide adequate notice of the acts which will be shown at trial.” (People v. Salvato (1991) 234 Cal.App.3d 872, 881.) The Constitution requires notice of the number of offenses charged, and the time frame in which they occurred. “So long as the evidence presented at the preliminary hearing supports the number of offenses charged against a defendant and covers the time frame or time frames charged in the information, a defendant has all the notice the Constitution requires.” (People v. Luna (1988) 204 Cal.App.3d 726, 748, disapproved on other grounds in People v. Jones, supra, 51 Cal.3d at p. 322.)
In People v. Jones, supra, the Supreme Court noted that a defendant has the opportunity to learn critical details of the prosecution’s case through demurrer or pretrial discovery procedures. (51 Cal.3d at p. 317.) The court held that, “given the availability of the preliminary hearing, demurrer and pretrial discovery procedures, the prosecution of child molestation charges based on generic testimony 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.) Section 1054.1, subdivision (c) provides that the prosecution must disclose to the defendant, “[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged.” Defendant makes no argument that he did not receive the tapes that were the basis of the evidence against him, or that he was in any way misled in making his defense.
Accordingly, defendant received sufficient notice of the charges against him.”
2. On page two, add the following footnote at the end of the sentence of the first partial paragraph which ends in “subd. (b)(1).)”:
“Defendant was convicted in counts 11 and 12 of violating section 288, subdivision (a), a lesser offense to the charged offense, section 288, subdivision (b)(1). The abstract of judgment incorrectly shows a conviction on counts 11 and 12 of violating section 288, subdivision (b)(1). We shall therefore direct the trial court to amend the abstract.”
3. On page 24, under DISPOSITION, add the following after “abstract of judgment”: “showing the modification of custody and conduct credits, and changing the convictions for counts 11 and 12 to violations of section 288, subdivision (a), lewd act on a child,”
This modification does not effect a change in the judgment. As modified, the petition for rehearing is denied.