Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA101934, Dewey Lawes Falcone, Judge.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
By information, defendant Derrick Dontay Porter was charged with assault with a deadly weapon “to wit... trash can” (Pen. Code, § 245, subd. (a)(1)), and with criminal threats (§ 422). He was jointly tried by jury with codefendant Marcus Malone, who was charged with a separate count of assault with a deadly weapon (a steel pipe) and with the enhancement allegation of inflicting great bodily injury on Flores.
An allegation that defendant also used a steel pipe in the assault was stricken before trial.
Further undesignated statutory references are to the Penal Code.
At the close of the prosecution’s evidence, the trial court granted defendant’s motion for judgment of acquittal under section 1118.1 on the charges against him in the information, but permitted the prosecution to amend to allege two other counts shown by the evidence: assault by means of force likely to produce great bodily injury “by kicking and by using his fists” (§ 245, subd. (a)(1)), and attempted criminal threats (§§ 664/422). The jury convicted defendant of assault by means of force likely to produce great bodily injury, and acquitted him of attempted criminal threats. (It convicted Malone of assault with a deadly weapon and found the great bodily injury allegation against him true.) The trial court placed defendant on probation for three years and ordered that he serve 184 days in county jail (time served).
On appeal, defendant contends that the trial court erred in permitting the prosecution to amend to charge assault by means of force likely to produce great bodily injury by kicking and using his fists. We disagree and affirm the judgment.
BACKGROUND
Around noon on August 4, 2007, Manuel Flores was at a laundromat in Bellflower with Alejandra Villalobos and their two young sons when defendant, his mother, and codefendant Malone arrived to do laundry. Flores became upset that defendant’s mother was holding a lit cigarette as she entered the laundromat. He told her he did not appreciate her smoking because his two sons were inside and it was a nonsmoking area. Defendant told Flores that he had no right to tell his mother what to do. Flores was in the doorway with his two-year-old son and said that he did not appreciate defendant’s mother smoking near his son. Defendant replied, “Fuck you and your son. I’ll come back and kill both you guys.” Flores went inside the laundromat, and defendant left with his mother and Malone.
A few minutes later, defendant and Malone returned and entered the laundromat. Malone was carrying a metal pipe. Defendant grabbed a plastic or rubber trash can. Flores told them to “show some more respect” because his children were present. Defendant, who had climbed over the washing machines and onto the counter, rushed Flores from behind and tried to throw the trash can over his head. Malone then struck Flores on the head with the pipe. Flores managed to partially block the blow, grabbing the pipe and wrestling Malone to the floor. Flores was on his stomach, and defendant was kicking him from behind his head. The attack lasted three to five minutes before defendant and Malone left. Flores tossed his cell phone to Villalobos and asked her to call 911. Paramedics arrived and took Flores to the hospital, where he received 12 staples to his forehead, 5 stitches above his eyebrows, and 3 stitches below his right eye.
Villalobos testified that she saw Malone strike Flores on the head with the pipe and saw defendant hitting him with his fists and also with a trash can. According to Villalobos, the first contact she saw was defendant striking Flores in face, chest and stomach a “couple [of] times,” after which he struck Flores with the trash can and Malone struck him with the pipe. Both defendants struck Flores as he lay on the floor.
Defense
Malone called defendant’s mother, Sonia Thompson, who testified that Flores used vulgarity and called her names when he told her he did not appreciate her smoking. He also pulled out a knife, which he put back in his pocket as he followed her outside. Defendant confronted Flores and asked why he was talking to his mother like that. Flores pulled out his knife again, and Thompson got between them. She suggested that defendant, Malone, and she should just leave, which they did. She later asked defendant and Malone to return to retrieve clothes they had left at the laundromat.
Malone testified that in the confrontation about the cigarette, Flores used a racial slur in arguing with defendant. Flores also held a knife. The blade opened from the handle, was serrated, and was about three-and-a-half inches long.
According to Malone, when he and defendant returned to the laundromat at Sonia Thompson’s request, Malone armed himself with a pole from the trash bin in the parking lot because he knew Flores had a knife and Malone was afraid of being stabbed. As soon as defendant entered the laundromat, Flores began arguing again. Flores approached Malone and “kept fiddling in his pocket” from which he had pulled the knife earlier. Malone told him to stop, but Flores continued to approach, and partly withdrew his knife so that Malone could see it. Malone tried to jab him with the pole and backed up toward the door. When Flores still approached, Malone swung the pole at him. Flores blocked the blow, and with his full weight forced Malone to the ground, breaking Malone’s arm. Malone screamed in pain, and did not strike Flores again. Defendant punched and kicked Flores, trying to get him off Malone. Finally, defendant pulled Flores off, helped Malone up, and they both left for Kaiser hospital. Malone later had surgery on his arm.
DISCUSSION
Defendant contends that the trial court erred in permitting the prosecution to amend the information to charge assault by means of force likely to produce great bodily injury by kicking and using his fists. Defendant concedes that the evidence at the preliminary hearing showed that he kicked the victim. But he asserts that it did not show that he, rather than Malone, was the initial aggressor, striking Flores with his fists as described at trial by Alejandra Villalobos. Therefore, defendant argues that the amended charge was based “largely on previously undisclosed evidence” and that he was prejudiced in the preparation of his defense. He also contends that “it was also error for the trial court to permit the amendment in light of the prosecution’s mishandling of the charging in this case.” We find no merit in defendant’s contentions.
Section 1009 grants the trial court discretion to permit the amendment of the information at any time, so long as the amended charge is supported by the evidence at the preliminary hearing. (People v. George (1980) 109 Cal.App.3d 814, 818-819 (George).) The trial court’s ruling granting a motion to amend is reviewed for abuse of discretion. (People v. Bolden (1996) 44 Cal.App.4th 707, 716.)
Here, Flores was the sole witness at the preliminary hearing, and his testimony concerning the attack by defendant and Malone tracked his trial testimony. At the preliminary hearing, Flores described the following scenario, consistent with his trial testimony: when defendant and Malone returned to the laundromat, Malone was armed with a metal pipe; defendant approached Flores from behind and climbed on a washing machine, carrying a plastic trash can; as Flores approached Malone, defendant tried to put the trash can over Flores’ head, striking him in the head, and Malone then struck him in the head with the pipe; Flores wrestled Malone to the floor, holding onto the pipe; as they struggled over the pipe, defendant kicked Flores behind his head on the neck and shoulders.
Obviously, this evidence supported a charge against defendant of assault by means of force likely to produce great bodily injury, based on his kicking Flores. Defendant does not contend otherwise. Trial defense counsel objected to the amendment not on the ground that he was surprised that such a theory was supported by the preliminary hearing evidence, or on the ground that he was unable to defend against Alejandra Villalobos’ testimony describing defendant’s use of his fists. Rather he objected on the ground that in cross-examining Flores he relied on the charge of assault with a deadly weapon, based on defendant’s use of the trash can. He stated that he “would have asked a lot more questions about the injuries and things other than the laceration on the head. As the court may recall, the only question I think I did ask was [‘]so your injury on the head was caused by the metal pipe[?’], and the answer was [‘]yes[’].” He added that it was an “undue burden” on him to suggest that he should have asked additional questions and possibly “implicat[e] my client on a charge or defend[] [my client] on a charge that was just not there.”
We note as well that it supported such a charge against defendant on an aiding and abetting theory – his trying to place the trash can over Flores’ head was designed to facilitate Malone’s attack with the pipe. However, the prosecution did not rely on an aiding and abetting theory at either the preliminary hearing or at trial.
Although defense counsel argued that he would have asked Flores more questions about his injuries, he did not seek to recall Flores after the amendment in order to examine him in greater detail. Nor did he ask for a continuance to reassess his defense strategy. In his opening statement, he portrayed defendant as acting in reasonable defense of Malone because he feared Flores was going to stab Malone. The amendment did not obviate such a theory. Indeed, according to the trial testimony of defendant’s mother, Flores was belligerent in the confrontation over the cigarette, and displayed a knife to both her and defendant. According to Malone, he first struck Flores with the pipe out of fear that Flores would stab him with the knife, and defendant assaulted Flores only to get him off Malone, who had suffered a broken arm when he fell to the ground with Flores on top of him. Thus, the record shows that defendant’s attorney contemplated a defense-of-another theory before the amendment, and that such a theory remained viable after the amendment. Further, the trial court instructed the jury on defense of another, using CALJIC No. 5.32.
He stated: “You’ll hear from my client that... he did not try to injure Mr. Flores with the trash can. When he saw there was a confrontation and it was getting rather physical between his friend, Mr. Malone, and Mr. Flores, and he thought... he saw a knife or Mr. Flores reaches for that knife[;] that is when my client came up and threw the trash can over, not trying to hit him, but trying to subdue him.”
The court instructed: “It is lawful for a person who, as a reasonable person, has grounds for believing and does believe that bodily injury is about to be inflicted upon another person to protect that individual from attack. [¶] In doing so, he may use all force and means which that person believes to be reasonably necessary and which would appear to a reasonable person, in the same of similar circumstances, to be necessary to prevent the injury which appears to be imminent.”
On appeal, defendant argues that he was prejudiced because the testimony of Alejandra Villalobos, unlike the preliminary hearing evidence, suggested that he “was the first person to make any violent contact.” However, Flores’ testimony at the preliminary hearing depicted defendant as the initial aggressor: defendant tried to put the trash can over Flores’ head, striking him in the head in the process, after which Malone struck Flores with the pipe. Moreover, as we have noted, trial defense counsel did not object to the amendment on the ground that he was unable to defend against Villalobos’ testimony concerning defendants’ use of his fists.
Relying on In re Johnny R. (1995) 33 Cal.App.4th 1579 (Johnny R.), defendant contends that “[i]t was also error for the trial court to permit the amendment in light of the prosecution’s mishandling of the charging in this case.” In Johnny R., a Welfare and Institutions Code section 602 petition alleged that the minor had committed an assault with a deadly weapon. At the adjudication hearing, after the prosecution’s direct examination of its principal witness, the juvenile court suggested an amendment of the petition to allege possession of a dirk or dagger in violation of section 12020, an offense not included in the charge of assault with a deadly weapon. The juvenile court later permitted the amendment over the minor’s objection. At the conclusion of the adjudication hearing, the juvenile court sustained the allegation of possession of a dirk or dagger, and dismissed the allegation of assault with a deadly weapon.
On appeal, the court held that the juvenile court erred in permitting the amendment, finding the case indistinguishable from In re Robert G. (1982) 31 Cal.3d 437, which held that a petition under Welfare and Institutions Code section 602 cannot be sustained on the basis of an offense not charged in the petition or included in the offense alleged in the information, unless the minor consents to the amendment. (Johnny R., supra, 33 Cal.App.4th at p. 1584.) The court also criticized the juvenile court’s conduct: “The prosecutor apparently had never considered a weapons charge. It was not until the juvenile court pointed out the weakness of the prosecution’s case and the availability of a weapons charge that the prosecutor belatedly came to life and attempted to shore up its collapsing case with an amendment. Prosecutorial inattention is not a sound basis for the court’s exercise of discretion mid-trial to require the accused to face new charges not included within those previously filed.” (Id. at pp. 1584-1585.)
Johnny R., which dealt with a juvenile proceeding under Welfare and Institutions Code section 602, is distinguishable from the instant case. Section 1009 expressly allows the trial court in a criminal case to permit the prosecution to amend the information at any time, even at the conclusion of the trial, so long as the new charge is supported by the evidence of the preliminary hearing. (George, supra, 109 Cal.App.3d at p. 819.) Further, in Johnny R., the prosecution had not considered an amendment before one was suggested by the court. Here, the prosecutor made clear that he intended to make the amendment on his own, depending on how the court ruled on defendant’s motion for judgment of acquittal. Finally, in reviewing a ruling permitting amendment under section 1009, the critical inquiry is not whether the prosecutor was “inattentive,” but whether, assuming the amended charge is supported by the preliminary hearing evidence, the defendant was prejudiced in defending at trial. As we have explained, in the present case defendant was not prejudiced. In short, the trial court did not abuse its discretion in permitting the amendment.
The prosecutor stated that he believed defendant’s motion for judgment of acquittal was “well-taken” “to a certain degree,” but added: “I did consider yesterday based on the state of the evidence depending on how the court ruled seeking leave to amend to add as to [defendant] only assault by means of force likely to cause GBI; to wit, hands and feet, based on what we have heard so far.”
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J. MANELLA, J.