Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Richard P. Oberholzer, Judge, Super. Ct. No. BF113970A.
Victor Blumenkrantz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, Acting P.J.
A jury found appellant Robert Wayne Washington guilty of one count of making criminal threats to Jeffrey Davis (count 3) and one count of assaulting Davis with a semi-automatic firearm (count 4). The jury found true allegations that he personally used a firearm in the commission of both offenses. (Pen. Code, §§ 245, subd. (b), 422, 12022.5, subd. (a).) The jury further found Washington not guilty of one count of assaulting Montez Sumlin with a semi-automatic firearm (count 1), but convicted him of the lesser included misdemeanor offense of exhibiting a firearm. (§§ 245, subd. (b), 417, subd. (a)(2).) The jury acquitted Washington of one count of burglary (count 2).
All further statutory references are to the Penal Code unless otherwise noted.
In a subsequent bifurcated proceeding, the trial court found nine prior conviction allegations true. The trial court sentenced Washington to a Three Strikes sentence of 32 years to life, plus a determinate term of 23 years. The 32-year minimum term for the Three Strikes sentence apparently was arrived at under section 667, subdivision (e)(2)(A)(iii), using the upper term of nine years for the count 4 conviction, then adding 23 years for the upper term firearm enhancement and the prior conviction sentences. (§§ 245, subd. (b), 667, subd. (e)(2)(A)(iii).) The 23-year determinate term was comprised of the 10-year upper term for the personal use of a firearm enhancement (§ 12022.5, sub. (a)), plus 10 years for two section 667, subdivision (a) enhancements, plus three years for three section 667.5, subdivision (b) enhancements. The court imposed and stayed a sentence of 26 years to life for count 3, and ordered Washington to serve a one-year concurrent sentence for the misdemeanor conviction.
On appeal, Washington challenges four CALCRIM instructions the trial court gave, specifically CALCRIM Nos. 220, 222, 1300 and 224, on the grounds they either incorrectly stated the prosecution’s burden of proof or failed to instruct on all of the elements of the criminal threats charge. The People argue that with respect to some, but not all, of these instructional issues, Washington either forfeited or waived his right to appellate review by failing to object or request modification. Washington nonetheless claims the claims are reviewable because they involve substantial rights. In the interests of brevity and judicial efficiency, we will address Washington’s instructional issues on the merits without regard to the People’s forfeiture or waiver arguments, and, as we shall explain, we will reject Washington’s arguments. We also will reject Washington’s additional claims that the trial court erred when it imposed the aggravated term when determining his sentence and that one of the prior conviction allegations the court found true is not supported by substantial evidence. Accordingly, we will affirm the judgment.
DISCUSSION
CALCRIM Nos. 220 and 222
Washington claims the trial court’s instructing the jury in the language of CALCRIM No. 220, in combination with CALCRIM No. 222 and its admonition to the jury before closing arguments that “what the attorneys say is not evidence. You have all of the evidence from which you’ll make your decision,” violated his federal due process right to have his guilt determined beyond a reasonable doubt. We disagree.
The due process clause of the Fourteenth Amendment protects a defendant against conviction except on proof beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 361-362.) The federal constitution does not require jury instructions to contain any particular language, but they must convey both that the accused is presumed innocent until proved guilty and that the accused may be convicted only upon proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) When reviewing the correctness of instructions on reasonable doubt, the proper constitutional inquiry is whether there is a reasonable likelihood that the jury has applied the instructions in a way that violates the Constitution. (People v. Frye (1998) 18 Cal.4th 894, 957.) A single instruction must not be judged in isolation but rather in context of all the other instructions given the jury. (Ibid.)
CALCRIM No. 220, as read to the jury in this case, states in pertinent part: “Deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. [¶] Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” (Italics added.) In the instant case, after instructing the jury with CALCRIM No. 220, the court gave CALCRIM No. 222, which states that the jury “must use only the evidence that was presented in this courtroom,” and defines “evidence” as the “sworn testimony of witnesses and exhibits admitted into evidence, stipulation between the parties and anything else I told you to consider as evidence.”
Washington contends that, when these two instructions are read together with the court’s instruction to the jury before closing statements were given that “what the attorneys say is not evidence. You have all of the evidence from which you’ll make your decision,” they limited the jury’s determination of reasonable doubt to the evidence received at trial. Washington reasons that jurors may have been misled into believing they were precluded from considering the absence of evidence connecting him to the crimes in determining whether reasonable doubt existed, resulting in a lessening of the prosecution’s burden of proof and impinging on Washington’s right to present a defense. Washington acknowledges his attorney argued the absence of evidence to the jury, but says CALCRIM No. 220 does not support the argument and jurors are presumed to follow instructions. Washington asserts that because the error is structural, reversal is required.
As Washington acknowledges in his reply brief, three recent appellate decisions, two from this court, have disagreed with his interpretation of CALCRIM No. 220. (People v. Flores (2007) 153 Cal.App.4th 1088 (Flores); People v. Westbrooks (2007) 151 Cal.App.4th 1500 (Westbrooks); People v. Rios (2007) 151 Cal.App.4th 1154 (Rios).)
In Rios, we rejected the argument that CALCRIM No. 220, read together with CALCRIM No. 222, impermissibly shifted the burden of proof to the defense by allowing the jury to hold against the defense the absence of defense evidence. (Rios, supra, 151 Cal.App.4th at pp. 1156-1157.) We noted that CALCRIM No. 220 imparted essentially the same mandate to the jury as CALJIC No. 2.90, as to which the United States Supreme Court had rejected a similar constitutional challenge. (Rios, supra,at p. 1157, citing Victor v. Nebraska, supra, 511 U.S. at p. 16.) As we explained in Rios, “CALCRIM [No.] 220 uses verbs requiring the jury [to] ‘compare and consider all the evidence that was received throughout the entire trial.’ CALJIC No. 2.90 uses nouns requiring ‘the entire comparison and consideration of the all the evidence’ by the jury.” (Rios, supra, at p. 1157.)
In Flores, we analyzed the language at issue in CALCRIM No. 220, read together with CALCRIM No. 222, and confirmed that “[n]othing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial.” (Flores, supra, 153 Cal.App.4th at p. 1093.)
Finally, in Westbrooks, Division One of the Fourth District rejected the contention that CALCRIM No. 220 prohibited the jury from considering the lack of physical evidence implicating the defendant in the crime in determining his guilt. The court held CALCRIM No. 220 “merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial.” (Westbrooks, supra, 151 Cal.App.4th at p. 1509.) The court determined it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating the jury was precluded from considering any perceived lack of evidence in determining the accused’s guilt. (Westbrooks, supra, at p. 1510.)
We see no reason to depart from our analysis in Rios and Flores or the analysis in Westbrooks, and therefore conclude that because there is no reasonable likelihood the jury understood CALCRIM Nos. 220 and 222 in the manner Washington suggests, the trial court did not err in giving these instructions to the jury.
CALCRIM No. 1300
The instruction on the crime of making criminal threats, CALCRIM No. 1300, includes as an element that “[t]he defendant intended that his statement be understood as a threat.” As Washington points out, this language fails to state “that the defendant must have specifically intended that his statement be understood as a threat.” Section 422 defines the crime of making criminal threats as follows: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement ... is to be taken as a threat ... shall be punished....” Relying on section 422, Washington argues the omission of the word “specifically” in front of the word “intended” in the instruction removed the specific intent element from the offense and risked the jury using a general intent to support a conviction.
Washington’s argument is based on a faulty understanding of the nature of general and specific intent. General intent exists where the defendant intentionally does some act or fails to do some act, while specific intent exists where, in doing or failing to do the act, the defendant intends a particular result. (People v. Rubalcava (2000) 23 Cal.4th 322, 328.) For example, under the criminal threats statute, the defendant must “willfully threaten[] to commit a crime which will result in death or great bodily injury to another person.” (§ 422.) This is a general intent to make a qualifying threat. The crime, however, also requires a specific intent “that the statement … is to be taken as a threat.” (Ibid.) In other words, in addition to intending to make the statement, the defendant must intend that the statement be taken as a threat.
As the guide for using the CALCRIM instructions explains: “The instructions do not use the terms general and specific intent because while these terms are very familiar to judges and lawyers, they are novel and often confusing to many jurors. Instead, if the defendant must specifically intend to commit an act, the particular intent required is expressed without using the term of art ‘specific intent.’ Instructions 250-254 provide jurors with additional guidance on specific vs. general intent crimes and the union of act and intent.” (Judicial Council of California Criminal Jury Instructions (2007-2008) p. xxvi.) Consistent with this explanation, CALCRIM No. 1300 does not include the term “specific” or “specifically.” As given here, CALCRIM No. 1300 listed the elements of the crime as follows: “The defendant is charged in Count 3 with having made a criminal threat. To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to Mr. Davis; two, the defendant made the threat to Mr. Davis orally; three, the defendant intended that his statement be understood as a threat and intended it to be communicated to Mr. Davis; four, the threat was so clear, immediate, unconditional and specific that it communicated to Mr. Davis a serious intention and the immediate prospect that the threat would be carried out; five, the threat actually caused Mr. Davis to be in sustained fear for his own safety; and, six, Mr. Davis’ fear was reasonable under the circumstances.”
The first element in this list requires a general intent to make a threat of death or great bodily injury. The third element requires a specific intent that the threat be taken as such by the recipient. Thus, in order to find defendant guilty of this crime, the jury was required to find Washington made a threat and did so with the intent that his statement be understood as a threat. Moreover, the jurors were instructed with CALCRIM No. 252, in pertinent part, as follows: “The following crimes require specific intent and those are Counts 2 and 3, crimes of burglary and threats of great bodily harm. [¶] To be guilty of these offenses a person must not only intentionally commit the prohibited act or intentionally fail to do the required act but must do so with the specific intent. [¶] The act and intent required are explained in the instruction for each crime or allegation.” Thus, the jurors were informed that in order to find Washington guilty on count 3, they had to find he committed the prohibited act, i.e. making a threat of death or great bodily injury, with the specific intent, i.e. Washington intended his statement be understood as a threat. Given these instructions, it would have added nothing to insert the word “specific” into the third element of the CALCRIM No. 1300 instruction.
Washington asserts, however, that in this case the jurors could not correlate CALCRIM No. 252’s specific intent language with the elements of CALCRIM No. 1300 because the crime was named differently in each instruction and on the verdict form. We disagree. The trial court instructed jurors pursuant to CALCRIM No. 252 that the crime listed in count 3, “threats of great bodily harm,” required specific intent. The CALCRIM No. 1300 instruction given began with the statement that Washington “is charged in Count 3 with having made a criminal threat.” The verdict form contains a heading “Third Count” and under that states the jury finds Washington guilty of the felony “Threaten with Intent to Terrorize Another Person, to wit: Jeffrey Davis, in violation of Section 422 of the Penal Code, as charged in the third count of the Information.” Although the two instructions and the verdict form each give the crime a different name, it is clear that all of them pertain to count three, which is the only charge containing language remotely related to “threats.” We fail to see how the different titles given the crime would cause the jury to be unable to correlate CALCRIM No. 252 with CALCRIM No. 1300. Accordingly, as the People point out, there is no reason to depart from the presumption on appeal that the jury understood and followed the instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331.)
CALCRIM No. 224
The court instructed the jury with CALCRIM No. 224, which told the jury: “If you can draw two or more reasonable conclusions from the circumstantial evidence, one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.” Washington argues this CALCRIM language lowered the prosecution’s standard of proof by allowing the jury to find guilt if they believed Washington is “not innocent.”
Washington relies on People v. Han (2000) 78 Cal.App.4th 797 (Han), in which Division Three of the Fourth District found fault with similar language in CALJIC No. 2.01, the predecessor to CALCRIM No. 224. The appellate court criticized as “inapt” and “potentially misleading” the use of term “innocence” rather than “a lack of finding of guilt” in the instruction, but it concluded any such error was harmless “because the other standard instructions make the law on the point clear enough.” (Han, at p. 809.)
Han’s rationale is not persuasive and has been rejected both by this court in People v. Ibarra (2007) 156 Cal.App.4th 1174, and the Third District in People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson). As the Anderson court explained: “We cannot agree with the Han court’s criticism of CALJIC No. 2.01. For a defendant to be found not guilty, it is not necessary that the evidence as a whole prove his innocence, only that the evidence as a whole fails to prove his guilt beyond a reasonable doubt. In other words, a not guilty verdict is based on the insufficiency of the evidence of guilt.” (Anderson, supra, 152 Cal.App.4th at p. 932.) Earlier in its opinion, the Anderson court explained: “CALCRIM No. 224 does not set out basic reasonable doubt and burden of proof principles; these are described elsewhere. Although the instruction reiterates that each fact necessary for conviction must be proved beyond a reasonable doubt, the obvious purpose of the instruction is to limit the use of circumstantial evidence in establishing such proof. It cautions the jury not to rely on circumstantial evidence to find the defendant guilty unless the only reasonable conclusion to be drawn from it points to the defendant’s guilt.” (Anderson, supra, at p. 931.) Contrary to Washington’s contention, CALCRIM No. 224 does not undermine the prosecution’s burden of proof and the court did not err in giving it.
Imposition of Aggravated Term
Washington argues the imposition of the aggravated terms of nine years on the count 4 assault with a semiautomatic firearm conviction and ten years on the section 12022.5, subdivision (a) firearm enhancement violated his federal constitutional rights to trial by jury and proof beyond a reasonable doubt.
At the sentencing hearing, the court denied Washington’s request to strike his prior strike convictions and found, inter alia, as recommended by the probation officer, a circumstance in aggravation his prior convictions as an adult and sustained petitions in juvenile delinquency proceedings were numerous, found no circumstances in mitigation, and imposed a sentence of 32 years to life plus a determinate term of 23 years, which included aggravated terms of nine years for the assault conviction and 10 years for the personal use of a firearm enhancement. (§§ 245, subd. (b), 667, subds. (a), (e)(2)(A)(iii), 667.5, subd. (b), 1170.1, subd. (c)(2)(A)(iii), 12022.5, subd. (a); Cal. Rules of Court, rule 4.421(b)(2).)
The court also found the following aggravating factors: (1) Washington had engaged in violent conduct which indicated a serious danger to society demonstrated by his prior convictions; (2) Washington was on parole when the crime was committed; and (3) Washington’s prior performance on juvenile probation, misdemeanor probation and parole was unsatisfactory. (Cal. Rules of Court, rule 4.421(b)(1), (4) (5).)
Before imposing the sentence, the court considered Washington’s criminal record, which the probation report documented as including three 1986 strike convictions (two for first degree burglary and one for assault with a deadly weapon, a hammer and a hatchet, on the victim of one burglary) (§§ 245, subd. (a)(1), 459), a 1991 conviction for possession of cocaine base for sale (Health & Saf. Code, § 11351.5), a 1995 conviction for possession of cocaine (Health & Saf. Code, § 11350), and a 2000 conviction for first degree burglary (§ 460, subd. (b).) The probation report also documented misdemeanor priors in 1988 for vandalism and assault (§§ 594, subd. (b)(2), 240), 1988 for burglary (§ 460), 1993 for willful infliction of corporal injury on a spouse (§ 273.5, subd. (a)), 1994 for battery and willful infliction of corporal injury on a spouse (§§ 243, subd. (a), 273.5, subd. (a)), and 2006 for possession of drug paraphernalia (Health & Saf. Code, § 11364).
The probation report also documents three juvenile adjudications, all of which occurred in 1983.
“Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Cunningham v. California (2007) 549 U.S. ___, __ [166 L.Ed.2d 856, 873; 127 S.Ct. at 856, 868] (Cunningham), quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) (italics added).) “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, [549] U.S. at p. __, [166 L.Ed.2d at p. 873] 127 S.Ct. at p. 868; Blakely [v. Washington (2004)] 542 U.S. [296,] 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 [] (Almendarez-Torres).” (People v. Black (2007) 41 Cal.4th 799, 818 (Black II).) “‘[R]ecidivism … is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ (Almendarez-Torres, supra, at p. 243.)” (Black II, supra, 41 Cal.4th at p. 818.)
In short, the “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816; italics added.) Washington’s record of prior convictions justified the court’s imposition of the aggravated term. Error, if any, in the court’s use of pre-Cunningham verbiage from the rules of court about his engaging in violent conduct which indicates a serious danger to society as demonstrated by his prior convictions, that he was on parole when the crime was committed, and his poor performance on parole, rather than post-Cunningham verbiage specifically about his record of prior convictions, was harmless beyond a reasonable doubt. (See People v. Sandoval (2007) 41 Cal.4th 825, 838-839.)
Washington recognizes we are bound by Black II, but argues it is wrongly decided and distinguishable from this case because the trial court cited his prior juvenile history as well as his prior adult convictions when it imposed the aggravated terms. Washington contends the recidivism exception does not apply to prior juvenile adjudications, citing United States v. Tighe (9th Cir. 2001) 266 F.3d 1187. The issue of whether a juvenile adjudication cannot qualify as a prior strike under federal constitutional law has been considered and rejected by numerous appellate courts in California, including this court (People v. Buchanan (2006) 143 Cal.App.4th 139, 141; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1311, 1313-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075, 1077-1078; People v. Bowden (2002) 102 Cal.App.4th 387, 390-394; cf. People v. Palmer (2006) 142 Cal.App.4th 724), and is pending before the California Supreme Court in People v. Nguyen, review granted July 30, 2007, S154847.
Even if it was impermissible for the trial court to consider Washington’s juvenile history, however, Washington’s numerous prior convictions as an adult were sufficient to support the “numerous and of increasing seriousness” factor without resort to his juvenile history and were adequate to render him eligible for the upper term. Accordingly, the trial court’s reliance on the additional facts of his juvenile adjudications to impose the aggravated terms does not render their imposition unconstitutional. (See Black II, supra, 41 Cal.4th at p. 816.)
The Prior Prison Term
Washington contends there was insufficient evidence to prove one of the section 667.5, subdivision (b), prior prison term allegations. We disagree.
One of the prior prison term allegations under section 667.5, subdivision (b) was that Washington “was on or about December 6, 1999” convicted in Kern Superior Court case number 59136 of “the crime of Health and Safety Code section 11350, a felony.” At the court trial on the prior conviction allegations, Washington’s section 969, subdivision (b) packet of prior convictions and incarcerations was admitted into evidence. In reciting the convictions reflected in the packet’s contents, the prosecutor explained that Washington was “convicted and sentenced again in 1995, Case Number 59136. Initially given life but that was reduced to six years from an appeal. Convicted and sentenced again in Case Number 77973, violation of Penal Code 460(b). Given six years on July 8th, 2000.”
The packet contains an abstract of judgment reflecting that on December 13, 1994, Washington had been convicted in Kern Superior Court case number SC 59136 A of possession of a narcotic substance under Health & Safety Code section 11350, subdivision (a), and sentenced on February 3, 1995, to 25 years to life pursuant to the three strikes law. The abstract has a diagonal line drawn through it, over which is written “amended 12-6-99.” The Department of Corrections and Rehabilitation’s Chronological History states that an amended abstract of judgment was received on December 6, 1999, after a writ of habeas corpus granting reduction in term from a three strike term of 25 years to a two strike term of six years. The packet also contains an abstract of judgment reflecting that on May 19, 2000, Washington was convicted in Kern Superior Court case number SC079973A of larceny (section 460, subdivision (b)), and sentenced on July 6, 2000, to a total prison term of six years.
Defense counsel had the opportunity to review the packet and actually challenged a portion of it that is not relevant to this issue. At the conclusion of the trial on the prior prison term allegations, the court found true that “on or about December 13, 1999, in the Superior Court of the State of California and County of Kern in Case No. 59136A, the Defendant was convicted of a violation of Health and Safety Code section 11350, a felony … and that he had then served a separate term in state prison for one year or more and did not remain free of prison custody for and did commit an offense resulting in a felony conviction during the period of five years subsequent to the conclusion of that term, within the meaning of Penal Code section 667.5(b).”
Washington notes it is the prosecutor’s burden to prove a charged sentence enhancement beyond a reasonable doubt, citing People v. Tenner (1993) 6 Cal.4th 559, 566, in which the court stated that “[d]ue process requires the prosecution to shoulder the burden of proving each element of a sentence enhancement beyond a reasonable doubt.” Washington asserts there was insufficient evidence to prove the information’s allegation that he was convicted on or about December 6, 1999 in Kern Superior Court case number 59136 of a violation of Health and Safety Code section 11350, or to support the court’s finding that he was convicted on December 13, 1999 in the same case number of a violation of the same section, because the packet does not contain an abstract of judgment which shows a “1999 Kern County Case Number 59136 Health and Safety Code section 11350 felony conviction in 1999. Rather, it shows that such a conviction took place in 1995.” From this, Washington argues there was “no substantial evidence from which a reasonable trier of fact could have found that the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt of the charged 1999 prior conviction. Mr. Washington was never charged with the 1995 prison prior that the trial found ‘true.’ Nor was such a 1995 prison prior ever admitted by [Washington] or proved by the prosecution.” Washington concludes that under section 667.5, subdivision (d), and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, the true finding regarding this prior conviction allegation must be reversed and the additional one-year sentence based on it stricken.
While Washington is correct that the prosecution must plead and prove his prior convictions, it does not follow that an error in pleading the date of conviction is tantamount to a failure of proof on that issue. The issue presented more properly is characterized as a variance between pleading and proof, between a fact alleged and a fact proven in support of the prior conviction, rather than a failure to prove the conviction. Addressing the issue in that context, we reject it because Washington forfeited it and he has not shown it affected his substantial rights.
Importantly, Washington did not challenge in the trial court his notice and opportunity to defend against the allegations, and did not object below to the variance in the information’s allegations and the proof at trial. He has thus forfeited the issue for appeal. (Colbert v. Colbert (1946) 28 Cal.2d 276, 281.) “[A] variance may be disregarded where the action has been as fully and fairly tried on the merits as though the variance had not existed.” (Hayes v. Richfield Oil Corp. (1952) 38 Cal.2d 375, 382.)
Washington’s argument also fails because he has not shown the discrepancy between the accusatory pleading and the proof was material, i.e., it misled him in preparing his defense. “Under the generally accepted rule in criminal law a variance is not regarded as material unless it is of such a substantive character as to mislead the accused in preparing his defense, or is likely to place him in second jeopardy for the same offense.” (People v. Williams (1945) 27 Cal.2d 220, 226; see also In re Michael D. (2002) 100 Cal.App.4th 115, 127-128.) This is in keeping with section 960, which provides that “no accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.” As Washington never has claimed the information failed to adequately notify him of the charges against him, that he was misled in preparing his defense or placed in second jeopardy for the same offense, the mere fact the evidence did not match the information’s allegations does not compel reversal. (Accord, In re Michael D., supra, 100 Cal.App.4th at pp. 127-128.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Dawson, J., Kane, J.