Filed 12/23/13 P. v. Salazar
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)




THE PEOPLE,                                                                                   C073245

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F00232)

         v.

ROGELIO ROBLES SALAZAR,

                   Defendant and Appellant.




         A jury found defendant Rogelio Robles Salazar guilty of three counts of lewd and
lascivious acts with a child under age 14 (Pen. Code,1 § 288, subd. (a); counts two, six, &
seven), two counts of aggravated lewd acts with a child under age 14 (§ 288, subd. (b)(1);
counts one & three), aggravated sexual assault (rape) of a child (§ 269, subd. (a)(1); count
four), and aggravated sexual assault (sodomy) of a child (§ 269, subd. (a)(3); count five).
The jury found true an allegation that defendant committed the foregoing offenses against




1   Further statutory references are to the Penal Code unless otherwise indicated.

                                                             1
two or more victims. (§ 667.61, subd. (e)(4).) Defendant was sentenced to prison for an
aggregate term of 75 years to life.
       On appeal, defendant contends the trial court erred when it (1) granted the
prosecutor’s motion to amend the operative information during jury deliberations to add
the multiple-victim allegation, and (2) gave a jury instruction that did not require jurors to
make a finding on each element of the multiple-victim allegation before concluding the
allegation was true. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       In June 2010, the prosecution filed a complaint charging defendant with six sexual
offenses against victims J.V., Jo.V., and A.D. The complaint alleged three counts of
lewd acts (§ 288, subd. (a); counts four, five, & six), one count of aggravated lewd acts
(§ 288, subd. (b)(1); count three), and two counts of aggravated sexual assault (§ 269,
subds. (a)(1) & (a)(3); counts one & two). The complaint alleged that defendant
committed the offenses against more than one victim within the meaning of section
667.61, former subdivision (e)(5), now subdivision (e)(4). (See Stats. 2010, ch. 319,
§ 16.) The underlying facts are not at issue and need not be set forth in this opinion.
       Following a preliminary examination, the trial court found sufficient evidence that
defendant committed each count and that the multiple-victim allegation was true. The
court deemed the complaint an information.
       In August 2012, the prosecution filed an amended information that alleged the
same counts and multiple-victim allegation as the original information.
       In October 2012, the prosecution filed an amended consolidated information that
added a second count of aggravated lewd acts (§ 288, subd. (b)(1)) involving a fourth
victim, J.S. The underlying facts of that offense are not at issue and need not be set forth
in this opinion. The amended consolidated information included the same counts and
multiple-victim allegation as the original information and the amended information.



                                              2
         On November 27, 2012, after jurors and alternate jurors were sworn to try the
cause, the prosecutor proposed to file a second amended consolidated information. This
exchange ensued:
         “THE COURT: . . . [¶] . . . [¶] I understand the prosecution has an Amended
Information to file. [¶] . . . [¶] . . . Can you just tell me what the charges are in general?
         “[THE PROSECUTOR]: Mainly, Your Honor, I changed dates and ages. Some
of the dates were off by, like, two days. On Counts 6 and 7, I just made it ‘first time,’
‘last time.’ I think originally it said, while in the chicken barn. I made it ‘first time,’ ‘last
time.’
         “I provided the Amended Information to [defense counsel]. I have not made any
substantive changes. It is still seven counts. All the charges are still the same so it is just
the dates that were changed.
         “THE COURT: Have you had an adequate opportunity to review the proposed
Amended Information, [defense counsel]?
         “[DEFENSE COUNSEL]: I have. I submit it, Your Honor.
         “THE COURT: It, appearing that the changes are not significant and don’t
prejudice the defense at this point, I will order it filed.”
         According to the trial court’s minutes, the second amended consolidated
information “contained no substantive changes per [the deputy district attorney]
(corrections to dates and minor non-substantive language changes only).”
         Contrary to the prosecutor’s representation and the parties’ evident understanding,
the second amended consolidated information differed from the prior amended
consolidated information in that it omitted these two consecutive paragraphs:
         “NOTICE: Conviction of any [of] the offenses will require the court to order you
to submit to a blood test evidence [sic] of antibodies to the probable causative agent of
Acquired Immune Deficiency Syndrome (AIDS). Penal Code section 1202.1.



                                                3
       “It is further alleged that the defendant, ROGELIO SALAZAR, committed the
above described offense(s) against two or more victims, within the meaning of Penal
Code Section 667.61(e)(5).”
       The jury began its deliberations on the morning of December 6, 2012. Around
4:00 p.m., the jury requested readback of the testimony of J.V., the victim of the two
counts of aggravated sexual assault and one count of aggravated lewd acts.
       The next morning, December 7, 2012, the prosecutor asked to amend the second
amended consolidated information to add the multiple-victim allegation, which
inadvertently had been omitted. The trial court declined to allow the amendment unless
the jury returned guilty verdicts that put the allegation into play. The court indicated that,
if such verdicts were returned, the court would consider allowing the amendment along
with further instruction and deliberations, thus treating the matter “as a bifurcated trial”
on the multiple-victim allegation.
       During the afternoon session, the prosecutor presented some decisional authority
that gives a trial court discretion to allow amendment of the information at any point in
the proceeding. The trial court remarked: “. . . I believe all of us were under the
impression that this was a life case. We conducted the jury selection with that in mind. I,
frankly, didn’t pay attention to exactly why it was a life case; but, apparently, it is that
particular special allegation that makes it a life case.”
       Over defense counsel’s objection, the trial court allowed the prosecutor to file a
third amended consolidated information. Defense counsel waived formal arraignment
and entered a denial of the multiple-victim allegation.
       That afternoon, the jury informed the trial court that it had reached a verdict on six
of the seven counts and was undecided on the remaining count. The court decided to
accept the verdict on the six counts and discuss with the jury whether further deliberation
was wise on the undecided count. But after further discussion, the court declined to
accept verdicts on counts four and five because it needed to provide further instruction

                                               4
clarifying the existing law. The court received guilty verdicts on the four remaining
counts, which involved violations of section 288, subdivision (a) or (b)(1), against three
different victims.
       Based on the jury’s verdict on the four counts, the trial court instructed the jury on
the multiple-victim allegation. Outside the jury’s presence, defense counsel objected to
submission of the multiple-victim issue. The prosecutor countered that “[w]e all were
under the opinion that this was charged. This is not a surprise to defense counsel. It was
a typographical error that was made, and I think it should be allowed.” The jury
ultimately found defendant guilty of the three remaining counts and found the
multiple-victim allegation true.
                                       DISCUSSION
                                           I
                              Amendment of the Information
       Defendant contends the trial court erred prejudicially and violated his federal
constitutional rights when it allowed the prosecution to amend the information during
jury deliberations to add the multiple-victim allegation. (§ 667.61.) We disagree.
                              A. Relevant Principles of Law
       Section 1009 grants the trial court discretion to allow an amendment of an
information “at any stage of the proceedings,” and the trial “shall continue as if the
pleading had been originally filed as amended,” unless the defendant’s substantial rights
would be prejudiced, in which case the court may grant a postponement. (§ 1009.) The
appellate court reviews the trial court’s decision for abuse of discretion. (People v.
Miralrio (2008) 167 Cal.App.4th 448, 458; People v. Bolden (1996) 44 Cal.App.4th 707,
716.) “ ‘[W]here . . . a discretionary power is inherently or by express statute vested in
the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal
except on a showing that the court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v.


                                              5
Gutierrez (2009) 45 Cal.4th 789, 828 (Gutierrez), quoting People v. Jordan (1986)
42 Cal.3d 308, 316.)
                              B. Oversight or Clerical Error
       Defendant first contends the record “does not support a conclusion that the failure
to allege the multiple victims enhancement in the second amended consolidated
information was an oversight by the prosecutor . . . .” Instead, defendant surmises that he
“was facing a lengthy term without the multiple victims enhancement, and the prosecutor
may have believed that alleging that enhancement was simply unnecessary overkill.”
Defendant claims this surmise is supported by the fact the multiple-victim allegation was
never mentioned during the evidentiary portion of the trial, during conferences on jury
instructions, or during the parties’ summations. Defendant argues his claim of an
intentional omission is further supported by the fact the prosecutor did not seek to amend
the second amended consolidated information until the jury requested readback of the
testimony of J.V., the victim of the three most serious charges. Defendant claims it
“appears clear that the prosecutor intentionally dropped the multiple victims
enhancements, but decided that he should reallege that enhancement when he feared that
the jury may not find [him] guilty of the charges on which [J.V.] was the victim.”
       The People counter that defendant “does not cite anything in the record” to
support his confident claim. We conclude the claim has no merit.
       Nothing in the record supports defendant’s speculation that “the prosecutor may
have believed that alleging that enhancement” was “unnecessary overkill.” Nor does the
record suggest why, if the prosecutor did so believe, he would fail to note his
magnanimous deletion of the allegation. The trial court’s failure to speculate along the
lines suggested by defendant was not arbitrary, capricious, or patently absurd.
(Gutierrez, supra, 45 Cal.4th at p. 828.)
       The fact the multiple-victim allegation was never mentioned during the
evidentiary portion of the trial, during conferences on jury instructions, or during the

                                              6
parties’ summations, suggests that the parties hewed to the operative pleading. The fact
the prosecutor did so does not support defendant’s surmise that he was aware of the
omissions from the second amended consolidated information.
       Finally, defendant has not cited any evidence that the timing of the request to
amend, on the heels of the jury’s request for a readback of J.V.’s testimony, was anything
more than coincidental.
                                          C. Surprise
       Defendant argues that the motion to file the third amended consolidated
information was made at a “very late stage in the proceedings” when he “would certainly
have been surprised by it.” The People properly counter that, if defendant was surprised,
it was not for lack of notice. The multiple-victim allegation was charged in every
operative pleading except the second amended consolidated information.
       Section 1009 ensures adequate notice by providing that an information may not be
amended “so as to charge an offense not shown by the evidence taken at the preliminary
examination.” Here, the multiple-victim allegation was shown by the evidence at the
preliminary hearing. Thus, there was no bar to adding the enhancing allegation that had
been charged in the complaint but omitted from the previous information. (People v.
Superior Court (Mendella) (1983) 33 Cal.3d 754, 764, superseded by statute on another
point as stated in In re Jovan B. (1993) 6 Cal.4th 801, 814, fn. 8.)
       Defendant responds that he is not contending lack of notice but is contending that
he was surprised. He relies on People v. Valladoli (1996) 13 Cal.4th 590, which does not
support his argument. In that case, our Supreme Court found the defendant “was not
actually surprised by the new charges” of prior felony convictions, in part because they
had been charged in the original felony complaint and discussed at the preliminary
examination. (Id. at p. 608.) Similarly here, the multiple-victim allegation was charged
in the original complaint and upheld at the preliminary examination. Defendant has not
established that he had been surprised.

                                              7
                                         D. Prejudice
        Defendant claims the record fails to support “at least one of the reasons the trial
court stated” to support its finding that the amendment would not prejudice him. The
court remarked: “I believe all of us were under the impression that this was a life case.
We conducted the jury selection with that in mind. I, frankly, didn’t pay attention to
exactly why it was a life case; but, apparently, it is that particular special allegation [(of
multiple victims)] that makes it a life case.” (Italics added.)
        Defendant notes that this was “a life case” at trial for a different reason: the
second amended consolidated information alleged two counts of aggravated sexual abuse
(§ 269), which each carried terms of 15 years to life. But the gist of the trial court’s
remark was that, because the case had been treated as a life case, defendant was not
prejudiced; why the parties had treated the case as they did was not central to the
prejudice analysis. Any misunderstanding by the court on that point does not show an
abuse of discretion.
        Defendant lastly contends he may have entered into a plea agreement had the
prosecutor not kept changing the allegations. He claims he “could not determine whether
or not to accept a plea offer because he could not tell the amount of potential time he was
facing.” The People counter that the multiple-victim allegation had been sustained at the
preliminary examination and alleged in each charging document through the amended
information; thus, defendant knew he faced a life term depending on the outcome of the
case.
        Defendant replies that, contrary to the People’s claim, the multiple-victim
allegation had not been charged consistently as to all counts. We disagree.
        The complaint, deemed the information, alleged that defendant “committed the
above described offense(s) against two or more victims, within the meaning of Penal
Code Section 667.61(e)(5).” (Italics added.)



                                               8
         The amended information alleged in relevant part that defendant “has been
convicted in the present case or cases of committing an offense specified in subdivision
(c) against more than one victim, within the meaning of Penal Code Section
667.61(e)(5).” (Italics added.)
         The amended consolidated information reverted to the prior terminology, alleging
that defendant “committed the above described offense(s) against two or more victims,
within the meaning of Penal Code Section 667.61(e)(5).” (Italics added.)
         The third amended consolidated information repeated the language of the amended
consolidated information.
         Thus, the amended information differed from its predecessor and successors in
that it hewed more closely to the language of the statute. 2 There is no indication that this
was for the purpose of limiting the allegation to a single count. Nor is there any
indication that the reversion to the prior language was for the opposite purpose.
         During plea negotiations at the time of the amended information, the prosecutor
did not state clearly whether the multiple-victim enhancement applied to more than one
count.
         This exchange followed:
         “THE COURT: . . . [I]t does appear that the potential exposure to [defendant] is a
life term, depending on the outcome of this case.
         “The [P]eople had previously indicated a life offer, and I understand at this point
there is no further refinement or revision or request to engage in any further negotiations
on the resolution of this case.
         “Is that correct, from the [P]eople’s perspective?



2 Section 667.61, former subdivision (e)(5), now subdivision (e)(4), provides: “The
defendant has been convicted in the present case or cases of committing an offense
specified in subdivision (c) against more than one victim.”

                                               9
         “[THE PROSECUTOR]: Yes, your Honor.
         “THE COURT: And defense?
         “[DEFENSE COUNSEL]: Yes, your Honor.”
         This record does not support defendant’s claim that he “could not determine
whether or not to accept a plea offer . . . .” The foregoing exchange gave defense counsel
an opportunity to remark that he could not “tell the amount of potential time [defendant]
was facing” and thus request clarification. Instead, counsel acknowledged that he was
not seeking refinement, revision, or further negotiations.
         In sum, the trial court did not exercise its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of justice. (Gutierrez,
supra, 45 Cal.4th at p. 828.) The trial court’s order allowing amendment of the
information was not an abuse of discretion.
                                                II
                                       Instructional Error
         Defendant contends the trial court erred prejudicially and violated his federal
constitutional rights when it instructed the jury with a modified version of CALCRIM
No. 3181 that, contrary to the pattern instruction, did not specify which of the seven
charged sex offenses were listed in section 667.61, subdivision (c); thus, the instruction
allowed the jury to find the multiple victims allegation true if it simply found him “guilty
of two or more sex offenses.” Defendant claims the defective instruction was prejudicial
because the jury could have based its true finding on his two convictions of aggravated
sexual assault (§ 269), an offense not listed in section 667.61. We find no prejudicial
error.
                                         A. Background
         The operative information alleged three counts of lewd acts upon two victims,
A.D. and Jo.V.; two counts of aggravated lewd acts upon two victims, J.S. and J.V.; and
two counts of aggravated sexual assault of one victim, J.V.


                                                10
       Lewd acts and aggravated lewd acts are listed in section 667.61, subdivisions
(c)(4) and (c)(8). Aggravated sexual assault is not listed.
       The trial court instructed the jury with a modified version of CALCRIM No. 3181,
as follows: “There is an allegation which we generally refer to as a multiple-victim
allegation. [¶] And you are requested to make a finding as to whether or not that
allegation is true or not true. The construction that applies -- and I will provide you with
a copy of this -- is as follows: If you find the defendant guilty of two or more sex
offenses, you must then decide whether the People have proved the additional allegation
that those crimes were committed against more than one victim. [¶] The People have the
burden of proving this allegation beyond a reasonable doubt. If the People have not met
this burden, you must find that this allegation has not been proved.”
       The jury returned a verdict finding the allegation true.
                                        B. Forfeiture
       The People claim defendant forfeited his contention by failing to request a
clarifying instruction from the trial court. (Citing People v. Hillhouse (2002) 27 Cal.4th
469, 503 [“A party may not argue on appeal that an instruction correct in law was too
general or incomplete, and thus needed clarification, without first requesting such
clarification at trial”].) But the trial court’s instruction was not “correct in law,” for
reasons that were apparent to the drafters of CALCRIM No. 3181.
       The first sentence of the pattern instruction provides: “If you find the defendant
guilty of two or more sex offenses, as charged in Counts _____ <insert counts charging
sex offense[s] from Pen. Code, § 667.61(c)>, you must then decide whether the People
have proved the additional allegation that those crimes were committed against more than
one victim.” (Judicial Council of Cal. Crim. Jury Instns. (2013) CALCRIM No. 3181,
p. 863.) The obvious purpose of the blank and the italicized text is to confine the jury’s
attention to sex offenses listed in section 667.61, subdivision (c), thus avoiding precisely
the error raised by defendant. Because the trial court’s modified instruction did not so

                                               11
confine the jury’s attention, and thus allowed consideration of all seven sex offenses of
which defendant had been found guilty, including the two counts of aggravated sexual
assault that were not listed in section 667.61, subdivision (c), the instruction was not
correct in law and defendant did not forfeit his contention.
                                         C. Prejudice
       Defendant contends the erroneous instruction was prejudicial because “it is
impossible to determine whether or not the jury used the count four and count five
violations of section 269 to find that [he] had committed sex offenses against multiple
victims.” We disagree.
       “The beyond-a-reasonable-doubt standard of Chapman [v. California (1967) 386
U.S. 18, 24 [17 L.Ed.2d 705, 710-711] (Chapman)] ‘requir[es] the beneficiary of a
[federal] constitutional error to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.’ (Chapman, supra, 386 U.S. at
p. 24.) ‘To say that an error did not contribute to the ensuing verdict is . . . to find that
error unimportant in relation to everything else the jury considered on the issue in
question, as revealed in the record.’ (Yates v. Evatt (1991) 500 U.S. 391, 403 [114
L.Ed.2d 432] [disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62,
72, fn. 4 [116 L.Ed.2d 385, 399]].) Thus, the focus is what the jury actually decided and
whether the error might have tainted its decision. That is to say, the issue is ‘whether the
. . . verdict actually rendered in this trial was surely unattributable to the error.’ (Sullivan
v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182].)” (People v. Neal (2003)
31 Cal.4th 63, 86.)
       As we have seen, the jury unanimously convicted defendant of five sex offenses
that are listed in section 667.61, subdivision (c), as well as two additional sex offenses
that are not listed in that statute. Because every juror agreed that defendant was guilty of
all counts, no juror had any basis in the record to believe the conviction on count four or
count five somehow was important to his or her determination of the multiple-victim

                                               12
allegation. The fact the jury erroneously was allowed to consider counts four and five
was “unimportant in relation to everything else the jury considered on the issue in
question, as revealed in the record.” (Yates v. Evatt, supra, 500 U.S. at p. 403.) Because
the ability to consider counts four and five could not have altered the jury’s determination
of the multiple-victim issue, the “verdict actually rendered in this trial was surely
unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) Thus, the
instructional error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S.
at p. 24.)
                                       DISPOSITION
       The judgment is affirmed.


                                              BLEASE                    , Acting P. J.


We concur:


             HULL                   , J.


             MURRAY                 , J.




                                             13
