Filed 3/17/15 P. v. Edwards CA3
                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Glenn)
                                                            ----
THE PEOPLE,                                                                                  C074630

                   Plaintiff and Respondent,                                   (Super. Ct. No. 12SCR07919)

         v.

LAIRD JOSEPH EDWARDS,

                   Defendant and Appellant.



         Defendant Laird Joseph Edwards was charged by complaint with receiving stolen
property (marijuana plants) (Pen. Code, § 496, subd. (a); unless otherwise stated,
statutory section references that follow are to the Penal Code; count I), two counts of
resisting an officer with force or violence (§ 69), [count III (Officer Kuwata), count IV
(Deputy Rasmussen)], and two counts of deterring and preventing an officer from
performing his or her duties with force or violence (§ 69) [count V (Officer Kuwata),
count VI (Deputy Rasmussen)]. It was further alleged that defendant had a prior strike
conviction and had served a prior prison term.
         Defendant waived his right to a preliminary hearing and the complaint was
deemed an information. Defendant waived his right to a jury trial, requesting a court
trial.


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       After a bench trial, the court convicted defendant on the receiving offense and
sustained the strike prior and prior prison term based on defendant’s admissions when he
testified as well as documentary evidence. The court “deemed” counts III and IV to
charge misdemeanor resisting or obstructing of a peace officer (§ 148), convicted
defendant on these two counts [count III (Officer Kuwata), count IV (Deputy
Rasmussen)], and added a misdemeanor resisting or obstructing a peace officer count
[count VII (Sergeant Walter)] of which defendant was also found guilty.
       Although the clerk’s minutes show that the court convicted defendant on count V
as well, the court’s oral pronouncement of judgment did not amend or find defendant
guilty of count V. Thus the court did not find defendant guilty of either count V or count
VI. The court’s oral pronouncement of judgment prevails. People v. Farell (2002)
28 Cal.4th 381, 384, fn. 2.)
       For completeness, we note that codefendant Jamie Michelle Barbeiro was also
charged in count I and was charged separately and alone in count II. The court acquitted
codefendant Barbeiro on both counts.
       The court sentenced defendant to state prison for an aggregate term of seven years,
that is, the upper term of three years doubled for the strike prior for the receiving offense
plus one year for the prior prison term. The court imposed concurrent terms for the three
misdemeanor counts (counts III, IV, and VI).
       Defendant appeals. He contends the trial court abused its discretion and violated
his constitutional rights in amending the information to change the offenses charged and
to add an additional charge naming a new victim or, in the alternative, counsel rendered
ineffective assistance in failing to object to the amendment. We will reverse count VII.
Defendant also contends that the trial court imposed an unauthorized $1,960 fine and that
counsel rendered ineffective assistance in failing to object to the fine. We will remand to
the trial court to set forth the statutory authority for the fine and assessments.



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                                FACTS AND PROCEEDINGS

       About 9:30 p.m. on October 8, 2012, K.P., watching on a security camera installed
inside his home, saw a person pull two marijuana plants out of his backyard and go over
the fence. K.P. had a prescription for medical marijuana. K.P. went into his backyard
and looked over the fence. He saw the thief riding away on a bicycle. K.P. followed the
thief and watched the thief go into a house trailer. K.P. called the police. Officer Kelly
Kuwata, Deputy Heath Rasmussen, and Sergeant Carl Walter responded to the call.
Officer Kuwata and Sergeant Walter went to the back door of the trailer while Deputy
Rasmussen went to the other side. Officer Kuwata knocked on the back door and Jamie
Barbeiro answered. Barbeiro claimed no one else was present and denied there was any
marijuana in the trailer. Officer Kuwata smelled marijuana as soon as she went up the
stairs to the back door and the smell was extreme when the door opened.
       Eventually, Barbeiro admitted that defendant was present and Barbeiro asked
defendant to come out of the bathroom. Defendant came out, cursed at the officers and
told them to get a warrant. Officer Kuwata restrained defendant by grabbing his right
wrist. Defendant then charged the officers and knocked Officer Kuwata and Sergeant
Walter off the porch. Officer Kuwata injured her knees and hip. Deputy Rasmussen
joined the other officers and all three were on the ground struggling with defendant.
Defendant was eventually arrested.
       Barbeiro led Officer Kuwata to the master bedroom where the two marijuana
plants belonging to K.P. were found.
       Defendant’s next door neighbor testified that defendant did not push the officers
off the porch and claimed defendant was unable to move his hands to be cuffed.
       Defendant testified that he had not entered K.P.’s backyard. He claimed he saw a
couple of men riding on their bicycles down the street and the two plants fell from their
bicycles. Defendant found the plants on the ground, picked them up, and took them



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home. He denied charging at or pushing the officers and denied trying to injure them,
claiming he was only trying to protect himself. Defendant claimed Officer Kuwata
threatened to get a search warrant if he did not turn over the marijuana plants. Defendant
stated that he knew “Officer Walter was trying to grab [his] hand away from [his]
stomach and [he] was trying to protect it . . . that was the only time [he] really resisted.”
Defendant testified that he started to get the marijuana plants to give to Deputy
Rasmussen, an officer who did not testify. Defendant stated that the deputy then grabbed
his (defendant’s) leg.

                                         DISCUSSION

                                               I

                                     Amended Charges

       Defendant contends the trial court abused its discretion by amending the charges
and adding a new charge to the information, naming a new victim. He argues that since
insufficient evidence supported the resisting with force or violence counts, the court
should have dismissed the four counts. Defendant claims the three misdemeanor counts
must be reversed because the court had no statutory authority to make the amendments,
exceeded its jurisdiction by acting as a prosecutor, judge and jury, and violated the
separation of powers doctrine when it amended the charging document sua sponte.
Defendant claims his constitutional right to due process was violated.
       The People respond that defendant has forfeited his right to raise the issue on
appeal by failing to object to the court’s amendment below. On the merits, the People
argue that section 1009 permitted the court to amend sua sponte. In any event, the People
claim that defendant has failed to demonstrate prejudice by the amendment.
       We conclude that the trial court erred in adding a new count to the information and
that defense counsel’s failure to object constituted ineffective assistance of counsel,
resulting in prejudice to defendant. With respect to the amendment of counts III and IV


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to charge misdemeanor resisting, we conclude that defense counsel did not render
ineffective assistance of counsel in failing to object.
       In closing argument, with respect to the resisting or deterring with force charges,
the prosecutor asserted Officer Kuwata was pushed off the porch, Sergeant Walter was
pushed back, and Deputy Rasmussen fell to the ground in handcuffing defendant.
Defense counsel argued that the evidence supported the lesser-included misdemeanor
offense of resisting the officers, specifically referring to Officer Kuwata and Sergeant
Walter. The trial court noted that the information did not charge defendant with resisting
Sergeant Walter.
       With respect to the four section 69 counts, the court “deemed” only counts III and
IV to charge misdemeanor resisting, and convicted defendant on count III (Officer
Kuwata) and count IV (Deputy Rasmussen) and convicted defendant on this added count.
The court added misdemeanor resisting as count VII (Sergeant Walter). Defendant did
not object.
       Section 1009 provides: “An indictment, accusation or information may be
amended by the district attorney, and an amended complaint may be filed by the
prosecuting attorney, without leave of court at any time before the defendant pleads or a
demurrer to the original pleading is sustained. The court in which an action is pending
may order or permit an amendment of an indictment, accusation or information, or the
filing of an amended complaint, for any defect or insufficiency, at any stage of the
proceedings, or if the defect in an indictment or information be one that cannot be
remedied by amendment, may order the case submitted to the same or another grand jury,
or a new information to be filed. The defendant shall be required to plead to such
amendment or amended pleading forthwith, or, at the time fixed for pleading, if the
defendant has not yet pleaded and the trial or other proceeding shall continue as if the
pleading had been originally filed as amended, unless the substantial rights of the
defendant would be prejudiced thereby, in which event a reasonable postponement, not

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longer than the ends of justice require, may be granted. An indictment or accusation
cannot be amended so as to change the offense charged, nor an information so as to
charge an offense not shown by the evidence taken at the preliminary examination. A
complaint cannot be amended to charge an offense not attempted to be charged by the
original complaint, except that separate counts may be added which might properly have
been joined in the original complaint. The amended complaint must be verified but may
be verified by some person other than the one who made oath to the original complaint.”
(Italics added.)
       “Due process requires that a criminal defendant be given fair notice of the charges
to provide an opportunity to prepare a defense and to avoid unfair surprise at trial.
[Citations.] An accusatory pleading stating the charged offense provides the defendant
not only with notice of the offense actually charged but also with notice of any
necessarily included offenses. [Citation.]” (People v. Tardy (2003) 112 Cal.App.4th
783, 786; People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1581.)
       Section 69 provides: “Every person who attempts, by means of any threat or
violence, to deter or prevent an executive officer from performing any duty imposed upon
such officer by law, or who knowingly resists, by the use of force or violence, such
officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand
dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a
county jail not exceeding one year, or by both such fine and imprisonment.”
       Section 69 “sets forth two separate ways in which an offense can be committed.
The first is attempting by threats or violence to deter or prevent an officer from
performing a duty imposed by law; the second is resisting by force or violence an officer
in the performance of his or her duty. [Citation.]” (In re Manuel G. (1997) 16 Cal.4th
805, 814.) Section 148, subdivision (a)(1) is a necessarily included lesser offense to the
second way of violating section 69 [resistance by force] but is not a lesser included



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offense to a charge that defendant violated section 69 in the first way. (People v. Smith
(2013) 57 Cal.4th 232, 242.)
       Here, the accusatory pleading charged both resisting by force [counts III (Officer
Kuwata) and IV (Deputy Rasmussen)] and deterring or preventing with threats of force or
violence [counts V (Officer Kuwata and VI (Deputy Rasmussen)]. Thus, defendant was
on notice that he could be convicted of the necessarily included offense of misdemeanor
resisting in counts III and IV (resisting by force), but not counts V and VI (deterring or
preventing with threats of force or violence).
       With respect to defendant’s challenge to the trial court’s authority to amend the
information to charge misdemeanor resisting in counts III and IV and defense counsel’s
failure to object, defendant’s claims lack merit. We reject defendant’s argument that the
court could not amend counts III and IV sua sponte without a motion by the prosecutor.
The court had the statutory authority to amend the charging document on its own motion.
(§ 1009 [“The court . . . may order . . . an amendment of an indictment, accusation, or
information . . . for any defect or insufficiency, at any stage of the proceedings”]; People
v Carrasco (2006) 137 Cal.App.4th 1050, 1057.) To establish ineffective assistance of
counsel, defendant must demonstrate that counsel’s performance was deficient and that
defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668,
687, 691-692 [80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Even had defense counsel objected, the trial court did not err in “deeming” counts III and
IV to charge the necessarily included lesser offense of misdemeanor resisting.
Defendant’s due process rights were not violated because he had notice of the lesser
included offense of which he was convicted and we can discern no prejudice to his
substantial rights.
       In any event, since misdemeanor resisting or obstructing an officer is a lesser
included offense to the offense charged in counts III and IV, the court need not have
amended those counts prior to finding defendant guilty of the misdemeanors. (§ 1159

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[“The . . . judge if a jury is waived, may find the defendant guilty of any offense, the
commission of which is necessarily included in that with which he is charged . . . .”].)
This resolves defendant’s separation of powers argument because, even if we decided the
court violated that doctrine by amending the pleadings without a motion from the
prosecutor, the judge had the authority to find the defendant guilty of the misdemeanors
as lesser included offenses. Defendant thus suffered no prejudice.
       We do not reach the same conclusion with regard to count VII.
       We first observe that defense counsel failed to object to the trial court’s
amendment of the information to add an additional misdemeanor resisting charge,
naming Sergeant Walter as the officer defendant resisted.
       Generally, a defendant’s failure to “object to the amendment of the information or
ask for a continuance,” forfeits his right to assert the error on appeal. (People v. Collins
(1963) 217 Cal.App.2d 310, 313; People v. Spencer (1972) 22 Cal.App.3d 786, 799
[“claim that the court erred in ordering the filing of an amended information cannot be
raised for the first time on appeal”]; see also People v. Carrasco, supra, 137 Cal.App.4th
at p. 1056; People v. Carbonie (1975) 48 Cal.App.3d 679, 691.) Anticipating a finding
of forfeiture, defendant claims counsel rendered ineffective assistance in failing to object
to the added charge. We agree.
       Officer Kuwata and Sergeant Walter testified during trial. When the prosecutor
called Deputy Rasmussen to testify, the court intervened, asking, “How’s he going to
change anything that’s been said so far? I want an offer of proof.” The prosecutor stated
that the deputy’s testimony went “to the resistance to him trying to handcuff the
defendant.” The court stated that it had “enough” and did not need the testimony since it
had “already been established.”
       Section 1009 expressly prohibits amending the information to add a charge not
shown by the evidence adduced at the preliminary hearing. Defendant waived his right to
a preliminary hearing and was held to answer on the felony resisting/deterring with

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force/violence counts naming Officer Kuwata and Deputy Rasmussen. Had defense
counsel objected, the information could not have been amended to add a new charge of
misdemeanor resisting the third officer. There is no satisfactory explanation for defense
counsel’s failure to object to the added charge and defendant suffered prejudice as a
result, being convicted of a charge not included in the complaint to which he had waived
his right to a preliminary hearing. (People v. Peyton (2009) 176 Cal.App.4th 642, 652-
656; People v. Winters (1990) 221 Cal.App.3d 997, 1005-1007.) Accordingly
defendant’s conviction on count VII is reversed and that count is ordered dismissed.
       With respect to counts V and VI, the court did not “deem” those counts to also
charge a lesser offense and rightly so since those counts charged deterring preventing an
officer from his duties with threats of force or violence, not resisting an officer with
force. We note that the court was required to announce its findings as to counts V and VI
(§ 1167) which it failed to do. That notwithstanding, the court did find on the record that
defendant did not use force or violence as charged in these counts and, since the record is
silent on the matter, presumably also found that defendant did not threaten to use force or
violence. We conclude that the record, reasonably read, reflects a trial court finding that
counts V and VI were not proven beyond a reasonable doubt.

                                              II

                                      Unauthorized Fine

       The probation report had recommended a $1,960 “Base Fine, plus mandatory
assessments to be calculated by the Probation Department (18 PC, 19 PC).” At
sentencing, the trial court ordered defendant to pay “a fine of $1,960 plus penalty
assessments” and the sentencing minutes so reflect. The abstract of judgment, however,
erroneously reflects that the court orally ordered the fine pursuant to section 1202.5
which is inapplicable in this case.




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       Defendant contends that the trial court imposed an unauthorized $1,960 fine.
Acknowledging that counsel did not object, defendant claims counsel rendered
ineffective assistance in failing to object to the imposition of the $1,960 fine. The People
concede that the matter must be remanded to permit the trial court to specify the statutory
authority for the fine and assessments. We agree and will remand the matter to the trial
court to make the necessary findings. (People v. High (2004) 119 Cal.App.4th 1192,
1200-1201.)

                                       DISPOSITION

       Count VII (misdemeanor resisting of Sergeant Walter) is reversed and the count is
ordered dismissed. The matter is remanded to the trial court to specify the statutory
authority for the $1,960 fine and assessments. The court will prepare an amended
abstract of judgment thereafter, specifying the statutory authority for the fine and
assessments. The amended abstract of judgment shall also delete reference to a third
count of misdemeanor resisting (which the abstract erroneously refers to as count V,
rather than count VII) and reflect concurrent one-year terms for those crimes charged in
counts III and IV. The court shall thereafter forward a certified copy of the amended
abstract of judgment to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.


                                                        HULL                  , J.


We concur:


      BLEASE                , Acting P. J.


      MURRAY                , J.



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