Filed 11/7/13 P. v. Carlton 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




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


THE PEOPLE,                                                                             C069612

                   Plaintiff and Respondent,                                (Super. Ct. No. 10F06233)

         v.

JAMES DOMINIQUE CARLTON,

                   Defendant and Appellant.



         A jury convicted defendant James Dominique Carlton of numerous sexual
offenses against three victims, sustaining an allegation that the existence of multiple
victims qualified him for the alternative sentencing scheme under Penal Code section
667.61.1 Accordingly, the trial court sentenced defendant to seven consecutive
indeterminate terms of 15 years to life in state prison with a consecutive indeterminate
term of 25 years to life for a count involving a forcible offense, all of which was
consecutive to a five-year determinate term for an attempted offense. The court also
imposed a concurrent one-year jail term for the misdemeanor conviction in count 10.


1 Undesignated statutory references are to the Penal Code.



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       On appeal, defendant contends the trial court violated his right to due process
when it allowed the prosecutor to amend the information to conform to the dates proven
at trial. He maintains that the misdemeanor offense in any event is time-barred, a point
the People concede. He also maintains that the abstract of judgment for the determinate
term lists the wrong attempted offense in count 3 (§ 288.7, subd. (b), rather than § 288,
subd. (b)(1)), a point the People concede, and the indeterminate abstract of judgment
includes a $600 fine for the “Serious Habitual Offender Program” that the trial court
expressly declined to impose in its oral rendition of judgment, a point the People also
concede and which the trial court has subsequently corrected in an amended abstract of
judgment. We will modify the judgment by reversing count 10 with directions to dismiss
it, and also direct the trial court to issue a corrected determinate abstract of judgment. As
modified, we will affirm the judgment.

       Defendant does not challenge the sufficiency of the evidence to support the
judgment in any respect, and we do not need to determine prejudice from any error. We
accordingly omit a separate recitation of the facts underlying defendant’s convictions or
the procedural background, and will incorporate the necessary details in the Discussion.

                                      DISCUSSION

               I. The Trial Court Properly Allowed Amendment of the
                      Information at Trial to Conform to Proof

       The second amended information initially alleged that count 9 took place between
March 2004 and March 2005, and count 10 took place between March 2001 and March
2002. The victim testified that the incident in count 9 (defendant rubbing her menstrual
pad) occurred when she was “11 or 12” during cold weather more than 18 months before
her mother’s death in February 2005, probably during the winter of 2003. Count 10
(defendant exposing his penis to her) occurred when she was 10 or 9; she had previously
told the police that it had happened when she was 10.


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       In the midst of the victim’s cross-examination, the prosecutor moved to amend the
dates alleged in count 9 to between March 2002 (the victim’s 11th birthday) and February
2005, and in count 10 to an initial date of March 2000. The trial court indicated it was
inclined to grant a motion to conform to proof, but it agreed to delay its ruling until the
victim finished testifying in case there were any further changes in her estimation of the
dates. Defense counsel did not suggest his cross-examination would be impeded in any
way. After the completion of the victim’s testimony, the trial court returned to the
proposed amendments. Defense counsel remarked, “if there was a way to object to it, I
do. It’s late in the game and the dates keep changing, and I think it’s unfair and maybe
prejudicial to [the] defense, but I understand the law.” However, he did not identify any
specific objection. The trial court found that defendant had not incurred any prejudice in
his ability to cross-examine the witness, noting that “time frames are always fluid in these
types of cases.”

       Section 1009 gives a trial court discretion to amend an information to correct any
defect at any stage of the proceedings (so long as this does not result in charging an
offense not reflected in the preliminary hearing), if a defendant would not be prejudiced
as a result. (People v. Graff (2009) 170 Cal.App.4th 345, 361-362.) Where, as here, a
defendant waived a preliminary hearing, an amendment cannot add offenses not reflected
in the complaint. (People v. Peyton (2009) 176 Cal.App.4th 642, 654.) Defendant
contends amending the date range to a time period other than that alleged in the pertinent
pleading violates this restriction.

       His authority is inapposite. In both cases, enlargement of the date range originally
alleged allowed the prosecution to base a conviction on additional acts that were not
within the original date range. (People v. Dominguez (2008) 166 Cal.App.4th 858, 866
[alternate act of vehicle theft/unauthorized use]; People v. Kellin (1962) 209 Cal.App.2d
574, 575-576 [additional stolen check].) Here, by contrast, the change in dates did not


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alter the nature of the offense charged (People v. Anthony (1912) 20 Cal.App. 586, 590)
nor enlarge the number of acts on which the count was based. The date is not a material
element of the offense (People v. Jones (1990) 51 Cal.3d 294, 316), because alleging that
an offense is committed on or about a date allows the prosecution of any act within the
whole limitations period (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial
Proceedings, § 192, p. 399; Anthony, at p. 590). Thus, it is not apparent there even was
any need to amend the information. (See People v. Sherman (1962) 211 Cal.App.2d 419,
424.)

        Defendant contends he nonetheless was prejudiced even if the amendment was
permissible (even if he did not state any particular basis for a finding of prejudice in the
trial court). He notes that the parties stipulated that he was in custody from August to
November 2002, and from July 2003 to July 2004. That would be material, however,
only if he had an alibi for the entire period originally alleged, which would be eviscerated
by expanding the time range to periods not covered by his alibi. The expansion of the
time period in count 9, by contrast, actually made his first period of custody relevant to
the charge. As for count 10, neither period of custody was relevant either before or after
the amendment. As we do not discern any prejudice, the trial court did not abuse its
discretion in allowing the amendment of the information to conform to proof.

              II. The Misdemeanor Offense in Count 10 Is Time-barred

        Count 10 alleged a violation of section 647.6, subdivision (a), misdemeanor “child
annoyance,” between March 2000 and March 2002. This offense has a one-year
limitations period, which is extended to three years if the victim is under the age of 14.
(People v. Crabtree (2009) 169 Cal.App.4th 1293, 1309; § 802, subds. (a) & (b).) The
amended complaint in which count 10 first appeared was not filed until March 2011. The
People thus properly concede that we must reverse the conviction and direct the trial
court to dismiss count 10.


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                                      DISPOSITION

       Count 10 is reversed with directions to dismiss it as time-barred. As modified, the
judgment is affirmed. The trial court shall prepare an amended determinate abstract of
judgment to reflect that the conviction in count 3 is for an attempted violation of section
288, subdivision (b)(1) and forward a certified copy to the Department of Corrections and
Rehabilitation.




                                                              BUTZ                   , J.



We concur:



             NICHOLSON             , Acting P. J.



             HULL                  , J.




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