Filed 12/16/15



         IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S216648
           v.                        )
                                     )                      Ct.App. 4/2 E052297
RICHARD JAMES GOOLSBY,               )
                                     )                    San Bernardino County
           Defendant and Appellant.  )                   Super. Ct. No. FSB905099
____________________________________)

                       ORDER MODIFYING OPINON AND
                     DENYING PETITION FOR REHEARING
THE COURT:
        The opinion herein, filed on October 15, 2015, published at 62 Cal.4th 96, is
modified as follows:
        In 62 Cal.4th at page 103, immediately before the last paragraph in part II,
three new paragraphs are added, reading as follows:
        Defendant argues that if the Court of Appeal was correct in holding that the
evidence was insufficient to support the charge of arson of an inhabited structure, it
necessarily follows that the trial court should have entered a judgment of acquittal of
that charge without submitting it to the jury. Had that occurred, he notes, the jury
would not have been instructed on arson of property as a lesser included offense, and
Kellett, supra, 63 Cal.2d 822, would have barred a later prosecution for arson of
property. Therefore, he argues, Kellett necessarily bars his reprosecution on that
charge.



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       If the trial court had had the benefit of the Court of Appeal’s opinion, however,
its most likely ruling on a motion for judgment of acquittal would not have been to
grant the motion, but rather to have amended count one of the information, which
charged defendant with “the crime of arson of an inhabited structure, in violation of
Penal Code section 451[, subdivision] (b),” to instead charge him with “the crime of
arson of an inhabited structure or inhabited property, in violation of Penal Code
section 451[, subdivision] (b).” (Italics added.)
       An information may be amended “for any defect or insufficiency, at any stage
of the proceedings,” so long as the amended information does not “charge an offense
not shown by the evidence taken at the preliminary examination.” (§ 1009.) “If the
substantial rights of the defendant would be prejudiced by the amendment, a
reasonable postponement not longer than the ends of justice require may be granted.”
(People v. Witt (1975) 53 Cal.App.3d 154, 165.) If there is no prejudice, an
amendment may be granted “up to and including the close of trial.” (People v. Graff
(2009) 170 Cal.App.4th 345, 361; see People v. Fernandez (2013) 216 Cal.App.4th
540, 554; People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1580-1581.) Here,
because the prosecution presented strong evidence both at the preliminary hearing and
at trial that defendant burned either an inhabited structure or inhabited property,
which is all that section 451, subdivision (b) requires, it is unlikely that defendant
could have shown that the amendment described above would have prejudiced his
rights. Had the trial court amended the information, defendant could properly have
been convicted of violating section 451, subdivision (b), leaving him far worse off
than he currently is.
       This modification does not change the judgment.
       The petition for rehearing is denied.




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