Filed 12/5/14 P. v. Lazo CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B252538

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. YA086723)
         v.

JUAN CARLOS LAZO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Eric C. Taylor, Judge. Affirmed.
         Linn Davis, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Scott A. Taryle and John Yang, Deputy Attorneys General, for Plaintiff
and Respondent.
      A jury convicted appellant Juan Carlos Lazo of four counts arising from two
separate incidents: forcible rape (Pen. Code, § 261, subd. (a)(2)),1 corporal injury
to cohabitant (§ 273.5, subd. (a)), and false imprisonment by violence (§ 236),
alleged to have occurred on February 22, 2013, and criminal threats (§ 422, subd.
(a)), alleged to have occurred on or between January 15 and 18, 2013. The jury
acquitted him of another charge, assault with a firearm (§ 245, subd. (a)(2)), also
alleged to have occurred in the January incident, and found not true the firearm use
allegation (§ 12022.5, subd. (a)) in the criminal threats count. He was sentenced to
5 years, 8 months in state prison.
      On appeal from the judgment of conviction, he challenges only his
conviction of criminal threats, charged in count 5 of the information. Although the
crime was alleged to have occurred on or between January 15 and January 18,
2013, appellant contends that the prosecutor’s argument and the jury instructions
regarding count 5 resulted in an implied amendment of the information to charge a
continuing course of conduct encompassing the February 22, 2013, incident. He
asserts that he was improperly convicted of that amended charge, because it was
based on conduct not charged in the information and or proved at the preliminary
hearing. He also contends that the trial court erred in its response to a jury
question regarding count 5, inquiring whether count 5 referred to the January
incident, and that his trial counsel was ineffective for failing to object to court’s
response. We find no error and affirm the judgment.




1
      All further statutory references are to the Penal Code unless otherwise specified.
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                                 BACKGROUND
Trial Evidence
      1. January Incident
      The information alleged that on or between January 15 and January 18,
2013, defendant committed assault with a firearm (count 4), criminal threats (count
5), and used a firearm in both crimes.
      At trial, Norma S. testified that in the first week of 2013, appellant moved
into the house she shared with her parents and her two children. One night in the
middle of January, she and appellant argued over text messages on his phone. The
next morning, Norma went looking for apartments for her and appellant to move
into, and then went to work. In the evening, appellant became angry that she had
not returned home earlier. He forced Norma into the bedroom closet and pointed a
gun at her. He called her a whore, accused her of cheating, and said, “Don’t mess
with me. You don’t know what I’m capable of doing.” He also said he was going
to “kill everybody in the house,” including her father. Norma kneeled and pleaded
with appellant and was able to calm him down. He placed the gun under the box
spring of the bed, hugged Norma, and apologized.
      The gun was never found, and at trial, appellant testified that the gun was a
toy. The jury convicted appellant of criminal threats, but found the firearm use
allegation not true and acquitted on the charge of assault with a firearm.


      2. February Incident
      The information alleged that on February 22, 2013, appellant committed
forcible rape, corporal injury to a cohabitant, and false imprisonment by violence.
      At trial, Norma S. testified that in their bedroom on the morning of February
22, 2013, appellant asked for $1,000 from Norma so that he could move out. She

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said that she would give him the money at the end of the day. Around noon,
appellant came to the cell phone store where Norma was working and asked for
money. When Norma refused, he said that he could kill her if he wanted, and at
some point added, “You’re going to do it the good way or the bad way.” Appellant
locked the store and ordered Norma to the back room. There, appellant fondled
her, demanded oral sex, and raped her on the couch. When someone knocked on
the store window, appellant put on his pants and forced Norma to the back storage
room, where she struggled with him and then “blacked out.” When she regained
consciousness, she was on the floor, and appellant apologized and put a wet towel
on her head. He then left.
      Appellant denied raping or physically restraining Norma. He testified that
she pushed and scratched him when he said he was leaving her. The jury
convicted him on the three counts arising from the February incident.


                                   DISCUSSION
I.    Implied Amendment of the Information
      Appellant contends that the prosecutor’s argument to the jury and the jury
instructions impliedly amended the information to charge a continuous course of
conduct supporting the criminal threats charge encompassing threats in both the
January and February incidents. He urges that he was improperly convicted of that
amended charge, because it was not alleged in the information or proved at the
preliminary hearing. We conclude that appellant forfeited any claim that his due
process rights were violated by the alleged failure to receive adequate notice of the
charges, and in any event, the claim fails.




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      A. Jury Instructions
      Regarding the dates of the alleged crimes, the jury was instructed pursuant to
CALCRIM No. 207 as follows: “It is alleged that the crime [sic] occurred on
February 22, 2013, and on or between January 15, 2013 and January 18, 2013.
The People are not required to prove that the crime took place exactly on that day
but only that it happened reasonably close to that day.”
      As to the elements of a criminal threat, the jury was instructed, in part, as
follows: “The defendant is charged in Count 5 with having made a criminal threat
in violation of Penal Code section 422. [¶] To prove that the defendant is guilty of
this crime, the People must prove that: [¶] 1. The defendant willfully threatened
to unlawfully kill or unlawfully cause great bodily injury to Norma S. or a member
of her immediate family; [¶] 2. The defendant made the threat orally; [¶] 3. The
defendant intended that his statement be understood as a threat; [¶] 4. The threat
was so clear, immediate, unconditional, and specific that it communicated to
Norma S. a serious intention and the immediate prospect that the threat would be
carried out; [¶] 5. The threat actually caused Norma S. to be in sustained fear for
her own safety or for the safety of her immediate family; [¶] AND [¶] 6. Norma
S.’s fear was reasonable under the circumstances.”
      The jury was also instructed on the firearm use allegation: “If you find the
defendant guilty of the crimes charged in Counts 4 and 5, you must then decide
whether, for each crime, the People have proved the additional allegation that the
defendant personally used a firearm during the commission of that crime.”


      B. Prosecution Argument
      During closing argument, the prosecutor encouraged the jury to “look at this
case holistically . . . to think of the context that allowed Norma to be on that couch

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and be raped.” He argued that appellant threatened Norma during both the January
and the February incidents. However, he clarified that that the rape, corporal
injury, and false imprisonment counts related to the February incident. He then
stated “the 4th and 5th count[s] relate to the incident in the middle of January. The
dates are alleged as January 15th through 18. As the jury instructions tell you we
do not have to prove it happened on that date; just it happened reasonably close to
that date.”
      The prosecutor then discussed the elements of the crimes relating to the
February 22 incident. When he finished, he stated: “Now we get to the counts that
apply to the incident that happened in January where he pulled the gun from under
the box spring and pointed it at her and threatened to kill her family and threatened
to kill her.” He discussed the elements of the criminal threats charge only in
connection with the January incident. In discussing those elements, he stated that
appellant “willfully threatened to kill or cause great bodily injury to the victim or a
member of her immediate family. He did that repeatedly.” In explaining the
element of sustained fear, he stated that Norma’s testimony indicated that she felt
fear not just “that day but, . . . the following month in continuing to live with this
man. . . . [¶] She had a good reason to be scared because when she finally stood
up for herself and said, no, I’m not giving you any money, get out of my life; he
raped her, and he assaulted her.”
      The prosecutor also referred the jury to the firearm use allegations in counts
4 and 5: “Finally, as to each of those last two counts, assault with a firearm and
criminal threats, . . . you have to decide whether or not he personally used a
firearm in connection with it.”




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         C. Jury Question
         During deliberations, the jury asked the following question: “Does Count 5,
criminal threats, pertain to only January 15-January 18 time frame?” The trial
court responded in writing “Please see all of the instructions, including Instruction
# 207.” The record does not reflect whether the court consulted the lawyers before
responding.


         D. Forfeiture
         “Due process requires that ‘an accused be advised of the charges against him
so that he has a reasonable opportunity to prepare and present his defense and not
be taken by surprise by evidence offered at his trial.’ [Citation.] Thus, it is the
rule that ‘a defendant may not be prosecuted for an offense not shown by the
evidence at the preliminary hearing or arising out of the transaction upon which the
commitment was based.’ [Citations.]” (People v. Graff (2009) 170 Cal.App.4th
345, 360 (Graff).) However, “an objection to lack of notice of the charges must be
raised in the trial court and cannot be raised for the first time on appeal.
[Citations.]” (People v. Torres (2011) 198 Cal.App.4th 1131, 1140; see also
People v. Fernandez (2013) 216 Cal.App.4th 540, 555 [finding that the defendant
forfeited his right to complain about the amendment of an information by failing to
object at trial]; People v. Newlun (1991) 227 Cal.App.3d 1590, 1604 [“having
failed to claim surprise or to request a continuance, defendant has waived objection
to the evidence adduced at trial on the ground he did not have adequate notice of
it”].)
         Here, appellant never objected in the trial court that the prosecutor had
impliedly amended the information to improperly charge a criminal threat not



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mentioned in the information or proved at the preliminary hearing. He thus
forfeited the issue.


      E. Merits
      Even were it not forfeited, the claim would lack merit. At trial, Norma
testified that in the January incident, appellant pointed a gun at her and threatened
her and her family. He said, “Don’t mess with me. You don’t know what I’m
capable of doing.” He also said he was going to “kill everybody in the house,”
including her father. In her testimony describing the February incident, she also
described threats made by appellant: he said that he could kill her if he wanted,
and at some point added, “You’re going to do it [give him money] the good way or
the bad way.” However, she did not testify that appellant used a firearm in the
incident.
      Appellant contends that the prosecutor invited the jury to consider the
February threats as part of a continuous course of conduct supporting the criminal
threats charge in count 5, and in that way impliedly amended the information.
However, in his argument to the jury, the prosecutor was clear that counts 4 and 5,
both of which allegedly involved appellant’s use of a handgun, related only to the
January incident. He stated that “the 4th and 5th count[s] relate to the incident in
the middle of January. The dates are alleged as January 15th through 18. As the
jury instructions tell you we do not have to prove it happened on that date; just it
happened reasonably close to that date.” Further, he directed the jury “to the
counts that apply to the incident that happened in January where he pulled the gun
from under the box spring and pointed it at her and threatened to kill her family
and threatened to kill her.” He discussed the elements of the criminal threats
charge only in connection with the January incident. Insofar as the prosecutor

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argued that Norma felt fear for a month after the January through the February
incident, he did so not to urge that he was relying on a continuing course of
conduct to support the criminal threats charge, but merely to urge that Norma
experienced “sustained fear” as a result of the threats in January, a requisite
element of the criminal threat offense, and that later events proved her fear to be
entirely reasonable. (See § 422, subd. (a).)
      Further, the trial court’s response to the jury question did not suggest that the
prosecutor was relying on a continuing course of conduct from January through the
February incident to support the criminal threats charge. The essential question is
whether the jury was reasonably likely to have construed the court’s response in a
manner that violated appellant’s rights. (People v. Franco (2009) 180 Cal.App.4th
713, 720.) The incident in which Norma testified that appellant used a handgun
was the January incident. There was no suggestion that appellant used a handgun
in the February incident. Thus, the jury was instructed in connection with count 5
that it must determine whether appellant used a handgun in that crime, and the
verdict form required a finding on that allegation. There was no such instruction as
to the crimes arising from the February incident, and no such finding required on
the verdict form.
      The jury asked whether the criminal threats charge pertained only to the
January 15-January 18 time frame. The court referred the jury back to the jury
instructions, including CALCRIM No. 207. In light of the evidence and verdict
forms (as well as the prosecutor’s argument), by examining the instructions, the
jury would reasonably understand that count 5 related only to the January incident
– in the words of CALCRIM No. 207, a crime alleged to have occurred “on or
between January 15, 2013 and January 18, 2013” – because count 5 required a
finding on the handgun use allegation, and the only evidence of handgun use arose

                                           9
from the January incident in which appellant threatened to kill Norma and her
family. Moreover, the prosecutor informed the jury in argument that count 5
related only to the January incident. In light of the evidence and the prosecutor’s
argument, as well as the instructions as a whole, it is not reasonably likely the jury
understood that threats not occurring in the January incident formed part of the
basis of the criminal threats charge.
      Appellant’s reliance on People v. Burnett (1999) 71 Cal.App.4th 151
(Burnett), is unavailing. In that case, the prosecution was allowed to amend the
information at trial based on an incident raised at trial but never raised in the
preliminary hearing or charged in the information. The jury was instructed that the
defendant could be convicted based on the uncharged incident, and the prosecutor
urged conviction based on either the charged or uncharged incident. On appeal,
“[t]he court held that because the evidence at trial was of ‘two completely different
incidents’ which ‘could have supported two charges,’ but the evidence presented at
the preliminary hearing encompassed only one of those incidents and the other
‘was never the subject of a preliminary hearing at which it could be determined
whether there was probable cause to believe that offense had occurred,’ the
defendant could not legally be convicted of the latter offense. [Citation.]” (Graff,
supra, 170 Cal.App.4th at p. 363.)
      Here, unlike Burnett, the prosecution never amended the information or
sought a conviction based on an incident not raised in the preliminary hearing or
charged in the information. For the foregoing reasons, we reject appellant’s claim
that his due process rights were violated by the alleged failure to be advised of the
charges against him.




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II.    Jury Question
       Appellant contends that CALCRIM No. 207 and the trial court’s response to
the jury’s question regarding the timing of the criminal threats charge were
erroneous and violated his due process rights. However, as we have explained, it is
not reasonably likely that the jury interpreted the court’s response so as to permit
conviction based in part on threats that occurred during the February incident.
Thus, we find no error in the court’s response.


III.   Ineffective Assistance of Counsel
       Appellant contends that his trial counsel was ineffective for failing to object
to the court’s response to the jury’s question. We note that the record is unclear
whether the parties were consulted before the court gave its written response. In
any event, because we have concluded that there is no reasonable likelihood that
the jury interpreted the court’s response so as to permit a conviction based in part
on threats that occurred during the February incident, we reject the claim of
ineffective assistance. “[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.” (Strickland v.
Washington (1984) 466 U.S. 688, 697.)




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                   DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                 WILLHITE, Acting P.J.




We concur:




MANELLA, J.




COLLINS, J.




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