Filed 2/25/16 P. v. Chaves CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144066
v.
JESUS SANCHEZ CHAVES,                                                (Sonoma County
                                                                     Super. Ct. No. SCR638272)
         Defendant and Appellant.


         A jury found defendant Jesus Sanchez Chaves guilty of six sex-related offenses
and various accompanying enhancements, for which he was sentenced to state prison for
an aggregate term of 69 years to life. On this timely appeal, defendant advances two
contentions which challenge only one of the convictions, namely, that for violating
subdivision (b) of Penal Code section 288 (section 288), by forcibly committing a lewd
or lascivious act upon a child under the age of 14. Defendant’s first contention is that the
trial court abused its discretion by allowing amendment during trial of the section 288
charge from non-forcible to forcible. His second contention is that, having allowed the
amendment, the trial court was required to instruct on the lesser included offense of the
non-forcible violation of section 288.
         Following a two-day preliminary examination, defendant was ordered held to
answer on the six charges specified in the criminal complaint. There was one difference
between the charges in the complaint and the charges found by the magistrate. In
count II of the complaint it was alleged that defendant “did, in the County of Sonoma,
State of California, on or about the 11th day of August 2013, violate Section 288(b)(1) of


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the PENAL CODE, a felony, in that He did willfully, unlawfully, and lewdly commit a
lewd and lascivious act upon and with the body and certain parts and members thereof of
JANE DOE . . . , a child under the age of fourteen years, with the intent of arousing,
appealing to, and gratifying the lust, passions, and sexual desires of the said defendant
and the said child, by use of force, violence, duress, menace, and threat of great bodily
harm.” (Bold type omitted.) The magistrate (Hon. Gary Medvigy), however, concluded
“there was no testimony as to any force,” and so found the charge was “288a, non-
forcible lewd and lascivious touching of the child under the age of 14.” Count II as
alleged in the ensuing information was for a violation of section 288, subdivision (a),
without the element of “force, violence, duress, menace, or fear of immediate and
unlawful bodily injury” justifying the greater penalties of subdivision (b).1
       At the close of its case-in-chief, the prosecution made an oral motion to amend
count II of the information to conform to proof to allege the forcible violation of section
288. After the defense had rested, and without objection from the defense, Judge
Medvigy granted the prosecution’s motion to amend the information to allege a violation
of subdivision (b) of section 288.
       Defendant contends the amendment was procedurally improper under Penal Code
section 1009 because it was made in the face of the magistrate’s finding that no evidence
of force was shown by the evidence at the preliminary examination. He also contends it
violated his due process right to notice of the charges he would confront at trial. Finally,
if his trial counsel’s failure to raise these points works a forfeiture of his right to have the


       1
           The two subdivisions provide in pertinent part:
“(a) . . . [A]ny person who willfully and lewdly commits any lewd or lascivious
act . . . upon or with the body, or any part or member thereof, of a child who is under the
age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions,
or sexual desires of that person or the child, is guilty of a felony and shall be punished by
imprisonment in the state prison for three, six, or eight years.
“(b)(1) Any person who commits an act described in subdivision (a) by use of force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim
or another person, is guilty of a felony and shall be punished by imprisonment in the state
prison for 5, 8, or 10 years.”

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amendment reviewed here, defendant cites that inaction as proof he received ineffective
assistance from that attorney.
       Defendant correctly anticipated the Attorney General would claim trial counsel’s
failure to object failed to preserve the point for review. The forfeiture claim is almost
certainly valid (People v. Fernandez (2013) 216 Cal.App.4th 540, 555; People v. Walker
(1959) 170 Cal.App.2d 159, 163; but see People v. Valladoli (1996) 13 Cal.4th 590, 606
[due process notice claim that amendment “led to additional punishment in violation of
the federal Constitution” considered for first time on appeal]), but the ineffective
assistance claim requires that the merits be considered.
       “An indictment . . . or information may be amended . . . unless the substantial
rights of the defendant would be prejudiced . . . . 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.” (Pen. Code,
§ 1009.)
       “A court may allow amendment of an accusatory pleading at any time up to and
including the close of trial so long as there is no prejudice to the defendant. [Citation.]
. . . ‘Section 1009 specifically proscribes amending an information to charge an offense
not shown by the evidence taken at the preliminary hearing.’ [Citation.] [¶] ‘[T]he role
of the accusatory pleading is to provide notice to the defendant of the charges that he or
she can anticipate being proved at trial.’ . . . ‘ “[A]t a minimum, a defendant must be
prepared to defend against all offenses of the kind alleged in the information as are
shown by evidence at the preliminary hearing to have occurred within the timeframe
pleaded in the information.” [Citations.]’ ” (People v. Arevalo-Iraheta (2011)
193 Cal.App.4th 1574, 1580–1581.)
       The setting here is hardly the usual context for examining this type of claim. This
is not the far more common situation where the prosecutor refiles a charge that the
magistrate has refused to find. This is not an instance where the magistrate made a
factual finding, such as credibility, that would be fatal to reinstating a charge. It seems
more accurate to describe what happened here is that the trial judge reconsidered the


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sufficiency of the preliminary examination record to support a forcible violation of
section 288. The fact that Judge Medvigy was in effect reexamining his own conclusion
from the preliminary examination is an intriguing feature, but not one with legal
significance. That conclusion was essentially one of law—whether the evidence
produced at the preliminary examination was legally sufficient to establish a forcible
violation of section 288. “The authorities . . . confirm that a charge may be . . . reasserted
only where the magistrate was incorrect in his or her assessment of the evidence
presented at the preliminary hearing.” (People v. Graff (2009) 170 Cal.App.4th 345, 361;
see People v. Slaughter (1984) 35 Cal.3d 629, 639 [“if the magistrate dismisses a charge
when the evidence provides a rational ground for believing that defendant is guilty of the
offense, his ruling is erroneous as a matter of law . . . .”]; People v. Superior Court
(Henderson) (1986) 178 Cal.App.3d 516, 521 [“A magistrate’s legal conclusion that the
evidence is legally insufficient to support a holding order does not preclude the
prosecutor from refiling . . . .”].) Thus, if Judge Medvigy’s initial assessment was
incorrect, “an amendment at trial . . . would not violate due process, because . . .
defendant was on notice from the preliminary hearing as to what charges he might
potentially have to be prepared to defend against at trial.” (People v. Pitts (1990)
223 Cal.App.3d 606, 906.)
       There is no dispute that count II dealt with an incident in defendant’s bedroom.
The victim testified at the preliminary examination that she went into the room to retrieve
a stuffed animal she had playfully thrown at him. Defendant “came up to me and started
touching me” on “my chest area . . . like, my breast” and “in between my legs.” “I tried
to like, walk away” but defendant “grabbed my arm and . . . pulled me towards him.”
The prosecutor asked: “How hard would you say he pulled you?” The victim replied:
“Hard enough. Hard enough to pull me towards him.” Defendant then “pointed to the
pool room, and then we started walking out” of the bedroom. It was in the pool room that
additional offenses were committed until the victim’s mother came on the scene.
       Our Supreme Court has held that the “level of force . . . necessary to support . . .
the harsher penal consequences of a conviction under section 288(b) [is that] . . . the force


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used . . . be ‘substantially different from or substantially greater than that necessary to
accomplish the lewd act itself.’ ” (People v. Soto (2011) 51 Cal.4th 229, 242.) The
evidence received at the preliminary examination demonstrates, as Judge Medvigy
initially concluded, that force was not a component of the violation of section 288. There
was no application of force to prevent the victim from crying out (as in People v. Gilbert
(1992) 5 Cal.App.4th 1372), or from escaping so that the offensive groping could begin
or continue (as in People v. Neel (1993) 19 Cal.App.4th 1784; People v. Babcock (1993)
14 Cal.App.4th 383; and People v. Stark (1989) 213 Cal.App.3d 107). There was no
evidence of a preexisting history or pattern of behavior that might be construed as
lingering intimidation (as in People v. Hecker (1990) 219 Cal.App.3d 1238). The force
was not transactionally related to the completed lewd acts in the bedroom. If anything,
the force was a transactional prelude to what occurred subsequently in the pool room.
Granting the prosecutor’s trial motion to amend was thus error. Given that it in effect
added an element to the offense defendant would immediately have to defend against, the
error must be deemed prejudicial to his substantial rights. (See People v. Graff, supra,
170 Cal.App.4th 345, 362 and authorities cited.)
       This conclusion moots defendant’s remaining contention, that it was error not to
instruct on the lesser offense of a violation of section 288 accomplished without force.
       However, the error does not require either a reversal or a retrial. Defendant
concedes he would have been properly convicted of violating subdivision (a) of section
288, and is willing to have this court modify the judgment accordingly. 2 We agree this is
appropriate, but it will not entirely eliminate further action by the trial court. Count II
was chosen by Judge Medvigy as the principal term for calculation of defendant’s
determinate term. Remand is also appropriate in order that Judge Medvigy may have the
opportunity to recalculate the composition of defendant’s determinate term.


       2
        This is an apparent reference to the authority granted us by Penal Code section
1260 to “modify a judgment or . . . reduce the degree of the offense . . . .” This authority
includes reducing a conviction to a lesser included offense. (See People v. Navarro
(2007) 40 Cal.4th 668, 677–678 and authorities cited.)

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       The judgment of conviction is modified by showing that on count II defendant
stands convicted of violating Penal Code section 288, subdivision (a). The cause is
remanded to the trial court for resentencing. The judgment is affirmed in all other
respects. The clerk of the trial court is directed to prepare an amended abstract of
judgment, and to forward a certified copy to the Department of Corrections and
Rehabilitation.




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                                _________________________
                                Richman, Acting P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




A144066; P. v. Chaves




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