P. v. Latham

Filed 3/9/07 P. v. Latham CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Riverside County, Janice McIntyre, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Leroy Latham appeals his conviction of infliction of great bodily injury on a spouse by personally using a firearm. (Pen. Code,[1]  273.5, subd. (a), 12022.5, subd. (a)(1), 12022.7, subd. (e), 1192.7, subd. (c)(8).) He was sentenced to a prison term totaling 18 years.

Latham contends the trial court improperly allowed evidence about a dispute over

a golf club putter, the prosecutor committed misconduct in arguing reasonable doubt, and the court improperly allowed the prosecutor to constructively amend the information at the end of the presentation of evidence. We affirm the judgment.

FACTS

The Relationship Over the Years

Leroy and Monica Latham, after having been together since 1990, married in 1996. Throughout their relationship, Latham was controlling and suspicious of Monica. He required her to tell him where she was going and if she took too long, he would yell at her and accuse her of having met someone. He constantly accused her of sleeping with other men, most often with his brothers. He followed her when she went out and did not allow her to have any friends. He had a short temper; "[h]e was always so angry over everything. Everything made him mad."

Over the years, Latham made various threatening statements. Before they were married, he held a loaded gun to her head and said he would kill her if she tried to leave him. At other times, when she denied one of his accusations, he glared at her and intimidated her with the gun. About 1999, while they were driving on a country road, he commented it would be a good place to put her body since no one would ever find it. One time when Monica asked why there were so many bags of concrete in their garage, he said, "well, that's what I'm going to use to bury you." He told her if she left him, he would burn down the house and burn the car that she would not get the house because he "wouldn't have any other man in the house." There was also physical abuse. On one occasion he threw a glass coffee table at her, and on another, he hit her in the face, causing a bloody nose and swollen lip.

Beginning in 1996, Monica worked as an information assistant and booking clerk at the San Diego County jail in Vista. Her coworkers were aware of her situation and suspected domestic abuse. In 1997 or 1998, Monica panicked when there was an incident that shut down a highway on her normal commute home. She told her coworkers that if she was five or 10 minutes late, Latham would become very upset and violent. Latham constantly called Monica at work, often six to 10 times during an eight-hour shift, and Monica would panic if she missed a call. Monica, who worked the graveyard shift, told her coworkers she could not go to breakfast with them after the shift because her husband required her to be home promptly. She had a significant number of absences from work.

The situation became worse after Latham and Monica moved to Hemet in the late 1990's, especially after Monica's mother also moved to Hemet, because Latham did not like Monica being with her mother

The Weeks Before the Shooting

In late 2003, Monica decided to leave Latham and took some items to her mother's apartment while Latham was playing golf. Latham, however, convinced Monica that he would change and she returned home. The relationship briefly improved, but then Latham returned to his pattern of making accusations.

By early 2004, Monica's supervisor had become concerned enough about Monica's situation to talk to her about it. Monica indicated she wanted to leave Latham and get her own apartment but wanted to do it in a "civil" way. The supervisor directed Monica to schedule a counseling session because she appeared frightened and believed it was only a matter of time before Leroy would try to kill her. When Monica still had not scheduled a counseling session by January 29, she was notified that a mandatory counseling session would be scheduled for her.

About a week before the shooting, Monica told Latham she was going to breakfast with some women coworkers after her graveyard shift. After breakfast, she took a nap in her car before driving home. As soon as she arrived home, Latham began yelling at her and hitting her with his fist, giving her a black eye. He tore the phones out of the wall and took away her cell phone so she could not call the police. When she expressed concern to him about her coworkers seeing the black eye, Latham said, "well, you tell them that's what you get when you come home late." He seemed proud of having hit her.

A short while after giving Monica a black eye, Latham punched Monica hard in the thigh, resulting in a large, deep bruise that made it uncomfortable for her to sit. Monica stayed away from work for two days.

When she returned to work with the black eye, her supervisor reemphasized that counseling was mandatory and told her they would "cover" for her, making it look like she was attending a training class in case Latham called while she was at the appointment. Monica's supervisor also contacted a former coworker, Mark Manriquez, who worked in the San Diego County Sheriff's domestic violence unit and who had previously worked with Monica. Manriquez met with Monica at the Vista jail before her shift ended and talked to her about domestic violence matters, including getting a temporary restraining order, safe housing and starting a criminal investigation. Monica said she was not yet ready to leave Latham. Monica never made it to the mandatory counseling session.

The Day of the Shooting - Wednesday, February 11, 2004

On the morning of Wednesday, February 11, 2004, her day off, Monica remained at home, reading in the bedroom. Latham went to a golf course in Hemet. While he was there, the golf course manager met with Latham about a dispute Latham had with Tony and Ali Pye[2] about damage to Latham's golf club. Latham claimed Ali had run over his putter the previous week and had refused to pay for repairing it. When Latham left the golf course manager's office, he seemed still upset.

Monica testified her memory about February 11 was "vague," that she remembered "only bits and pieces." She remembered that when Latham came home he was ranting and raving about a woman running over his golf club and breaking it. He was yelling that "he was going to get them back or make them pay." Monica had heard about the putter a few days before, and she was aware he had confronted the Pyes and they had refused to pay for it. She told him she was tired of hearing him ranting and raving about things all the time and that she could not keep dealing with his being angry at every little thing. She told him she wanted to leave, even if she had to leave with only the shirt on her back. More than once, she told Latham that she was leaving.

She remembered standing up. Latham was standing by the bed near the nightstand where he kept a loaded gun. She saw a gun in his hand. The next thing she remembered was not being able to hear anything, feeling incredible pain, and lying on the floor.

The first people to arrive were firefighters, who had been dispatched to a call of an "unconscious female," and expected to find a woman who had suffered a heart attack or something similar. Latham was outside, jumping up and down and screaming something unintelligible. When one of the firefighters entered the bedroom, she saw Monica lying on the floor with blood everywhere and quickly realized it was a gunshot wound. The police were summoned. There was no weapon in the bedroom.

The acting fire captain twice had to escort Latham out of the house. The acting captain saw the gun on the living room under a decorative couch pillow but did not touch it. The police arrived shortly thereafter. Police officers testified they saw the gun on the living room floor and it was not covered by anything.

Latham appeared to be angry. He told a police officer he did not know what had happened because he had been out playing golf. He said he was a good golfer and had been practicing at the golf course. He did not express any concern for Monica or ask how she was doing.

Monica was life-flighted to a hospital. She was in the hospital for about a month. She was intubated and put on a ventilator. She was given morphine and a sedative, which has a side effect of causing amnesia. The police interviewed Monica three times while she was in the hospital. During the first and third interviews, Monica indicated that she remembered what had occurred on February 11 and that Latham had shot her. During the second interview, although Monica had told a nurse earlier in the day that Latham had shot her, she indicated she had shot herself. The nurse described Monica's demeanor as being different during this interview; she had an abnormally blank look and did not make eye contact with the nurse although she normally had a good rapport with her nurse.

Monica was also interviewed in August 2004 after she was released from the hospital. Her description of the February 11 incident during that interview was consistent with her trial testimony.

Forensic Evidence

The gun was no more than one-half inch from Monica when it was fired. No gunshot residue was found on Latham. Some gunshot residue was found on Monica's left hand and one particle was found on her right hand. The presence of gunshot particles can indicate a person discharged a firearm or was in an environment where gunshot residue was present, for example, was present when a gun was fired. The lack of gunshot residue does not necessarily mean an individual did not fire a gun since a firearm may be discharged and not deposit any particles or the particles may be removed by washing or wiping. Even putting hands in a pocket may remove gunshot residue.

No fingerprints were found on the gun. One small drop of possible blood was found on the underside of the gun's barrel and there were some "little splatters" on the left side of the gun. Only one drop of possible blood was found on Latham's shirt.

Defense

The defense theory was that Monica was suicidal and shot herself. This theory was based, in part, on the presence of gunshot residue on Monica but not on Latham. The defense also relied on an incident in 2001, where Monica had threatened to commit suicide.

Monica testified that she and Latham were in a second floor room at a hotel in San Diego. They had been drinking. She threw a tantrum when Latham did not want to have sex, went out the window and started crawling up a fire escape. She was drunk and agreed she probably threatened to commit suicide "to shock him into compliance." She never threatened to harm herself on any other occasion. She has never attempted suicide and did not want to commit suicide in 2004.

DISCUSSION

I

Admission of the Putter Incident

Latham contends he "was deprived of his due process right to a fair trial by the pointless and silly mini-trial of the putter dispute." (Capitalization omitted.) He contends it constituted improper and inflammatory uncharged misconduct that should have been excluded as more prejudicial than probative.

At trial, the golf course manager and Tony and Ali Pye testified about the putter incident. The Pyes described playing with Latham and another man on the Wednesday before the shooting. The Pyes did not know Latham or the other man. On the sixth hole, after Ali hit her ball to the green, she returned to her golf cart and waited while Latham made several practice shots and then hit his ball toward the green. Ali did not notice anything as she drove up to the green and parked. While on the green, Latham accused her of having run over his putter. She disagreed, saying she would have felt it. Latham said, "That's all right. Your husband is rich. He can pay for it." Ali and Tony thought Latham was joking. The other man in the foursome looked at the putter and did not see anything wrong with it. Latham proceeded to sink a long putt and the group joked about the putter working "fine." Because the Pyes were short on time and Latham and the other man had hit errant shots on the next hole and were delayed by looking for their balls, the Pyes played the remaining holes without Latham and the other man.

On Friday, Latham called out to Tony as he was playing golf and asked, "What are you going to do about my putter?" Tony denied knowing what Latham was talking about. Latham said he would speak to Ali and gave Tony his phone number. Tony suggested Latham talk to the golf course manager. The entire exchange lasted about five minutes. When Tony finished playing his round of golf, he gave Latham's phone number to the golf course manager.

On Saturday, February 7, Latham approached Ali as she was practicing putting at the golf course and demanded to know what she was going to do about his putter. He wanted her name and address so he could sue her. Latham was aggressive and confrontational, which made Ali feel nervous and scared.

The golf course manager called Latham on February 11. Latham was apparently at the golf course because he immediately appeared in the manager's office. Latham told the manager that the Pyes had damaged his putter by running over it and demanded that they should pay to have it repaired. The manager, who had examined and fixed putters in the past, looked at Latham's putter and he told Latham the putter appeared to be fine. Latham, who appeared "[a] little agitated," insisted it was "off" a few degrees. Since the golf course did not have the machines to verify Latham's claim, the manager suggested Latham take the putter to a shop in Hemet. Latham refused, stating he had problems there in the past and had lost his temper. The manager said he did not know what Latham wanted him to do, and told Latham to leave the Pyes alone because he did not want trouble on the golf course. Latham "never seemed to accept" what the manager said and remained seated in the office, looking at the manager, even when the manager was busy answering phone calls. Latham left only when the manager left the office.

As Latham concedes, he interposed only a few objections and those objections occurred only during the testimony of the golf course manager. Latham did not object "to the entire inquiry as being irrelevant, absurd and prejudicial." His objections during the manager's testimony were limited to: (1) a relevancy objection to a question asking the manager for his opinion as to whether the putter was damaged; (2) a relevancy objection to the prosecution's request for the manager to demonstrate how Latham was rubbing his hands together as he paced about the manager's office; (3) a relevancy and speculation objection to the prosecutor's further inquiry about how Latham was rubbing his hands; and (4) a relevancy objection to a question about Latham's comments on his temper having caused him trouble at a local golf shop.

As a general rule, an individual may not challenge the admission of evidence unless he or she objected to its admission in the trial court. (See People v. Williams (1997) 16 Cal.4th 153, 250; People v. Rudd 63 Cal.App.4th 620, 628.) Here, Latham did not object to the admission of the evidence or to the presentation of multiple witnesses, but made only a limited number of specific objections to questions posed during the examination of the golf course manager. Those objections were not sufficient to raise the issue Latham now raises on appeal.

Nonetheless, Latham argues that he is entitled to raise the issue, asserting that despite the lack of objection, we must review the record to determine whether his due process right to a fair trial was compromised. He relies on People v. Chambers (1964) 231 Cal.App.2d 23. Chambers is distinguishable. In Chambers, the owner of a convalescent home was charged with one assault and jointly tried with an employee who had been charged with three assaults against a patient in a convalescent home. Defense counsel had stipulated to a joint trial and did not object to the "voluminous evidence of unrelated acts of brutality by [codefendant]." (Id. at p. 27.) The trial judge, prosecutor, and defense counsel shared a belief the evidence was admissible. Testimony about the assault involving the convalescent homeowner occupied only three pages of the trial transcript. The jury was not admonished about the limited admissibility of the evidence. (Id. at pp. 27-28.) Despite the waiver of the joint trial, the Chambers court reversed the defendant's conviction after concluding, from an examination of the entire case, that the defendant was probably convicted through guilt by association with the codefendant. (Id. at pp. 28, 34.)

Chambers involved a different issue, that is, review of a decision to consolidate or to sever. Normally, review of a trial court's decision to consolidate or sever trials is based on the evidence available to the trial court at the time it made the ruling. (People v. Pinholster (1992) 1 Cal.4th 865, 933.) This review standard does not look at what actually occurred at trial. Chambers and those cases following Chambers, recognize that in some cases because of the consolidation, gross unfairness results with the defendant being convicted based on guilt by association with a codefendant and in those cases, despite the lack of objection to consolidation, reversal is merited. (Chambers, supra, 231 Cal.App.2d at pp. 28, 34; People v. Ervin (2000) 22 Cal.4th 48, 68-69; People v. Singh (1995) 37 Cal.App.4th 1343, 1374-1375; People v. Burns (1969) 270 Cal.App.2d 238, 252.) Chambers and its progeny do not create a general rule that a defendant is entitled to appellate review of a claim that was waived below.[3]

Here, we are not faced with a consolidation issue or the prospect Latham may have been convicted due to inflammatory evidence and guilt by association with a codefendant. Here, we have a simple challenge to the admissibility of the evidence that was not raised below. In these circumstances, the failure to challenge the admissibility of the evidence is subject to the waiver rule.

Moreover, the evidence was relevant. It tended to show Latham's state of mind when he arrived home, that is, that he was angry about the putter incident, having stewed on it for a week and having received no satisfaction from either the Pyes earlier in the week or from the golf club manager that day. Evidence of Latham's anger and the details of the putter incident put in context Monica's testimony that on February 11, Latham came home ranting and raving about his golf club. Further, the evidence tended to rebut the defense claim that Monica had shot herself before Latham returned home. As the prosecutor argued, if Monica had shot herself before Latham arrived home, she would not have known that he was still angry about the putter incident on February 11.

Further, nothing about the putter incident was unduly inflammatory, especially compared to other acts of domestic violence and threats that were admitted and were largely undisputed. Latham acknowledges his conduct was "eccentric and weird." There is no reasonable probability the jury convicted Latham based on the details of the putter incident or that eliminating the details would have resulted in the acquittal of all charges.

II

Prosecutorial Misconduct

Latham contends the prosecutor's discussion of the reasonable doubt standard during closing argument constituted misconduct.

During closing argument, the prosecutor quoted the instruction on reasonable doubt and then stated:

"So your mind tells you, yeah, he did it. Your gut tells you, yeah, he did it. And that's supported by the evidence. There's no reasonable doubt. It's about applying your common sense. Consider all the evidence and how it fits together. Apply your common sense. Remember that it is not a mere possible doubt. If you find yourself thinking or saying out loud, well, what if this, or isn't it possible that, that's not reasonable doubt."

Defense counsel objected the argument misstated the law and was stating "the law of circumstantial evidence." The court overruled the objection. The prosecutor then argued:

"Let's go back. It is not a mere possible doubt. What if [there] isn't a possible doubt. If it's not supported by the evidence, then that is not a reasonable doubt. That is mere speculation. And that's what the law says right there. It is not a mere possible doubt because everything related to human affairs is open to some possible or imaginary doubt. It's right there in blue and yellow, I guess. Not black and white.

"It must be based on, of course, credible evidence. What you heard from the witness stand.

"If I could, I'd like to offer an example, and then I'll let you folks go. Let me see if I can find a marker here.

"Okay. What do we mean by beyond a reasonable doubt? Let's just say that this is a case about what state of the union this is that I've drawn here, and I must prove to you beyond a reasonable doubt which state of the union it is. It's kind of a silly example, but hopefully it will illustrate the point. And I'm going to do it with three witnesses. The first witness takes the stand and goes you know what, I recognize this state. It's got an ocean right here. It's called the Pacific. And there's a state over here. I forget the name of the state, but it's got slot machines and gambling. You can go there and win a lot of money. That's witness No. 1.

"Witness No. 2 looks at this and goes, you know what? They take the oath and say I recognize this state. There's a city down here. It's called Riverside. It's a little smoggy in the summer, but other than that, not a bad place to live. And the capital the capital is up here, and it's called Sacra Sacra something. I don't know the rest of it. But that's the capital.

"Third witness takes the stand and goes, yeah, I definitely recognize this state. Let's see. There's a country down there. It's called Mexico. It's pretty nice. Nice beaches. Good shopping. And there's a city in the state. And this city is beautiful. It's called San Diego. And San Diego is up here near the Oregon border. And the People rest.

"At the end of this case when this is the evidence you have, anybody have any reasonable doubt that this is, of course, California? Of course not. We all know it's California and there's no reasonable doubt that it's not California. It's not any other state in the union. But look at this. You know it's California even though the witnesses have given you some information which is incomplete. Sacra -- we never got the whole name of that capital, did we? And you still know it's California even though you're provided with some information that's absolutely dead wrong. San Diego is not by the Oregon border. It's down there by Mexico. But you put it together. You see how all the evidence fits, and you apply your common sense and you know this is California.

"Just like when you put it all together and you apply your common sense, you know that the man right there shot his wife in the chest. Beyond a reasonable doubt he shot her. And I'm asking you to hold him responsible. I'm asking you to believe Monica Latham because she told you the truth. I'm asking you to find him guilty."

Defense counsel did not object to this argument either when the argument was made or at a later time. Defense counsel responded to the prosecutor's argument by arguing:

"Each element of each crime must be proved, and it must be proved beyond a reasonable doubt. No person may be convicted of a criminal offense unless there is some proof of each element of the crime. And once again, that's not I think it's there. That's not it might be there. That's not, hey, my gut tells me. That's did they prove the crime. And you know what, even if you don't like Leroy, even if you don't like the fact that this lady got hurt, even if you don't like the fact that it was apparently a marriage that was going nowhere, if they haven't proved the facts, they haven't proved the case. That simple."

"A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " (People v. Cole (2004) 33 Cal.4th 1158, 1202.)

"[A]s a general matter a claim of prosecutorial misconduct is preserved for appeal only if the defendant objects in the trial court and requests an admonition, or if an admonition would not have cured the prejudice caused by the prosecutor's misconduct." (People v. Ledesma (2006) 39 Cal.4th 641, 730; People v. Medina (1995) 11 Cal.4th 694, 761.) "A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile." (People v. Hill (1998) 17 Cal.4th 800, 820; People v. Harrison (2005) 35 Cal.4th 208, 243-244.)

Here, Latham objected only to the prosecutor's initial argument about reasonable doubt on the basis it misstated the law and was addressing the circumstantial evidence standard. On appeal, however, Latham objects to the subsequent argument by the prosecutor, arguing it misstated and trivialized the reasonable doubt standard.

We disagree that Latham's sole objection, made on another ground, was sufficient to preserve on appeal all his complaints about the prosecutor's arguments. Moreover, this is not a case where an objection would have been futile. Latham easily could have objected and requested the court reinforce the jury's understanding of the reasonable doubt standard and the prosecutor's burden of proof. We conclude Latham waived these issues by failing to raise them below. Furthermore, even if Latham had preserved the issues, we would not reverse.

Latham argues it is generally error to tell a jury that reasonable doubt must arise from the evidence since a reasonable doubt may grow out of a lack of evidence. (People v. McCullough (1979) 100 Cal.App.3d 169, 182; People v. Hill, supra, 17 Cal.4th 800, 831.) He points to the prosecutor's statement during argument that "[i]f [a reasonable doubt is] not supported by the evidence, then that is not a reasonable doubt." The prosecutor's statement must be viewed in context. The statement was made in the context of arguing that reasonable doubt is not "a mere possible doubt" or could not be based on "mere speculation." The prosecutor then gave the example of witnesses testifying about California, each having only partial information, with some of the information being incorrect. In context, the prosecutor's argument was directed to telling the jury that they should not ignore common sense, not speculate, and view the evidence as a whole when determining whether there was a reasonable doubt. Such argument was not improper.[4]

Moreover, the court properly instructed the jury as to the standard for determining reasonable doubt. In the absence of evidence to the contrary, we must presume jurors follow instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) Finally, we note the verdicts themselves reflect the jurors carefully considered the evidence and believed the evidence raised a reasonable doubt as to whether Latham committed attempted murder or assault with a deadly weapon.

III

Constructive Amendment of the Information

Latham contends the court erred in allowing the prosecutor, after the presentation of evidence, to constructively amend the information to allow the count 3 charge of corporal injury on a spouse to be based on the shooting or on other acts of domestic violence that were presented at trial.

The information alleged three counts (1) attempted murder, (2) assault with a deadly weapon, and (3) corporal injury on a spouse all occurring "on or about February 11, 2004," and all containing allegations of personal firearm use. Thus, the face of the information indicates all three counts were based on the shooting, which occurred on February 11, 2004. The evidence at trial, however, showed there were additional incidents of corporal injury to a spouse, in particular, Latham striking Monica around the head that caused a black eye, and hitting her hard in the thigh and causing a serious bruise.

During the discussion of CALJIC No. 2.50.02, which instructs the jury on the use of prior acts of domestic violence to show the defendant has a propensity to commit domestic violence, defense counsel objected, pointing out that the court was "allowing the prosecution . . . to argue . . . a separate act of domestic violence . . . satisfies Count 3." Defense counsel complained the defense had proceeded on the theory the prosecution was based on the events of February 11 and the defense had prepared for defending against those charges and allegations but now, after conclusion of the People's case, the prosecutor wanted to argue other acts of domestic violence could satisfy the corporal injury requirement of Count 3. Defense counsel objected that it was "too late in the game to allow the People to come in with an entirely new theory." The court overruled the objection, noting that the defense would have had notice of the black eye in the discovery, which had occurred within a few days of the shooting, and therefore was "covered by the charge of on or about" language in the information.

During closing argument, the prosecutor argued:

"Count 3 is domestic violence. Here you have a choice. There's the conduct of February 11th, which is the same conduct which is reflected in Counts . . . 1 and 2. Count 3 also involves the batteries that occurred in the week leading up to it: the black eye, that bruise on the thigh. That's domestic battery.

"I'll explain how that applies to the actual charge in the law when we get there. But just so you know, Counts 1 and 2, same exact conduct. Count 3 can be the same conduct or you can depend on the other conduct that preceded this in order to find the defendant guilty of that third count.

"[] . . . []

"Okay. This is the one count that I had talked about that you can go beyond February 11th for. The bruise on the leg. Monica Latham described to us that it hurt to the bone. Remember her describing how she was laying [sic] on the bed. He unleashed on her and punched her very hard, and she described that pain, said it was pain like she never had felt before. It went literally to the bone. That's a visible injury. Traumatic condition. Guilty of Penal Code Section 273.5.

"So there's two ways that you get there. You get there either through the punch or through the shooting. If you get there through the shooting, you all agree we're going to go with the shooting on that one. Then you go on and you look at the special findings which is personal use of the gun and infliction of great bodily injury.

"If you go with the conduct on that particular count before the shooting, then you stop at the guilty of [section] 273.5. Of course, you don't go to the firearm because he didn't use a gun. He used his fist.

The court instructed the jury, pursuant to CALJIC No. 17.01 as follows:

"The defendant is accused of having committed the crime of [section] 273.5 in Count 3. The prosecution has introduced evidence for the purpose of showing that there is more than one act or omission upon which a conviction of C[oun]t 3 or any lesser offense under Count 3 may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the acts or omissions. However, in order to return a verdict of guilty to Count 3 or a lesser offense, all jurors must agree that he committed the same act or omission or acts or omissions. It is not necessary that the particular act or omission agreed upon be stated in your verdict."

The jury in their verdict convicting Latham on count 3 also made true findings that "in the commission of the offense charged under count 3 of the information" Latham personally used a firearm and inflicted great bodily injury.

"The 'preeminent' due process principle is that one accused of a crime must be 'informed of the nature and cause of the accusation' (U.S. Const., Amend. VI.) Due process of law 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." (People v. Jones (1990) 51 Cal.3d 294, 317.)

The trial court may permit amendment of the information at any stage of the proceedings, if the defendant's substantial rights are not prejudiced. ( 1009.) "[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." (People v. Burnett (1999) 71 Cal.App.4th 161, 165-166.) "So long as the evidence presented at the preliminary hearing supports the number of offenses charged against defendant and covers the timeframe(s) charged in the information, a defendant has all the notice the Constitution requires." (People v. Jeff (1988) 204 Cal. App. 3d 309, 342.) "On or about" language used in a charging document means the prosecution does not have to prove the exact date of an offense so long as the date is reasonably near that stated in the charging document. (United States v. Ford (6th Cir. 1989) 872 F.2d 1231, 1236.) However, this "reasonably near" rule "contemplates a single act the exact date of which is not precisely known" rather than contemplating "a conviction based on more than one incident of criminal conduct." (Ibid.)

Latham acknowledges that there was evidence about the black eye and thigh bruise presented at the preliminary hearing, however, he points out the information charged count 3 occurred "on or about February 11" and contained a firearm allegation, but neither the black eye nor the bruise occurred on February 11 or involved a firearm. He argues the allegations in the information indicated count 3 involved the shooting. He also points out the magistrate made no findings about what acts were sufficient to support count three.

Even assuming arguendo that the amendment here was improper, we would not reverse. The danger presented by a late amendment is that the defendant may be convicted of a charge of which he had no notice or opportunity to defend. That danger, however, did not manifest itself here. Although the prosecutor argued count 3 could be based on the black eye or the bruised thigh, the prosecutor also made it clear that if the

jury were to convict based on either of those two acts, they could not return a true finding on the firearm enhancement because those incidents involved the use of a fist, not a firearm. The court also made it clear to the jury that they were required to unanimously agree on one specific act of domestic violence before returning a guilty verdict on count 3. The jury's verdict on count 3 included a true finding that "in the commission of the offense" Latham personally used a firearm. Under these circumstances, it is clear the jury's verdict was based on the shooting. Thus, even if error occurred, Latham was not prejudiced by it.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

AARON, J.

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[1] All statutory references are to the Penal Code unless otherwise specified.

[2] For the sake of convenience, at times we refer to Ali and Tony Pye by the first names they generally use for each other.

[3] Typically, when a criminal appellant contends we should review a claim of error despite a failure to object below, the appellant proceeds on a theory that his or her defense counsel failed to provide effective assistance. Latham, however, does not direct any cogent argument on this theory. Nor would such an argument be successful since in order to prevail on an ineffective assistance of counsel claim, the appellant must show he or she suffered prejudice as a result of the error. (See People v. Rodrigues (1994) 8 Cal. 4th 1060, 1126.) As we explain in the text, any error here was harmless.

[4] We note the example of witnesses testifying about California was somewhat confusing in light of the common knowledge of the jurors from outside sources, but it was not misconduct.