P. v. Brown

Filed 8/30/06 P. v. Brown CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Bernardino County, Eric M. Nakata, Judge. Affirmed.

A jury found Eric Lynn Brown guilty of 16 counts of committing a lewd act on a child under the age of 14 (Pen. Code,^[1] § 288, subd. (a); counts 1-10, 12-15, 19-20), one count of sending harmful matter to a minor (§ 288.2, subd. (a); count 11), three counts of child molestation (§ 647.6, subd. (a); counts 17, 21 & 26), three counts of committing a lewd and lascivious act upon a minor at least 10 years younger (§ 288, subd. (c)(1); counts 22-24), and one count of sexual penetration by foreign object on another person under 18 years of age (§ 289, subd. (h); count 25). The jury also found true allegations that as to counts 2, 4, and 9, Brown had used obscene matter and matter depicting sexual conduct (§ 1203.066, subd. (a)(9)), and that there were multiple victims as to counts 1 through 15, 19 and 20 (§ 667.61, subd. (b)). The trial court sentenced Brown to prison for an indeterminate term of 75 years to life consecutive to a determinate term of 29 years, four months.^[2]

Brown appeals, contending the trial court committed reversible constitutional error by admitting an expert's testimony to describe the so-called Child Sexual Abuse Accommodation Syndrome (CSAAS) in order to improperly bolster the credibility of the prosecution's minor witnesses and in permitting the prosecution to make several amendments to the information during trial, which prejudiced his substantial rights. We affirm.

FACTUAL SUMMARY

Because Brown does not challenge the sufficiency of the evidence to support his numerous convictions of sexually related misconduct, we merely give an overview of the case, reserving the pertinent facts presented at trial for our discussion of the issues he raises on appeal. Suffice it to say, the evidence at trial showed Brown had molested eight different minor boys and two girls over the period of several years while working as a counselor at Victor Junior High School (Victor), as a foster parent in Victorville, California, and also while working as a counselor at Success House, a probation home in Adelanto, California.

The abuse regarding nine of the victims evolved out of their relationship with Brown at Victor. Each had started visiting Brown's office, where he kept the blinds closed and door locked against school policy, either because he or she had received a "call slip" to report to his office or because they had wanted to miss a class. Brown would initially ask each student about problems at home or school and then ask them questions regarding their sexual experiences and development. Eventually he involved the students in inappropriate sexual touching and conduct.

Brown often had the male students apply lotion to their "creases," the area between their thighs and genitals; made bets with them about the size of their genitals and their ability to apply condoms; masturbated them; had them masturbate themselves in front of him; measured their penises while erect; gave them money for certain sexual conduct, and had some of them look at pornographic materials. Regarding the two female student victims, Brown had asked them sexually explicit questions and had hugged one while commenting on her breasts and had also had her kiss her boyfriend in front of him.

Brown had additionally taken several of the male students to lunch, to Los Angeles Laker's basketball games, and to his home before committing further sexual conduct with them. Brown even arranged to have one young male student placed with him as a foster child while he continued to sexually abuse him.

Brown preyed upon his young male victim from Success House by first visiting his room several nights a week to talk about sex, masturbation and his pubic hair. Although the 15-year-old boy was reluctant about any contact, Brown rubbed his thighs, touched his penis several times and was always asking the boy to touch himself. Against the rules, Brown took the young boy out of Success House to dinner and later to a field to drink alcoholic beverages after which he rubbed the boy's thighs and penis, asking him for more action.

In February 2002, three of the male Victor victims reported the incidents to a school security guard and Brown's sexual misconduct was gradually disclosed. In addition to the testimony of each victim at trial, which showed a clear pattern of such misconduct and corroborated the other victims' testimony, employees at Victor and Success House testified about warnings given to Brown regarding respective rules violations involving a counselor's position and his relationship with the young people at each place.

DISCUSSION

I

ADMISSION OF EXPERT TESTIMONY ON CSAAS

Brown essentially challenges the propriety of California's rule allowing limited admission of CSAAS evidence, which is a collection of behaviors that has been observed commonly in children who have experienced sexual abuse. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin); see People v. Bowker (1988) 203 Cal.App.3d 385, 389, 392-394 (Bowker).) Before addressing his specific contentions concerning CSAAS, we briefly set out the law in California regarding such evidence and the relevant background regarding its admission in this case. We shall conclude Brown's challenge to the CSAAS evidence fails.

A. The Pertinent Law

CSAAS, which was developed as a therapeutic tool to assist mental health professionals, describes five stages or behaviors commonly found in or experienced by, children who have been sexually abused, including secrecy, helplessness, entrapment and accommodation, delayed disclosure, and retraction.^[3] (Bowker, supra, 203 Cal.App.3d at p. 389, fn. 3, p. 392, fn. 8.) Evidence regarding CSAAS " ' "is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." ' [Citations.]" (People v. Housley (1992) 6 Cal.App.4th 947, 955 (Housley), quoting Bowker, supra, 203 Cal.App.3d at p. 394.) Such evidence, however, "is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident--e.g., a delay in reporting--is inconsistent with his or her testimony claiming molestation." (McAlpin, supra, 53 Cal.3d at p. 1300.) The expert testimony is "admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation." (People v. Patino (1994) 26 Cal.App.4th 1737, 1744 (Patino).)

Because particular aspects of CSAAS are as consistent with false testimony as true testimony, and there is a possibility that a jury could use the expert evidence to improperly infer that the abuse occurred, the admission of such evidence is subject to certain limitations. (Housley, supra, 6 Cal.App.4th at p. 955; Bowker, supra, 203 Cal.App.3d at pp. 393-394; Patino, supra, 26 Cal.App.4th at p. 1744.) First, the CSAAS evidence must be addressed or tailored to some specific myth or misconceptions suggested by the evidence.^[4] (Housley, supra, 6 Cal.App.4th at p. 955.) Second, the jury must be admonished that the expert's testimony is not intended and should not be used to

determine whether the victim's molestation claim is true, but is admissible solely to show that the victim's reactions are not inconsistent with having been molested. (Id. at pp. 955, 958-959.)

B. Background

During in limine motions, the court asked the prosecutor for an offer of proof on her motion to admit expert testimony on CSAAS. The prosecutor represented the expert, Vicki Lee Davio, a licensed marriage family child counselor or therapist, would testify generally for an hour about the behaviors of children which are consistent with sexual abuse, corroboration of such conduct in general, and about the concept of "grooming," which she conceded was not part of the syndrome or her written motion, but was related to it. The prosecutor explained that "grooming" would show that someone would give gifts and goodies to boys in exchange for their trust and behaviors.

Brown's counsel objected that the prosecutor's request was untimely offered because he only had one week's notice about the expert in violation of discovery rules and that he would need to get an expert to rebut the prosecution expert, whom he was well aware of, if the testimony was admitted. Counsel also objected to the concept of "grooming" and to CSAAS testimony in general on foundational grounds, arguing the prosecutor needed to identify a specific myth or misconception suggested by the evidence, have the testimony tailored to the purpose received, and not permit the expert to apply the facts of the case or conclude a certain child was molested.

Although the court and prosecutor agreed there was a technical violation of discovery rules, the court determined such was not a problem in this case because the prosecutor intended to call the expert at the end of her case during the estimated lengthy trial which would provide Brown adequate time to obtain his own expert. After hearing further argument, the trial judge then stated:

"Well, I think I can make a tentative ruling on this because based on [the prosecutor's] proffer she indicated why a child, for example, would not talk about having another male masturbate or do that in front of them, those types of sexual activities that boys would be involved in, why would they keep it secret, why would you continue to go over to someone's house knowing full well that that may be what's going to happen. [¶] Those things are part of the myth, that people would just generally come forward when something bad happens. It's not true. It doesn't happen, and I think that's what's going to happen. [¶] For Ms. Davio's testimony I'm also relying on People v. Brown [2004] 33 Cal.4th 892, which cites Bowker[, supra. 203 Cal.App.3d 385]. I'm also relying on that which cites the proposition that it is properly allowed child expert testimony to explain these things."

In response, Brown's counsel commented, "[a]s long as it is tailored. And I'm going to ask for [an Evidence Code section] 402 hearing, at least a conference and a hearing with regard to Ms. Davio's purported testimony before she actually testifies to make sure that the requirements of the law are complied with." He also asked to be able to present some additional authority regarding the concept of "grooming" which he argued is beyond the scope of CSAAS testimony.

When the prosecutor explained that the concept was "[t]aking a child and offering [him] gifts, presents, doing nice things for [him], taking advantage of whatever you see that weakness is or what's missing with that child," the trial judge stated that in his "vernacular that's not grooming." The court noted the matter would again be discussed before Davio testifies to get "some parameters, but generally speaking . . . her testimony is permissible."

Near the end of the prosecution case, after all the minor victims had testified, Brown's counsel asked for a clarification on Davio's testimony, stating he "just want[ed] to make sure what the parameters are." Counsel wanted assurance that Davio would not "be allowed to express an opinion that any person is or is not telling the truth, or an opinion as to whether or not they were molested, or . . . that the prosecutor is not allowed to tailor [her] testimony to meet the specific facts of the case." The prosecutor assured counsel and the court she was not going to ask such questions of the expert.

Subsequently, Davio testified about her familiarity with CSAAS, explaining it was not evidence to prove sexual abuse has occurred, but rather to show a typical child's behavior during or after being sexually abused. She explained the stages of CSAAS, noting the first two stages are generally true for all children whether or not they had been sexually abused, while entrapment accommodation and denial are stages more often found in sexually abused children who generally will feel trapped due to the nature of being a powerless child and will make the best of the situation, choosing to think it is not that bad. A sexually abused child will rarely fight back physically when touched inappropriately. Such children will typically blame themselves for any abuse due to their helplessness and the build up of trust in the person abusing them, making it difficult to believe they were or are being abused. Such feelings generally go into the next stage of delayed or conflicted disclosure, especially when the child is made to care about an abuser who has given the child gifts or a feeling of independence or importance. Further, a sexually abused child will often recant or retract his or her story of being sexually abused for numerous reasons such as embarrassment, perceptions that they are causing trouble, and frustrations with the whole situation. Because the situation is often confusing, especially when the abuser is the same gender as the child, causing the child to wonder if he or she is homosexual or will become one, a child will minimize the sexual abuse or change their story to try to make the problem go away.

When the prosecutor asked the expert if there was "a process that is known for when people do start to build up trust with children, give them things, give them a hug, kind of test the waters?," Brown's counsel objected, and then asked to be heard when the court overruled the objection. Counsel believed the question went beyond the misconceptions that people might have about sexually abused children because it called for "what some alleged perpetrator might do." The prosecutor thought that the court had said in limine it was alright to go into the concept of "grooming." The court agreed and told the prosecutor to lead the expert in questioning about the subject.

When the prosecutor asked Davio if there were "such a thing known as grooming?," she replied, "Yes. Actually I think I'm more knowledgeable about that word through my law enforcement training over the years and my interactions with [c]rimes [a]gainst [c]hildren psychologically." Brown's counsel renewed his objection and the court asked counsel to approach the bench, ordering an Evidence Code section 402 hearing with Davio regarding her understanding of "grooming."

Outside the jury's presence, Davio explained she was familiar with the word grooming which is similar to what she understands is psychologically happening and how the sexual abuse is started with children, but she typically does not use the term. Instead Davio discussed with children "the buildup of -- what preys in the child more helplessness, more entrapment, more learning to accommodate because they didn't understand what that adult's intent was and what was probably going to be the next thing that it would lead to. So I see it as just add[ing] to their many times [of] minimization. And hopefully as they're getting better they start to realize, oh, that's what was happening and it helps us with what we call the cognitive distance [sic] in that we start . . . to know where to place the blame, if you will, so that it's not then placed on themselves but trying to make some sense of the confusion that came about."

On cross-examination, Davio explained that it was all part of a child's feeling of helplessness. She thought, however, there was such a thing as grooming by a perpetrator and had gone to behavioral science training sessions regarding why sexual perpetrators psychologically do certain things, but was an expert in that area only as to what the literature said.

After Davio was excused, counsel argued the matter, objecting that the way Davio had explained "grooming" it appeared to explain the conduct of an alleged perpetrator rather than the children's conduct and therefore was beyond the scope of CSAAS. The court noted that if that was what it thought Davio was saying it would not allow her to do it. However, the court agreed with the prosecutor that the concept she discussed related to CSAAS by giving additional reasons why children basically keep the sexual abuse a secret.

When defense counsel further objected that Davio had already testified as to those things, arguing there was no reason to go into any opinions about what an alleged perpetrator is doing, the court commented it did not hear Davio say what counsel thought she was saying. Counsel clarified he was objecting to the "misnomer that [the prosecutor] threw out called grooming" because "that steers it away from the kids and what they do and why to what a perpetrator may be doing and why." The court then had the prosecutor list the questions she was going to further ask Davio on direct. It thought those questions were proper and Brown's counsel stated, "[w]ell those things I don't think . . . I'm within sound grounds in objecting to, but this other [grooming] I am."

The court impliedly overruled the objection, stating it thought as long as Davio's testimony did not go any further regarding "grooming" than what she had already done, there was no problem. When the prosecutor then asked that the word "grooming" not be used, the court noted Davio had essentially "discounted" such term in front of the jury saying it was basically a law enforcement term. Defense counsel seemed to acquiesce, commenting "[a]s long as we have that."

Davio again took the stand, further explaining how children often disassociate and minimize sexual abuse to emotionally protect themselves, often return to an abusive situation because they like the person or may be receiving favors and may be having a good time, and often deny sexual abuse if confronted, especially where the abuser is in a position of trust and power. She stated some children "act out" by becoming hostile, angry or get bad grades after being abused, while others "act in" by becoming depressed or withdrawn. In addition, Davio noted it was consistent and common for children not to immediately disclose abuse or to omit facts and report only a portion of the abuse when they finally did disclose the abuse. Davio clarified she did not know specific details about any of the victims in this case or what they had said. She was only told the names of the victims to ensure she had not treated any of them. On cross-examination, Davio stressed her testimony about CSAAS was not to prove or disprove sexual abuse, but only to show what commonly happens with abused children.

At the conclusion of the prosecution case, Brown's counsel stated that "given Ms. Davio's testimony . . . I don't think I'm going to call [my expert as a witness]."

During closing arguments, the prosecutor generally recapped Davio's testimony, arguing that Brown's conduct with the children in this case was "classic" in that he built up trust with his victims by buying them things and giving them gifts, and that the children were "perfect victims for him" who delayed disclosure and minimized conduct consistent with CSAAS.

Defense counsel then commented on Davio's CSAAS testimony in his closing, stating, "I'm not going to say anything bad about Ms. Davio because she confined her comments to what the law says she can testify about. And she specifically told you that she was not telling you about something that you can use to decide whether or not these allegations are true." Counsel then read the first two sentences of CALJIC No. 10.64 regarding CSAAS evidence that states, "Evidence has been presented to you concerning [CSAAS]. This evidence is not received and must not be considered by you as proof that the alleged victim's molestation claim is true." Counsel noted that the prosecutor had failed to recognize such point when she argued the CSAAS evidence in this case could be used to show the children in this case had been sexually abused, and would probably argue the same again even though such argument was a "misuse" of CSAAS evidence.

Counsel then read the remaining portions of CALJIC No. 10.64, which states:

" '[CSAAS] research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience.' . . . [¶] 'As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt. [¶] You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victim's reactions, as demonstrated by the evidence, are not inconsistent with him or her having been molested.' "

Counsel cautioned the jurors that the prosecutor wanted them to consider Davio's testimony with regard to the credibility of the alleged victims but such was problematic because Davio in effect testified that regardless whether a child reports or not, or whether a child acts out or not, "it's all consistent with them telling the truth." Counsel argued the CSAAS evidence was therefore suspect and invalid because no matter what the actual facts were in this case, any of those facts according to Davio's testimony would be exhibited by children who have been molested. Counsel then extensively challenged the credibility of each of the victims.

The court subsequently instructed the jury with, among other things, CALJIC No. 10.64 on CSAAS evidence, on the credibility of witnesses, on expert witness testimony and on the prosecution's burden of proof, including the reasonable doubt standard.

C. Issues and Analysis Concerning CSAAS On Appeal

Brown contends the trial court committed reversible constitutional error by admitting Davio's testimony on CSAAS. He specifically suggests this court should change California appellate law to follow the rule in other states that such CSAAS evidence is "inadmissible for any purpose." He further asserts that even under current California law, the CSAAS evidence in this case was improperly utilized to bolster the credibility of the minor complaining witnesses.

As the above record shows, and the People properly note in their respondent's brief, Brown did not object at trial on the grounds now raised on appeal. Rather his only objections were to the concept of "grooming," which was eventually resolved to his satisfaction; to the technical discovery noncompliance, which was not prejudicial due to the length of the trial; and on the foundational ground a myth or misconception had not been presented to the jury, for which the court properly found the evidence the children in this case initially kept the abuse secret and delayed in reporting it related to the common misconception about a child coming forward to report when something bad happens to them.

Rather, it appears Brown's real contention is a challenge, similar to others this court has seen, to the constitutionality of the admission of CSAAS evidence in California for any purpose. Relying on decisions from other jurisdictions, Brown contends the admission of CSAAS evidence violates his federal due process rights to a fair trial under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and the analogous provisions of the California Constitution. (Cal. Const., art. I, §§ 1, 7, 15 & 16.) He urges us to hold such evidence is inadmissible for all purposes, arguing that the expert evidence regarding CSAAS in effect tells the jury no matter how a child has behaved--i.e., remembering or forgetting details, engaging in short or long delay in reporting, in avoiding and not avoiding the abuser--the child acted consistently with abused children. In other words, Brown argues CSAAS evidence cannot possibly be limited to the description of myths surrounding abuse because it has no fixed characteristics and every conceivable behavior fits the syndrome. Although Brown recognizes California law admits CSAAS evidence for certain limited purposes, he asks this court to break with such authority and find that as a matter of law the trial court erred in admitting Davio's testimony "which was utilized to unfairly and improperly bolster the credibility of the prosecution's complaining minor witnesses." We decline to do so.

Although California courts have certainly recognized the problems identified by Brown and other states regarding CSAAS evidence (see Patino, supra, 26 Cal.App.4th at p. 1744; Housley, supra, 6 Cal.App.4th at p. 958), they have also found such evidence constitutionally admissible with proper admonishments to the jury regarding the limits of such evidence. (Ibid.; Bowker, supra, 203 Cal.App.3d at p. 394.) Such proper admonishments were given in this case. Brown has not produced any evidence that CSAAS evidence is no longer accepted in the scientific community or that California courts are prepared to reconsider their opinions accepting such evidence.

In addition, the California Supreme Court has referred to the admissibility of CSAAS evidence in a variety of factual contexts to support various rulings. (See McAlpin, supra, 53 Cal.3d at pp. 1300-1301; People v. Brown (2004) 33 Cal.4th 892, 905-906 (Brown).)^[5] We are bound to follow the clear import of our high court's rulings. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

In any event, our review of the record in light of the pertinent law reveals the trial court did not abuse its discretion when it admitted Davio's expert testimony concerning CSAAS. By the time Davio was called to testify, Brown's counsel had rigorously cross-examined each child-victim attacking their credibility by highlighting inconsistencies in their testimony and suggesting they were either lying or mistaken about any abuse. The misconception that a victim of child abuse would not immediately report the abuse, but keep it secret and continue to see the abuser, made the CSAAS evidence relevant in this case and its admission proper in the prosecutor's case-in-chief to rehabilitate the witness's credibility because Brown had thoroughly raised the issue on cross-examination as to whether the victim's conduct after the alleged incidents of abuse was "inconsistent with [the victims'] testimony claiming molestation." (McAlpin, supra, 53 Cal.3d at p. 1300.) As noted above, the court then properly admonished the jury as to the limited purpose of Davio's testimony.

Contrary to Brown's assertion Davio's testimony improperly bolstered the victims' credibility, Davio at no time expressed an opinion that implied the child victims in this case were telling the truth or that the molestations occurred. Nor did she testify about the specific facts of this case or know of any details about the specific child victims. Davio merely provided general testimony designed to combat myths about children's delay in reporting abuse and the manner in which they report it. Her explanation of the "trust factor" was merely one of many factors she properly explained under CSAAS concerning why a child may keep abuse a secret and was not geared to any specific child victim in this case. Her brief mention of the concept of "grooming" in response to the prosecutor's question essentially "discounted" that concept, which she understood more as a term used by law enforcement and specifically noted she did not use in her work. Brown's counsel even conceded during closing argument that he could find no fault with Davio's testimony regarding CSAAS because it comported with California law.

To the extent Brown may be claiming that the prosecutor improperly used the CSAAS evidence in her closing argument to the jury to enhance the credibility of the child victim witnesses, such claim is waived because he did not object to such argument below.

In sum, Brown has simply not shown that any of his constitutional rights were violated by the introduction of Davio's CSAAS testimony or that the court abused its discretion in admitting such evidence in light of existing California law.

II

AMENDMENT OF INFORMATION AT TRIAL

Brown also contends the trial court prejudicially erred in permitting the prosecutor to amend the information at trial to change the dates the offenses in counts 19 and 20 occurred and to amend count 25 to reflect the correct subsection of the crime to comport with the age of the alleged victim. He specifically argues the amendments to counts 19 and 20 were not supported by the evidence and that the amendment to count 25 changed the elements of the offense with which he was charged after the preliminary hearing. He accordingly asserts the amendments were not authorized by law and constitute jurisdictional error for which he need not show any prejudice. We conclude the court properly exercised its discretion to permit amendment of counts 19, 20 and 25 to conform to the evidence and that the amendments did not prejudice Brown's right to due process or a fair trial.

A. Factual Background

As of October 14, 2004, the fourth amended information charged Brown in counts 19 and 20 with committing two lewd acts upon a child, C., in violation of section 288, subdivision (a), in 1993 and 1994, respectively. Count 25 charged Brown with a violation of section 289, subdivision (i), alleging he had sexually penetrated M., a child under the age of 16, with a foreign object.

During pretrial motions on November 1 and 2, 2004, the prosecutor noted she needed to make "a date change" for counts 19 and 20 because it appeared that after reviewing the information and preliminary hearing those dates were wrong and it should reflect "1994, 1995, 1996." Defense counsel was granted time to "look at the transcript."

After the jury was selected and sworn, the matter was raised again, with defense counsel voicing his objection to any amendment of counts 19 and 20 because the preliminary examination showed the conduct occurred from 1993 through 1994. The prosecutor disagreed, stating the preliminary hearing as to those counts described the conduct which would not change just because the dates needed to be changed. Because the notes of one investigator and the police reports showed conduct occurring through 1996, the prosecutor thought the 1993 to 1994 dates were wrong, noting defense counsel was "certainly . . . on notice" as to all conduct Brown allegedly had with C. and the various dates.

Although the court thought the matter of the dates should have been clarified earlier, it stated it would read the dates as contained in the fourth amended information to the jury, but allow the prosecutor to later make a motion to amend the dates for those counts to conform to the evidence that comes out. When defense counsel again objected, this time based on statute of limitations problems, the court said counsel could make a motion to dismiss on such ground. When defense counsel continued to object, the court said it would entertain an Evidence Code section 402 hearing with C. before he testifies and consider all motions at that time and specifically requested the prosecutor file a written motion regarding any amendment and statute of limitations problems.

On November 30, 2004, the prosecutor filed such a motion. At a December 6, 2004 hearing, defense counsel continued to argue that the new dates would allege a different offense than the time frame of 1993-1994 alleged for the preliminary hearing in this case. The court noted it did not have a problem with amending a date to conform to proof because "there's case law that allows that to happen. That's more administerial than substantive." When the court stated, "[o]n the other hand, if you're talking about a change in action, talking about a change in conduct, a change in things that the defense can really defend against --," the prosecutor reassured the court the prosecution was alleging the same conduct and only asking to amend the information to change the dates to conform with the evidence of C. being 13 years old, which was still a section 288, subdivision (a) offense. The court noted defense counsel's objection to the amendment but ruled it was going to "allow that to happen" as long as the conduct was the same.

When C. subsequently testified, he stated he was 13 years old when he met Brown and attended Victor for the seventh grade in 1997. C. visited Brown at his school office almost every day that year, telling him about his personal life and difficulties at home. At some point, Brown, who was licensed to provide foster care, offered to have C. placed with him. Before such placement, C. and Brown often had discussions about sex, condoms and C. 's sexual history in Brown's locked office with the blinds closed. Over a period of time Brown also had C. rub lotion on himself, including his penis, had him measure his own penis, and had him masturbate until ejaculation in front of Brown.

After C. moved in with Brown, the inappropriate sexual activity continued at least two or three times a week with C. sleeping in Brown's bedroom. Brown often showed C. pornography and would give him money if he ejaculated after masturbating for him or if C. needed it. C. believed he was about 14 years of age when he left for Las Vegas to live with family after having stayed with Brown as a foster child for about eight months.

M. also had testified in the prosecution case. He was born in June 1985 and attended Victor for seventh and eighth grades. He only started going to Brown's office about every day in September 1999, which was the beginning of his eighth grade. During these visits, they would talk about girls and sex, including M. 's pubic hair. During one visit, Brown had M. put on a condom and touched his penis, complimenting him on a "good job." A month later, Brown told M. he needed to learn how to put a condom on in the dark and repeated the inappropriate sexual touching after putting his hands over M. 's eyes.

In December of that year, Brown brought M. to his house, had him shower and then applied lotion to his back, arms, legs, and penis, before masturbating him for about 10 to 20 minutes. Later that same month, Brown again took M. to his home, removed his clothes and shaved his pubic hair before showing him some sexually explicit videos, massaging his body and masturbating him. M. believed that each time he slept over at Brown's house, which was approximately every other weekend since the first visit, Brown masturbated him. The visits continued even when M. went to high school at a different school.

Either the end of 2001 or early 2002 was the last time Brown sexually abused M. while he was at his house. At that time, Brown had M. remove his clothes before he massaged him, masturbated him for about 10 minutes and then rubbed his butt and penetrated his anus with his finger. M. believed he was about 15 and a half years old at that time.

Shortly before the close of the prosecution case, the prosecutor asked the court to amend count 25 involving M. to reflect it was section 289, subdivision (h) rather than section 289, subdivision (i) as charged based on M. 's testimony "he could have been actually 16 at that time." Although the prosecutor represented the conduct and penalty would be the same under both subsections, Brown's attorney objected, stating such amendment would change the elements of the crime charged. The court noted and overruled the objection for the record, allowing the change.

B. Relevant Law

Section 1009 provides in relevant part that "[t]he court in which an action is pending may order or permit an amendment of an . . . information . . . for any defect or insufficiency, at any stage of the proceedings. . . . [And if at trial,] the trial . . . shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An [information] cannot be amended . . . so as to change an offense not shown by the evidence taken at the preliminary examination. . . . " In other words, the trial court has discretion to permit amendment of an information at any time during trial provided the amendment does not change the offense to one not shown by the evidence adduced at the preliminary hearing and provided the substantial rights of the accused are not prejudiced by the amendment. (People v. Winters (1990) 221 Cal.App.3d 997, 1005.) The decision to permit an amendment to the information is a matter left to the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing of an abuse of that discretion. (Ibid.) "In accordance with these principles, it has been held to be a correct exercise of discretion to allow an amendment of an information to properly state the offense at the conclusion of the trial. [Citations.]" (People v. George (1980) 109 Cal.App.3d 814, 819 (George).)

C. Analysis

Here, with regard to counts 19 and 20 involving C., the evidence at the preliminary hearing showed that C. was born in August 1984, attended Victor for seventh grade, was placed in foster care with Brown that same year, and was sexually abused by Brown during that time As the prosecutor properly explained to the court, the testimony at the preliminary hearing by a detective that the sexual abuse occurred approximately between the years 1993 to 1994 was in error because the evidence at trial would show C. was 13 years old in 1997 when he was in the seventh grade and lived with Brown. Due process only "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.) Because Brown had notice of the two charges against him involving C. and the proposed amendment would not change those offenses or add any new charges regarding C., but would only correct a defect in the time frame those alleged crimes occurred, we cannot say the trial court abused its discretion in permitting the prosecutor to amend the information to conform with the anticipated trial evidence regarding the proper dates for counts 19 and 20.

Brown simply has not shown that his substantial rights were prejudiced by the amendment correcting the dates for counts 19 and 20. Brown had a meaningful opportunity to present a defense to the charges, which was to deny the alleged conduct and attack C. 's credibility, and also had the opportunity to bring a motion to dismiss such counts at the end of the prosecution case, but did not. Nor can Brown claim any surprise by the corrections because he essentially had personal knowledge about when C. attended seventh grade at Victor due to having him live with him as his foster child that year. No abuse of discretion is shown regarding the amendment of counts 19 and 20.

Moreover, we can find no abuse of discretion in the court amending count 25 near the end of the trial in this case. The evidence at the preliminary hearing showed that M. had told a detective he thought he was born in June 1986, was about 13 years old in eighth grade, 14 years old in ninth grade and that the last sexual conduct with Brown, which eventually was alleged in count 25, occurred during the two or three week break after Christmas while he was in 10th grade. However, after M. testified at trial, it became clear his birthday was a year earlier than he believed and the dates he had given the detective before trial which were presented at the preliminary hearing may have been wrong.

Although Brown is correct in stating that an element of count 25 is different after the amendment because section 289, subdivision (i) as originally charged required the prosecutor prove that M., the victim of the penetration by a foreign object for purposes of sexual arousal, gratification or abuse, was a person under the age of 16 and Brown was over 21 years of age while subdivision (h) of section 289 required only that the prosecutor prove M. was under the age of 18, the underlying criminal conduct necessary to prove both subdivisions is, and was, the same. Essentially subdivisions (h) and (i) of section 289 define the same exact crime with the exception of the age of the victim, which is basically used to describe the punishment for the offense. In other words, subdivision (h) of such statute defines a "wobbler" offense which is "punished by imprisonment in the state prison or in the county jail for a period of not more than one year" when the defendant commits the penetration by a foreign object with a victim under 18 years of age. (§ 289, subd. (h).) Subdivision (i) of section 289 defines a straight "felony" for a defendant over the age of 21 years who participates in the described penetration by a foreign object with a victim under the age of 16 years of age.

Here, Brown had notice of the underlying section 289 criminal conduct charged in count 25 involving M. and was not precluded from presenting a defense to such charge. That the court permitted the prosecutor to amend count 25 to show the victim was less than 18 rather than 16 based on the evidence at trial and treat the alleged wobbler as a felony, the same as originally charged, cannot be said to have prejudiced Brown's substantial rights. The elements of the substantive crime were not changed by the amendment, only the age element for purposes of punishment was changed. Brown did not bring a motion to dismiss count 25 at the end of the prosecution case based on lack of proof of M. 's age being under 16 before the prosecutor asked to amend such count. As noted earlier, application of section 1009 to allow an amendment to an information to properly state an offense at the conclusion of the trial is a proper exercise of a court's discretion. (George, supra, 109 Cal.App.3d at p. 819; see also People v. Flowers (1971) 14 Cal.App.3d 1017 and cases cited there.) No abuse of discretion is shown regarding the amendment of count 25.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting 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] The transcript of the sentencing hearing reflects that although the trial court stated it was imposing a total determinate term of 27 years, four months under section 1170.1, the total time imposed actually adds up to 29 years, four months as noted in the corrected minutes of the sentencing and in the two attachment pages reflecting the determinate terms of the abstract of judgment (the page 1 attachment shows a total time of 28 years, eight months and the page 2 attachment shows eight additional months). By operation of law this total determinate term of imprisonment ordered to run consecutive to Brown's indeterminate life terms will be "served first and no part thereof shall be credited toward [his] eligibility for parole . . . ." (§ 669.)

^[3] The shorthand term "CSAAS evidence" does not necessarily refer to all of these stages, but encompasses the aspects that are relevant to rebut misconceptions about a child's reaction to abuse. (See Bowker, supra, 203 Cal.App.3d at p. 391, and fn. 8.)

^[4] "Identifying a 'myth' or 'misconception' has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim's credibility is placed in issue due to . . . paradoxical behavior, including a delay in reporting a molestation. [Citations.]" (Patino, supra, 26 Cal.App.4th at pp. 1744-1745.) CSAAS testimony "is admissible to rehabilitate [the complaining] witness's credibility when the defendant suggests that the child's conduct after the incident--e.g., a delay in reporting--is inconsistent with his or her testimony claiming molestation." (McAlpin, supra, 53 Cal.3d at p. 1300.)

^[5] In McAlpin, the court held that an expert could properly testify it was not unusual for a parent to refrain from reporting a known molestation of his or her child. (McAlpin, supra, 53 Cal.3d at pp. 1300-1302.) In support of such ruling, the court cited to lower appellate court cases allowing the limited admission of CSAAS evidence. (Id. at pp. 1300-1301.) In Brown, our high court supported its holding that expert evidence about the common responses of domestic abuse victims was admissible even in a case involving a single instance of physical abuse by again referring to the rule allowing CSAAS evidence. (Brown, supra, 33 Cal.4th at pp. 895-896, 905-906.)