PEOPLE v. CORNETT








Filed 12/6/10




CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DAVID CORNETT, Defendant and Appellant.

A123957 (Sonoma County Super. Ct. No. SCR-504048)

Defendant Michael Cornett was charged with molesting his two stepdaughters, 10‑year-old Jane Doe 1 and six-year-old Jane Doe 2, with the final instance captured in a photograph taken by defendant’s 12-year-old stepson. A jury found defendant guilty on all seven felonies alleged against him, and found all special allegations to be true—including that 11 years earlier he had been convicted of molesting yet another stepdaughter. Defendant was sentenced to 10 years, plus 150 years to life in state prison.
Defendant makes numerous arguments on appeal, asserting myriad errors during trial and at sentencing. The People concede that two of the arguments as to sentencing on count 6 are well taken, and we conclude that an argument as to the conviction on that count has merit as well, requiring a reversal of the conviction on that count.
We shall also reverse the conviction on count 7, alleging commission of a lewd and lascivious act on a child under the age of 14 (because no evidence regarding that offense was presented at the preliminary hearing), modify two rulings made at sentencing, and in all other respects affirm, leaving defendant convicted of six felonies. The judgment is affirmed as modified, a modification that does not affect the aggregate sentence imposed by the trial court.
All these issues, save one, are addressed in the unpublished portion of this opinion. The singular exception, the one issue addressed in the published portion of the opinion, is an issue apparently never before addressed in California: was Jane Doe 1, who was 10 years 11 months at the time of the molestation, a “child . . . 10 years of age or younger” within Penal Code section 288.7, subdivision (b),[1] the offense charged in count 6. We answer in the negative, concluding that “a child who is 10 years of age or younger” excludes children who have passed the 10th anniversary of their birth.
EVIDENCE AT TRIAL*
The Incident on January 9, 2007*
Defendant and Angela Cornett, who had been friends since they were young, began dating in May 2003 and married in November the following year. At the time they began dating, Angela had three children from a prior relationship—three-year-old Jane Doe 2, seven-year-old Jane Doe 1, and 10-year-old Dion.[2]
At some point near the end of 2006, Angela and defendant, who had been living in Marin, bought property in Sebastopol. There were multiple houses on the property, all of which needed work before they were habitable. Angela, defendant, and the children were going to live in one house, and Angela’s mother and father were each going to live in one of the two smaller houses. By January 2007, most of the work had been completed on the main house, and Angela and her family had moved in. The house for Angela’s father was almost ready, with some minor work remaining to be done.
On the evening of January 9, 2007, Angela was sleeping on the couch in the main house. She woke up, noticed it was time for the girls to go to bed, and asked Dion to tell his sisters it was bedtime. According to Dion’s testimony, at the time, Jane Doe 1 was at her grandfather’s future house, and Jane Doe 2 in the main house. Dion went to his grandfather’s house and looked in the living room window. He did not see anyone, so he tried to open the front door, but it was locked. Noticing that the bedroom light was on, he walked over to the bedroom window. Peering inside, Dion saw Jane Doe 1 lying on her back on the bed. She was wearing nothing but a shirt and had her legs open. Defendant was on top of her, with his hands pushing her legs down, orally copulating her.
Dion ran back to the main house, grabbed a camera, and returned to his grandfather’s house. Again looking through the window, he saw defendant in essentially the same position as before, although his head was now up. Dion took a picture through the window, ran back to the main house, told his mother, “Mom, he’s molesting Jane Doe 1,” and showed her the picture he had taken.
Angela ran down to the grandfather’s house, where she found Jane Doe 1 sitting on the coffee table watching television and defendant doing some work on the countertop in the kitchen. She repeatedly demanded to know “[w]hat the hell’s going on here‌” Defendant responded that he did not know what she was talking about. Dion, who was right behind Angela, said, “You were licking her vagina,” which defendant denied. After sending Dion and Jane Doe 1 back to the main house, Angela continued to confront defendant, at one point punching him in the face. Defendant eventually changed his story, claiming that it happened because Jane Doe 1 instigated it, although he was vague about what happened.
Once back at the house, Dion called “Auntie Yaqinah,” a close family friend considered to be an aunt by Dion and his sisters. Dion told Yaqinah he saw defendant on top of Jane Doe 1 and they were “doing it.” When Yaqinah suggested that perhaps he was mistaken and that he should get some evidence, Dion told her he had already taken a picture. She then told him to call the police, which he did.
Yaqinah also spoke with Jane Doe 1, who sounded “shaky.” Jane Doe 1 told her that she was playing in her grandfather’s house when defendant came into the room, pushed her down on the bed, and pulled down her clothes. He started touching her with his hand and then, according to Jane Doe 1, “He did it.”
Yaqinah also spoke with Angela who was “really, really upset.” Angela told her that defendant had admitted everything.
Santa Rosa Sheriff Deputies Cutting and Salkin arrived within minutes and found defendant and Angela standing in the driveway. As Deputy Cutting began speaking with defendant, he detected an odor of alcohol but observed no outward symptoms of intoxication. When the deputy asked defendant if he knew why he, the deputy, was there, defendant responded that his stepson had called the police. Defendant then volunteered that he had been doing some work at what was going to be his father-in-law’s house when Jane Doe 1 came in to have a conversation. During this conversation, she was seated on the bed and he was standing a few feet away. According to the deputy, at no point did defendant ever mention that he horsed around with Jane Doe I, tickled her, or gave her a raspberry, or that he bent down to pick up screws.
That night, Jane Doe 1 was taken to Redwood Children’s Center (RCC) for a forensic interview.[3] A genital swab and a blood sample were also taken, and analysis of the swab determined that the sample contained amylase, an enzyme found in saliva. A DNA analysis of the genital swab and an oral swab taken from defendant determined that his DNA matched that found on the genital swab. The likelihood that someone’s DNA would match that found in the genital sample was 1 in 3.2 quadrillion African-Americans, 1 in 51 trillion Caucasians, and 1 in 800 trillion Hispanics.
The next day, Detective Joel Pedersen of the Sonoma County Sheriff’s Department spoke with Angela. She told him that Jane Doe 2 had told her defendant had orally copulated her the previous night. Consequently, Jane Doe 2 was taken to RCC to be interviewed.
Interview of Defendant*
Defendant was taken to the Sonoma County Sheriff’s Department, where he was interviewed by Detective Pedersen in the early morning hours of January 10, 2007. Defendant initially told the detective that while he was working on the kitchen that evening, Jane Doe 1 came into the house and went into the bedroom, where she started doing gymnastics on the bed. She called for him to come into the room because she wanted to discuss something that had happened. While she was still jumping on the bed, defendant dropped some screws so he bent down to pick them up. Dion then ran into the room or began banging on the door and saying, “ ‘I took a picture of you. I took a picture of you.’ ” When Detective Pedersen asked defendant if he had touched or come into close contact with Jane Doe 1, defendant responded, “ ‘I mean, I don’t even remember—I don’t remember even brushing up against her, but it’s—it’s a very tight space right there.’ ”
Over the course of the interview, defendant’s version of the incident evolved. At one point he claimed he “probably” horsed around with Jane Doe 1 a bit while she was bouncing on the bed and that it was possible he tickled her on his way back up from picking up the screws. At another point, he said he believed he pushed her down on the bed and then tickled her. He later claimed he sometimes tickled the girls and gave them raspberries—“you know, blow on their belly”—but he could not remember if he had given Jane Doe 1 a raspberry that night, and was pretty sure he had not.
Detective Pedersen specifically asked defendant about Jane Doe 1’s pants coming down. At that point, defendant denied that her pants were down. When asked about her shirt coming up, defendant first said he did “ ‘[n]ot specifically’ ” remember that happening, but then later said, “ ‘[Y]ou know, I mean, we’re jumping around on the bed and you’re wearing loose clothes, it’s entirely possible that, um, clothes move around.’ ”
When Detective Pedersen again asked defendant what happened that night, defendant offered yet another version. This time, he claimed Jane Doe 1 was in the bedroom doing flips on the bed. He told her to get off the bed and may have tickled and horsed around with her a bit: “ ‘I may have even, um—nah. I was thinking I may have even, you know, bounced her back on the bed or something. But I was telling her to get off the bed so I’m pretty sure I didn’t do that.’ ” When asked again about her pants coming down, defendant this time responded, “Um, I mean, I guess if she had scooted back on the bed when I was bending down to pick up the screws. As I said, I don’t remember seeing her pants down.”
Detective Pedersen also asked what the picture Dion took was going to show. Defendant said he did not know, that he would have to see the photo. When asked how Jane Doe 1’s legs got up in the air, defendant hypothesized that they may have come up when he was tickling her, like she scrunched her legs up, contradicting a prior claim that her legs were never in the air. He also said that his arms may have gotten tangled up in her legs either when she scrunched her legs or when he was standing back up.
Detective Petersen asked defendant, “ ‘When I find your DNA that’s been swabbed off of her vagina from your saliva, why would it be there‌’ ” Defendant suggested “ ‘maybe drool.’ ” When asked how his drool got on Jane Doe 1’s vagina, defendant responded, “ ‘Unless I did—I don’t know—drool a little bit on her stomach and then she put her hand down there and did it. I don’t know. I mean, I know that’s pretty impossible any other way.’ ”
Detective Pedersen asked defendant to summarize the incident one more time. Defendant explained that he was working on the house when Jane Doe 1 came in, went into the bedroom, and began bouncing and doing flips on the bed. He went into the room and told her to stop bouncing on the bed. She told him something about her brother, and he said he would look into it. She then rolled back, did a back-flip, and bounced over the edge of the bed. He then tickled her, and when she squirmed, he dropped his screws. He bent down to pick up the screws and tickled her again as he was getting up. He did remember part of her belly being exposed because “ ‘that’s a prime tickling spot.’ ”
Prior to the interview, Detective Pedersen had run a criminal history on defendant and learned he had previously molested another stepdaughter. During the interview, the detective asked defendant about this prior conviction. Defendant claimed that his stepdaughter at the time, Jessica, came to him and told him that some of her friends were doing “things” with their stepbrothers. According to defendant, he felt that she was probing him to find out what he thought about it, so he told her that what her friends were doing was inappropriate and they should stop. Defendant had also had a conflict with Jessica during her birthday party, that she was arguing with her girlfriends so he told her the party was over. The next day he was contacted by the Marin County Sheriff’s Department. He told them that Jessica had grabbed him in the crotch a few times—“ ‘more or less playing’ ”—and the next thing he knew he was signing a confession to something he had not done.
Detective Pedersen’s interview with defendant was being recorded, and after the detective left the room, defendant could be heard saying, “ ‘Oh, fuck, I’m so fucking scared. It’s all over.’ ”
Testimony of Jane Doe 1 and Jane Doe 2*
Jane Doe 1, who was 12 years old at the time of trial, testified that on the evening of January 9, 2007, she and Jane Doe 2 were in their grandfather’s future house with defendant. Defendant was doing some work, while the girls were jumping on the bed in the bedroom. Defendant came into the bedroom and told the girls to take their clothes off and jump on the bed naked. Jane Doe 1 testified that she was “pretty sure” Jane Doe 2 took all of her clothes off, although she “d[id]n’t know.” [4] During her interview at RCC, Jane Doe 1 had told the interviewer that Jane Doe 2 had taken off all her clothes. Jane Doe 1 also testified that Jane Doe 2 had jumped on the bed naked at defendant’s request, and when she did a handstand, defendant held her legs and blew on her vagina. According to Jane Doe 1, she herself did not take off her clothes, and did not jump on the bed naked.
At some point, Jane Doe 1 took her sister back to the main house to go to bed. She then returned to her grandfather’s house to turn off the bedroom light. Defendant was still there, and he followed her into the bedroom. He told her that she could lie down, and when she said she did not want to, he put his hands on her shoulders and forced her down. When he started to take off her pants and underwear, she told him to stop but he did not. He started to touch her, putting his mouth and his hands on her vagina. She then saw a flash at the window. Defendant said he thought he saw a flash, stopped touching her, and left the room.
Jane Doe 1 pulled up her underpants and pants and tried to get out of the house. She did not know how to unlock the door, however, so she sat down and watched television while defendant went into one of the back rooms. She soon heard banging on the door, looked out the window and saw that it was her mother and Dion; figuring out how to open the door, she let them in. Her mother told her to go back to the main house, which she did. She then went into her room and crawled into bed in the dark, feeling scared and upset.
Jane Doe 2, who was eight years old at the time of trial, also testified about what happened the evening of January 9, 2007. As she described it, she and Jane Doe 1 were playing at their grandfather’s house. Defendant had told them not to wear any clothes, so both she and her sister were naked. They were playing on the bed, and when she did a handstand, defendant touched her vagina with his tongue. According to Jane Doe 2, Jane Doe 1 also did handstands on the bed, and defendant touched her, too. The two girls then sat down on the bed, and defendant unzipped his pants, pulled down his underwear, and told the girls to touch his penis. Both girls touched it with their hand. Jane Doe 1 then took her back to the main house and put her to bed, although she did not go to sleep until after the police left later that night.
A video recording of a portion of Jane Doe 2’s RCC interview was played at trial. In the interview, Jane Doe 2 talked about defendant showing her his penis. As she described it to the interviewer, “It was standing up straight,” “[i]t was kind of a little bit soft,” “[b]ut it was really rough.” She drew of a picture of defendant’s genitals, including two “balls” like “basketball[s]” and then the penis with “little bumps.” Jane Doe 2 also described having seen defendant’s “boy part” on more than one occasion, one of which was on January 9, 2007, when she and Jane Doe 1 were in their grandfather’s house. She described “stuff” coming out of the “boy part.” Defendant told both girls to put their finger in the hole at the tip of his “boy part.” Jane Doe 2 did as defendant instructed, but she told the interviewer that she was uncertain whether Jane Doe 1 did so. At some point, defendant “squeezed” his penis and “weird, greasy stuff” that was white came out and went onto the “boy part.” Defendant then pulled up his pants. At some point that same night, defendant told the girls to take their clothes off. After they jumped around on the bed, he told them to put their clothes back on before anyone saw them.
Jane Doe 2 also described an incident in which defendant touched her “back here and in here.” When prodded to describe what that meant, she marked her genitals on a picture of a little girl and wrote that defendant touched her “butt.” On more than one occasion, when they were alone in the kitchen, defendant put his hand under her clothes and touched her skin. Although she could not identify how many times this occurred, she specifically identified “Saturday” as one of the times this happened.[5]
Additional Evidence at Trial*
Defendant’s former stepdaughter Jessica also testified at trial. Jessica, who was 23 years old at the time of trial, was younger than 10 years old when she met defendant, who married her mother and came to live with them. She recounted how defendant would come into her room at night, put his hands inside her clothes, and touch her vagina, chest, and bottom. Jessica pretended to be asleep when it happened and never said anything while defendant was touching her. This happened frequently, three to four times a week in the beginning and then once or twice a week after her little sister was born. It went on for “a few years” and stopped when she was in fifth grade because she “[g]ot tired of it” and told her school principal. She never told anyone before that because defendant used to hit her when she was younger, and she was afraid of his anger.
Kristin Allen, an investigator in the Sonoma County District Attorney’s Office, also testified. In 1996, when she was a detective with the Marin County Sheriff’s Office, she interviewed defendant in connection with allegations by then 12‑year-old Jessica that he had sexually molested her. During that interview, defendant told her that Jessica was beginning to go through puberty and had approached him because she was curious about sexuality, claiming that she was planning on becoming sexually active and was, in fact, sexually active with her stepbrothers. Defendant claimed he was concerned for her and wanted to talk to her about it, but Jessica said that the only way she would tell him what she and her stepbrothers were doing was to act it out with him. According to defendant, Jessica also told him she was interested in being sexually involved with him. Defendant explained that it began with a few incidents of fondling, and then evolved to genital-to-genital touching. According to Allen, defendant then signed a written confession.
The prosecutor introduced into evidence the information, guilty plea, and abstract of judgment from the resulting conviction.
The prosecutor also played for the jury four telephone calls between Angela and defendant that occurred while he was incarcerated and awaiting trial. In one call, defendant told Angela, “I’ve not only destroyed my life, but many lives around me.” In another, when Angela remarked that everything they had had been “ripped” away, defendant responded, “Unfortunately, I’m the one who did it. And it eats at me every single day.” Later in the same call he admitted to being “ashamed.” In a third call, defendant apologized to Angela and remarked that he could not believe he had destroyed their lives. In that same call, he told her that everything he had read about the case against him was “complete lies.” Angela responded that while she did not know what the children’s statements said, “I know, and you know, what happened.”
In the fourth telephone call, defendant was talking about his upcoming preliminary hearing and told Angela that he needed to “get . . . some recantation on . . . statements that were made,” because they were not true. Angela asked if that meant he lied to her on the night of the incident, presumably referring to his admission that something happened between him and Jane Doe 1, albeit supposedly at her instigation. After claiming he did not remember the conversation, he eventually responded, “I’m always honest with you, Sweetheart.” He then reiterated his desire to get the children to recant their prior statements, to “get new statements saying that what is in the previous statements is completely wrong, . . . was made up out of . . . fear or coaching.”
Angela also testified about a letter defendant sent to his sister, which his sister then forwarded to Angela. In the letter, he again discussed getting the children to change their stories. The letter also mentioned Jessica, his former stepdaughter, again asking his sister to try to contact her and get her to retract her story that he previously molested her.
Dr. Anthony Urquiza, a clinical psychologist, testified as an expert in the area of child sexual abuse accommodation syndrome. Dr. Urquiza testified that it is typical for a child who has been sexually abused to delay disclosing the abuse due to fear, embarrassment, and shame. He explained that abused children are often coerced, both overtly and covertly, to keep quiet about the abuse. When the child does disclose the abuse, it typically happens as a process over time. In other words, the child will often initially disclose one aspect of the abuse and then wait to see if he or she will get in trouble. If not, the child will then add more to the disclosure, and even more later on. Sometimes, a child discloses sexual abuse, and then later retracts or minimizes the allegation due to family pressure, negative consequences, or the other parent’s continuing relationship with the perpetrator.
Dr. Urquiza also explained that because children often have a relationship with the abuser, they are reluctant to disclose the abuse because they do not want the person they like to get in trouble. They also fear break up of the family if the abuser is a family member.
PROCEDURAL BACKGROUND
By complaint filed January 11, 2007 and amended on May 16, 2007, the District Attorney of the County of Sonoma charged defendant with the following five felonies: (1) aggravated sexual assault upon Jane Doe 1, a child under the age of 14 years, on January 9, 2007 (§ 269, subd. (a)(4)); (2) oral copulation upon Jane Doe 1, a child under the age of 14 years and more than 10 years younger than defendant, on January 9, 2007 (§ 288a, subd. (c)(1)); (3) commission of a lewd and lascivious act on Jane Doe 2, a child under the age of 14 years, on January 9, 2007 (§ 288, subd. (a)); (4) commission of a lewd and lascivious act on Jane Doe 2, a child under the age of 14 years, on January 6, 2007 (§ 288, subd. (a)); and (5) commission of a lewd and lascivious act on Jane Doe 2, a child under the age of 14 years, on January 6, 2007 (§ 288, subd. (a)).
The amended complaint also alleged the following enhancements as to all counts: (1) defendant was previously convicted, on April 25, 1996, of committing a lewd act upon a child in violation of section 288, subdivision (a) (§ 667.71); (2) defendant committed offenses against more than one victim (§ 667.61, subd. (b)); (3) on April 25, 1996 defendant was convicted of violating section 288, subdivision (a) (§ 1203.066, subd. (a)(5)); (4) defendant committed the above offenses on more than one victim at the same time and in the same course of conduct (§ 1203.066, subd. (a)(7)); and (5) defendant had substantial sexual conduct with Jane Doe 1 (counts 1, 2) and Jane Doe 2 (counts 3, 4, 5) who were under the age of 14 years (§ 1203.66, subd. (a)(8)). The amended complaint also alleged in aggravation that in April 1996 defendant had been convicted of committing a lewd act upon a child in violation of section 288, subdivision (a), which constituted a prior strike conviction (§ 1170.12) and a prior serious felony conviction (§ 667, subd. (a)(1)).
A preliminary hearing was held on August 15, 2007. At the conclusion of the hearing, the court held defendant to answer all charges alleged against him. Two weeks later, the district attorney filed an information alleging seven counts against defendant. In addition to the five counts previously alleged, the district attorney added two others: (6) oral copulation upon Jane Doe 1, a child who was 10 years of age and younger, by a person 18 years of age and older, on January 9, 2007 (count 6; § 288.7, subd. (b)); and (7) commission of a lewd and lascivious act upon Jane Doe 1, a child under the age of 14 years, on January 9, 2007 (count 7; § 288, subd. (a)).
Trial began on October 27, 2008. Following motions in limine, jury selection, and preliminary instructions, testimony began on November 6, 2008. On November 18, 2008, after calling 16 witnesses, the People rested. Defendant rested without presenting any evidence.
On November 20, 2008, after the court heard closing arguments and instructed the jury, the jury began deliberations. After less than seven hours of deliberations over the course of three days, the jury found defendant guilty on all seven counts and found all allegations to be true.
On January 27, 2009, the court sentenced defendant to state prison for 10 years, plus 150 years to life with the possibility of parole, calculated as follows: count 1: 25 years to life, doubled due to the strike to 50 years to life, plus a consecutive five-year term for the section 667, subdivision (a)(1) enhancement; count 2: 25 years to life, doubled due to the strike to 50 years to life, with a five-year enhancement under section 667, subdivision (a)(1), stayed pursuant to section 654; count 3: consecutive 25 years to life, doubled due to the strike to 50 years to life, plus a consecutive five-year term for the section 667, subdivision (a)(1) enhancement; count 4: consecutive 25 years to life, doubled due to the strike to 50 years to life, with the section 667, subdivision (a)(1) enhancement stricken; count 5: concurrent 25 years to life, doubled due to the strike to 50 years to life, with the section 667, subdivision (a)(1) enhancement stricken; count 6: concurrent 25 years to life , doubled to 50 years to life due to the strike, stayed, with the section 667, subdivision (a)(1) enhancement stayed; and count 7: concurrent 25 years to life, doubled due to the strike to 50 years to life, with the section 667, subdivision (a)(1) enhancement stricken.
This timely appeal followed.
DEFENDANT’S CONTENTIONS
Defendant asserts the following claims: (1) his conviction on count 7—that he committed a lewd act on Jane Doe 1 when she touched his penis on January 9, 2007—must be reversed because the prosecutor failed to present evidence of that incident at the preliminary hearing; (2) his conviction on count 7 must be reversed because it was not supported by sufficient “credible” evidence; (3) the trial court erred in admitting the videotaped interview of Jane Doe 2 at the RCC and instructing the jury that the interview was affirmative evidence or, alternatively, his counsel’s failure to object to admission of the videotape constituted ineffective assistance of counsel; (4) his sentence under the habitual sexual offender law (§ 667.71) must be set aside because the People failed to plead that defendant was a habitual sexual offender and the jury did not make a finding as to his status as a habitual sexual offender as required by section 667.71, subdivision (f); (5) his conviction on count 6—oral copulation on Jane Doe 1, a child 10 years of age or younger—must be reversed because Jane Doe 1 was over the age of 10 years at the time of the crime; and (6) the two five-year sentences imposed for defendant’s prior serious felony conviction must be stricken because he was sentenced under an alternative sentencing scheme applicable to habitual offenders or, alternatively, that only one five-year enhancement could be imposed.[6] We address these contentions in turn.
DISCUSSION
A. Defendant’s Conviction On Count 7 Must Be Reversed Because There Was No Evidence Supporting The Offense Presented At The Preliminary Hearing And Defendant Could Not Reasonably Have Been Expected To Object To This Defect*
As set forth above, the amended complaint charged defendant with two counts involving Jane Doe 1: aggravated sexual assault by oral copulation (count 1) and oral copulation on a person under the age of 14 years and more than 10 years younger than defendant (count 2). The remaining three counts (counts 3, 4, and 5) charged defendant with committing a lewd and lascivious act on Jane Doe 2. Following the preliminary hearing, the district attorney filed an information alleging two additional charges involving Jane Doe 1: oral copulation on a child 10 years of age or younger (count 6), and commission of a lewd and lascivious act on a child under the age of 14 years (count 7).
Defendant does not challenge the district attorney’s right to allege in the information additional charges not included in the complaint before the magistrate. Defendant correctly notes, however, that the charges may only be added if evidence was presented to the magistrate showing that the offense was committed or that it arose out of the transaction that was the basis for the commitment. (§ 739; Jones v. Superior Court (1971) 4 Cal.3d 660, 664-665; People v. Burnett (1999) 71 Cal.App.4th 151, 165‑166.) Defendant contends his conviction on count 7 violated this rule because there was no evidence supporting the offense presented at the preliminary hearing. We agree.
Count 7 did not specify the act that was the subject of that count. Instead, it alleged that on or about January 9, 2007, “defendant did violate Section 288(a) of the Penal Code, in that the said defendant 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 #1 (DOB 2/15/96), 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.” In closing argument, the prosecutor told the jury that count 7 was “when Jane Doe [1] touched [defendant’s] penis,” an argument based on Jane Doe 2’s trial testimony that when defendant told her and her sister to touch his penis, they both did so.
But in contrast to that trial testimony, there was no evidence before the magistrate that Jane Doe 1 touched defendant’s penis.[7] Detective Pederson, who was present at the January 10 RCC interview of Jane Doe 2, testified at the preliminary hearing that Jane Doe 2 told the RCC interviewer defendant had instructed both sisters to take off their clothes.[8] She then described defendant masturbating to the point of ejaculation. According to Jane Doe 2, defendant also told both girls to place their fingers on the tip of his penis. Detective Pederson testified that Jane Doe 2 told the interviewer that she did so, but he did not offer any testimony that Jane Doe 1 did so. And at the preliminary hearing, Jane Doe 1 never testified that she had touched defendant’s penis. Defendant’s conviction on count 7 thus violated the rule prohibiting prosecution “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, supra, 71 Cal.App.4th at pp. 165-166.)
This is not, however, the end of our inquiry. The People argue that defendant forfeited his right to assert this claim on appeal by failing to challenge the information or object at trial,[9] in claimed support of which they cite two cases: People v. Bartlett (1967) 256 Cal.App.2d 787 (Bartlett), and People v. Harris (1967) 67 Cal.2d 866, 870 (Harris). Neither supports a finding of forfeiture in the setting here.
Defendants in Bartlett were charged with two counts of burglary and, following a preliminary examination, were held to answer on those two counts. The district attorney then filed an information charging defendants with a third burglary count as well. Defendants moved under section 995 for dismissal of the information, and the two counts on which they were originally held were dismissed for lack of probable cause. They then sought a writ of prohibition to bar further proceedings on the third count, on the grounds that there was no evidence of corpus delicti and no probable cause. The writ was denied, and defendants were tried and convicted on the third count. (Bartlett, supra, 256 Cal.App.2d at p. 789.)
As pertinent here, on appeal defendants asserted that their convictions must be reversed because the offense for which they were convicted was not included in the commitment order. (Bartlett, supra, 256 Cal.App.2d at pp. 788-789.) The Court of Appeal disagreed that reversal was warranted on that ground.[10] (Id. at pp. 791-792.) First, the court noted that section 739 permitted the district attorney to file an information charging defendants with the offenses designated in the commitment order “ ‘or any offense or offenses shown by the evidence taken before the magistrate to have been committed. . . .’ ” (Id. at p. 790.) It then observed that “section 739 has been construed as authorizing the inclusion of an offense not designated in the commitment order but shown by the preliminary examination to have been committed by defendant if such added offense is related to or connected with the crime or crimes designated in the commitment order.” (Id. at p. 791.) The court then concluded, however, that the third burglary count was improperly added because it was insufficiently related to or connected with the burglary counts designated in the commitment order. (Id. at pp. 791-792.)
Despite this error, the Court of Appeal did not reverse on this ground, stating that “by going to the trial without raising the point [defendants] have waived it.” (Bartlett, supra, 256 Cal.App.2d at p. 792.) The court explained that section 996 requires defendant to bring a motion “under section 995 to dismiss an information charging an offense other than the one designated in the commitment order,” or be held to have waived such objection. (Ibid.) It noted that defendants did move under section 995 to dismiss the information and sought a writ of prohibition, but neither time did they contend that they were improperly committed on the third count. Consequently, “[t]he failure to raise that issue in those proceedings constituted a waiver.” (Ibid.)
Harris, supra, 67 Cal.2d 866, the second case on which the People rely, is similar. There, defendants Harris and Peart were charged with two counts of first degree robbery. At the preliminary hearing, Peart was represented by counsel while Harris appeared in propria persona. Following a jury trial, defendants were convicted on both counts and sentenced to state prison. (Id. at pp. 867-868.) On appeal, the court considered “whether failure to provide counsel at the preliminary hearing require[d] reversal of the ensuing judgment of conviction when the defendant did not move under section 995 of the Penal Code to set aside the information.” (Harris, at p. 868) and concluded that Harris’s failure to present a timely challenge to the information barred him from asserting the issue on appeal (Ibid.). The court relied on section 996, which “bars the defense from questioning on appeal any irregularity in the preliminary examination” when it has failed to move to set aside the information under section 995, holding that “to permit a defendant to question the legality of his commitment for the first time on appeal would enable him to secure a reversal of his judgment of conviction even though he was found guilty after an errorless trial.” (Harris, at p. 870.)
The People argue that defendant forfeited this argument by failing to challenge the addition of count 7 by a section 995 motion or objecting at trial or sentencing, likening defendant to the unsuccessful appellants in Bartlett and Harris. But here defendant could not reasonably have been expected to raise an objection below—and a section 995 motion would not have been successful. Defendant correctly explains why: “Count 7 alleged that appellant ‘did willfully, unlawfully, and lewdly commit a lewd and lascivious act upon and with the body and certain part and members thereof of Jane Doe #1.’ [Citation.] Testimony before the magistrate showed that appellant had orally copulated Jane Doe 1 on that date [citation] and touched her vagina [citation]. Either of these acts supported the charge made in Count 7. Accordingly, no motion to dismiss under Penal Code section 995 could have succeeded.”
It was only at trial, when the prosecutor argued that count 7 was based on Jane Doe 1’s touching of defendant’s penis, that count 7 became unsupported by evidence presented at the preliminary hearing. Given that the preliminary hearing occurred on August 15, 2007, and the prosecutor gave her closing argument on November 20, 2008, it would be unreasonable to expect defense counsel to object to the prosecutor’s election of a crime shown by the evidence at trial on the ground that it had not been shown at the preliminary hearing 15 months prior. Defendant cannot be held to have forfeited this claim, and his conviction on count 7 must be reversed.[11]



TO BE CONTINUED AS PART II….


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