As Rubalcaba does not challenge the sufficiency of the evidence to support his convictions, we set forth the facts relating only to his crimes against C.M. to provide context for his contention that we should reverse his count 3 conviction because the court improperly amended the information.
C.M. was 29 years old at the time of trial, and testified that as a minor he lived in El Nido, California, across the street from his best friend, whose father was Rubalcaba. Starting when C.M. was 12 years old, Rubalcaba touched C.M. inappropriately more than five times, including touching C.M.’s buttocks and penis when C.M. slept over at Rubalcaba’s house. Rubalcaba used to let C.M. sit in his lap and drive Rubalcaba’s car. On one such occasion, when C.M. was 12 years old, Rubalcaba touched C.M.’s chest and stomach under his clothes. On another occasion, Rubalcaba took him to pick grapes and told him to suck Rubalcaba’s penis, and C.M. did so briefly. C.M. moved to San Francisco when he was 12 years old.
Motion to Amend the Information
At the end of the People’s case-in chief, the prosecutor moved to amend the information to conform to proof. Specifically, she sought to expand by two years the date range of Rubalcaba’s offenses against C.M.; that is, from the originally stated period of October 25, 1997, through October 24, 2000, to a new end date of October 24, 2002. She argued: “In sexual assault cases, particularly sexual assault cases of minors, it is not uncommon . . . that we have to amend [the information] to reflect what their sworn testimony is because these events occurred so long ago.”
Defense counsel objected that the proposed amendment “cover[ed] a longer period of time than what was alleged in . . . the first amended complaint deemed information.” He added that “changing the dates is a last-ditch effort by the prosecution to bolster the credibility of witnesses whose testimony was at best bumpy and nonspecific.” He also objected that the court would deprive him of an opportunity to further cross-examine the victims regarding their prior inconsistent preliminary
