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Name: People v. Arevalo-Iraheta
Case #: E050247
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 04/05/2011

There is no due process violation where an information is amended during trial to allege a lesser included offense and there is no prejudice to appellant from the amendment. Appellant was charged with five counts of aggravated sexual assault on a child under the age of 14 years. Prior to the close of the prosecution’s case, the court granted the prosecutor’s motion to add five counts of Penal Code section 288, subdivision (a) (lewd and lascivious acts on a child under 14 years). The jury convicted appellant on the five counts but deadlocked on the original aggravated sexual assault counts. Appellant’s defense was that the 13-year-old victim initiated the conduct and he submitted because the girl threatened to go to the police if he refused. On appeal, appellant claimed the trial court erred in granting the prosecution’s motion to amend because he was not put on notice of the new charges and did not have the opportunity to prepare a defense to them. The appellate court disagreed. The purpose of the pleading is to provide notice to defendant of the charges so he can prepare for trial. When a particular offense is alleged, it demonstrates the prosecution’s intent to prove all the elements of any lesser necessarily include offense. Thus, for due process purposes, the stated charge informs defendant that he must also be prepared to defend against a lesser included offense even if it is not expressly charged. Here, a preliminary hearing was held where the prosecution presented evidence of the elements of the lesser included charges. Therefore, appellant could not credibly claim surprise. Appellant also contended that the court committed misconduct by addressing appellant’s Penal Code section 1118.1 motion for dismissal in front of the jury. The court rejected the contention, noting that although a court should issue a ruling on such a motion outside the presence of a jury, here there was no prejudcie as the court made only minimal commentary regarding the motion and because appellant on direct examination had confessed to the crimes of which he was convicted.