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Name: People v. Fernandez
Case #: B236009
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 05/20/2013
Summary

Where a defendant has a reasonable opportunity to prepare and present a defense and is not taken by surprise by evidence offered at trial, the court may permit amendment of the accusatory pleading up to and including the close of trial. Appellant was found guilty of lewd acts on a child, continual sexual abuse, and oral copulation or sexual penetration of a child under the age of 10. An allegation that the crimes involved more than one victim was found true. At the end of the prosecution’s case, without objection, the court granted a motion to amend the information to include an extended date range and to distinguish other dates. Prosecution of child molestation charges based on generic testimony does not alone result in a denial of the right to fair notice of the charges. The function of the accusatory pleading in such cases is to give notice of the nature of the offense charged and whether it occurred within the applicable limitation period. The granting of motion to amend must be objected to at trial to preserve the issue for appeal. Here, because there was no objection, the court found that any error as to the granting of the motion was forfeited.

The court found no error with the use of modified CALCRIM No.3501 rather than CALCRIM No. 3501 [unanimity instructions]. When there is no reasonable likelihood of juror disagreement as to particular acts and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim. (People v. Jones (1990) 51 Cal.3d 294, 322.)