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Name: People v. Graff
Case #: B203935
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 01/20/2009

Appellant was improperly convicted on charges not established at the preliminary hearing. Appellant was charged with seven violations of Penal Code section 288 involving his daughter. At the preliminary hearing, the daughter testified that appellant asked to see her breasts and watched her masturbate. The court dismissed the counts related to those acts because the dates alleged were vague. The information filed conformed to the magistrate’s rulings. However, at trial, the prosecutor argued those acts as evidence of the charges. A motion for mistrial was denied, and the jury convicted. On appeal, appellant contended that his convictions on the two counts had to be reversed because they were based on charges not established at the preliminary hearing. The appellate court agreed and reversed. The magistrate properly dismissed the counts based on the masturbation incidents because the victim’s testimony was vague. The prosecutor then repeatedly encouraged the jury to convict based on any of the incidents described by the victim, including those incidents. The prosecutor did not and could not have amended the information to add charges based on those incidents. Appellant was prejudiced by the failure of the prosecution to make its theory clear prior to its closing argument. Since the court cannot presume that the verdicts were based on the properly prosecuted charges, reversal was required on those two counts.