The trial court did not abuse its discretion by allowing the information to be amended during trial to correct a clerical error in a prior amendment which restored allegations in the original charging document. Appellant was charged with nine sex offenses, and a multiple-victim allegation under section 667.61, subdivision (e)(5) per count. Before trial, the prosecutor amended the information by dismissing one count, and charging the multiple-victim allegation only in conjunction with count one. At trial, the court granted the prosecutor’s motion to amend the information a second time to attach the section 667.61 allegation as to each count, as was originally charged. Appellant argued it was an abuse of discretion and a denial of due process to allow the second amendment. The Court of Appeal affirmed, agreeing with the trial court that the second amendment simply corrected a clerical error in the first amendment and that appellant always had notice of the allegation. The court found People v. Mancebo (2002) 27 Cal.4th 735 and People v. Smart (2006) 145 Cal.App.4th 1216, distinguishable because in those cases the enhancements had never been alleged.
The defendant bears the burden of showing prejudice resulting from a misadvisement regarding the potential maximum sentence regardless of whether it is the trial court, the prosecutor, or defense counsel who provides the erroneous advice. The trial court and prosecutor had told appellant he faced a maximum sentence of 60 years to life if he went to trial, but, in fact, the maximum exposure was 120 years to life. Relying on People v. Goodwillie (2007) 147 Cal.App.4th 695, appellant argued the misadvisement violated his federal due process rights. Assuming arguendo such a misadvisement would result in a due process violation, the Court of Appeal held Goodwillie was wrong in placing the burden on the prosecution to establish lack of prejudice. The burden of showing prejudice from misadvisal of the penal consequences of a plea lies with the defendant regardless of who provides the wrong advise for three reasons. First, when seeking reversal of a conviction, it is generally the appellant who must show the error was prejudicial. Second, it is logical to place the burden on the defendant because only the defendant knows whether he or she would have otherwise accepted the plea. And third, “[i]t would be anomalous to place the burden on defendant in ineffective-counsel cases, but on the People in other cases of misadvisement.” Here, appellant does not meet his burden.