People v. Flippin CA1/3

Filed 10/27/15 P. v. Flippin CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A139437
v.
ROBIN ANDRE FLIPPIN, (Solano County
Super. Ct. No. VCR214418)
Defendant and Appellant.
This is an appeal from judgment after a jury convicted defendant Robin Andre
Flippin of assault with a firearm (count one) and false imprisonment by violence or
menace (count two), enhanced for his personal use of a firearm (both counts) and
infliction of great bodily injury (count one). Defendant challenges this judgment on
grounds that include prosecutorial misconduct, ineffective assistance of counsel, belated
amendment of the information to allege personal use of a firearm as to count two without
adequate notice, and insufficiency of the evidence to prove this enhancement as to count
two. For reasons discussed below, we conclude the trial court prejudicially erred when
permitting amendment of the information after the close of evidence to allege personal
use of firearm as to count two. Accordingly, we reverse the finding that defendant
personally used a firearm during commission of count two. In all other regards, however,
we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 4, 2012, an information was filed charging defendant with assault with
a firearm (Pen. Code, § 245, subd. (a)(2)) (count one), and false imprisonment by
1
violence or menace (Pen. Code, § 236) (count two). Several enhancements were also
alleged, including that defendant personally used a firearm, to wit, a revolver (Pen. Code,
§ 12022.5), personally inflicted great bodily injury upon the victim (Pen. Code,
§ 12022.7, subd. (a)), and had two prior strikes within the meaning of section 667,
subdivision (a)(1), and a prior strike within the meaning of sections 1170.12, subdivisions
(a)-(d) and 667, subdivisions (b)-(i).
Trial began on May 14, 2013, and revealed the following evidence.
I. The Prosecution’s Case.
In the late evening of March 11, 2012, the victim was in Walnut Creek with his
mother, who had recently been released from the hospital. At about midnight, the victim
received a call from Valerie Brown-Flippin, defendant’s wife.1 Brown-Flippin owned a
house on Miller Street in Vallejo where the victim and his wife had rented a room since
September 2011, although they had recently announced their intention to move
elsewhere. 2 Brown-Flippin told the victim his belongings were being thrown out of the
house, and that he should return immediately if he wanted to salvage them. The victim
thus drove to the Miller Street house, arriving between 1:00 a.m. and 2:00 a.m.
Upon entering the house, the victim saw defendant, but not Brown-Flippin. The
victim, upset to see his property strewn throughout the house, began making a video
recording of the incident with his cell phone. The victim told defendant that he did not
want to speak to him, as his rental agreement was with Brown-Flippin. Defendant then
called Brown-Flippin, who arrived in less than 10 minutes and entered into the living
room, where she found the two men. The victim told Brown-Flippin that it was the
middle of the night and she could not evict him, as he had no other place to live. Brown-
1
Brown-Flippin and defendant separated in January 2012.
2
Brown-Flippin lived in another house in Vallejo that she owned on Grennan
Street, but frequently visited her Miller Street house. Her brother, Kevin Dixon, lived
with his girlfriend in the Miller Street house. Pursuant to an oral contract, the victim
agreed to pay Dixon weekly rent of $100, which went to Brown-Flippin, and to help
Dixon with various home improvement projects, including a kitchen remodel.
2
Flippin replied that she could indeed evict him because he had not paid rent. At this
point, defendant suddenly hit the victim in the head with a pistol, which the victim
believed was a .38 caliber revolver. The victim, losing balance and dropping his phone,
fell to the ground, where defendant got on top of him and continued to hit him with the
pistol about 10 to 15 times in the face, mouth and elsewhere. During this attack, both
Brown-Flippin and the victim repeatedly yelled at defendant to stop.
Finally, defendant did stop, and the victim got up, retrieved his phone and tried to
leave through the front door. Defendant, however, snatched the phone and took the
victim by the collar, leading him outside the house to the victim’s car. Despite Brown-
Flippin’s calls for his release, defendant shoved the victim into the car through the
passenger-side door and commanded him to move to the driver’s seat. When the victim
tried to put his keys into the ignition, defendant grabbed them. Brown-Flippin asked
defendant what he was doing, to which defendant responded that he had to “finish this.”
The victim believed defendant intended to kill him, and so stayed in the car without
attempting to flee.
The victim ultimately remained in the car about 30 minutes, while both he and
Brown-Flippin tried to convince defendant to release him. The victim, pleading,
repeatedly stated that he would not call the police, as he had been beaten before and
could handle it. He also told defendant that he had been wrong and “had it coming,” and
promised to return the next day to collect his belongings. Finally, defendant freed the
victim, who drove to a camper he kept in a nearby storage yard. Once there, he examined
his injuries and called his wife, who picked him up and drove him to the hospital.
The victim, bloody and bruised with a missing tooth, required 14 facial stitches at
the hospital. Police Officer Sean Kenney photographed his injuries at the hospital. The
victim initially declined to volunteer any information about his injuries because he feared
retaliation from defendant. However, eventually, the victim named defendant as his
attacker, and also provided the name “Victoria Flippin.” The victim did not give Officer
Kenney an exact address for defendant, and said he had lived for about six months at the
Miller Street house, but that he was no longer there because of problems. The victim,
3
who was on probation at the time, told the officer he had been beaten before, and would
likely be beaten again, but declined to give further details about his attack.
The next day, the victim and his wife returned to the Miller Street house for his
belongings. He did not tell the police of his return, or ask for any assistance.
During testimony, the victim described having a strained relationship with
defendant even prior to this incident. About a month after the victim moved into the
Miller Street house, defendant pointed a gun at the victim and a friend while they were
talking at the sidewalk. According to the victim, during this confrontation defendant
mouthed the words, “bang bang,” before going around the corner and firing the gun. The
victim had no idea what had triggered defendant’s behavior. However, about a month
later, the victim obtained a restraining order against defendant. This restraining order
said nothing about defendant pointing a gun at the victim, or discharging it.
II. The Defense Case.
Brown-Flippin’s testimony conflicted with the victim’s testimony in several
regards. She denied having negotiated an agreement or accepted rent from the victim,
insisting his agreement was with Dixon, to whom he paid rent. Brown-Flippin added that
she was quite unhappy with the state of her Miller Street house and wanted everyone,
including Dixon, to move out.
Brown-Flippin also denied calling the victim on the night in question to tell him to
come over immediately to salvage his property. She did not witness defendant harming
the victim; nor did she witness defendant shove the victim into his car or hear him say he
needed to finish what he had started.
Cynthia Browning, a Vallejo attorney, testified that, in March 2012, she was
dating defendant, whom she had met online in April 2011 when he responded to a
personal advertisement. During this time period, defendant generally stayed with
Browning at her house from Sunday to Wednesday. Defendant was at Browning’s house
the entire night of March 11, 2012, a fact she never told police, but revealed to a defense
investigator for the first time shortly before defendant’s trial. Browning did not know
defendant was married until April 2012, when he reconciled with his wife.
4
Defendant, testifying in his own defense, acknowledged permitting the victim to
stay in the Miller Street house temporarily to work on kitchen plumbing problems.
However, friction developed between the men over the condition of the house.
Neighbors complained that scrap metal had been left in the yard, a carpet had burn marks,
and a window had been painted over. The victim moved out in January 2012, although
some of his property remained longer.
On the night in question, defendant was at Browning’s house. At no point did he
contact the victim, pistol-whip him, take his keys or refuse to let him leave.
III. The Verdict, Sentencing and Appeal.
On May 22, 2013, the jury found defendant guilty on both counts, and found true
the great bodily injury allegation as to count one and the personal use of a firearm
allegations as to both counts. After defendant waived the right to a jury trial on the prior
strike allegations, the trial court found true one prior strike. The court then sentenced
defendant to a total prison term of 15 years. Specifically, with respect to count one, the
court imposed the 3-year midterm, plus 5 years for the prior strike, 4 years for the firearm
enhancement, and 3 years for the great bodily injury [GBI] enhancement, to be served
consecutively. With respect to count two, the court imposed the 2-year midterm, plus 4
years for the firearm enhancement, to run concurrently. The court then stayed this
sentence on count two per section 654. The timely appeal followed.
DISCUSSION
Defendant raises four primary issues on appeal. First, defendant contends the
prosecutor committed prejudicial misconduct when arguing to the jury the presumption
of innocence had been “stripped away” in this case. Second, defendant contends that,
should this court conclude he has forfeited the issue of prosecutorial misconduct, we
should deem his attorney’s failure to object to the purported misconduct to be
constitutionally ineffective assistance of counsel. Third, defendant contends the jury’s
finding that he personally used a firearm within the meaning of section 12022.5 during
the commission of count two (false imprisonment) lacks the support of substantial
5
evidence. Lastly, and alternatively, defendant contends the trial court committed
prejudicial error when granting the prosecution’s request to amend the information after
the close of evidence. We address these issues in turn below.
I. Prosecutorial Misconduct.
The governing legal standards are well-established. “A prosecutor’s conduct
violates the Fourteenth Amendment to the federal Constitution when it infects the trial
with such unfairness as to make the conviction a denial of due process. Conduct by a
prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the jury.” (People v. Morales
(2001) 25 Cal.4th 34, 44 (Morales). See also People v. Samayoa (1997) 15 Cal.4th 795,
841 [federal Constitution violated where prosecutorial misconduct is “so egregious that it
infects the trial with such unfairness as to make the conviction a denial of due process”].)
Under these standards, “ ‘ “ ‘a prosecutor is given wide latitude during argument. The
argument may be vigorous as long as it amounts to fair comment on the evidence, which
can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]’ . . .
‘A prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian
politeness’ ” [citation], and he may “use appropriate epithets . . . .” ’ ” [Citation.]’
[Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819.) When the alleged prosecutorial
misconduct stems from the prosecutor’s remarks or comments made before the jury, “the
question is whether there is a reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.” (Morales, supra, 25 Cal.4th
at p. 44.)
To preserve a claim of prosecutorial misconduct for appeal, the defendant is
generally required to make a timely objection at trial, as well as a “request[] that the jury
be admonished to disregard the perceived impropriety.” (People v. Thornton (2007) 41
Cal.4th 391, 454.) However, courts have excused defense counsel’s failure to timely
object or to request a curative admonition under circumstances where such action by
6
counsel would have been futile. (People v. Hill, supra, 17 Cal.4th at p. 820; see also
People v. Lucas (1995) 12 Cal.4th 415, 457.)
Where a claim is preserved or failure to object is excused and prosecutorial
misconduct is found, the question becomes whether such misconduct was prejudicial, that
is, whether it is reasonably probable a result more favorable to the defendant would have
occurred if the prosecutor had refrained from the misconduct. (People v. Haskett (1982)
30 Cal.3d 841, 866.) Prosecutorial misconduct requires reversal under federal law unless
the misconduct was harmless beyond a reasonable doubt. (People v. Cook (2006) 39
Cal.4th 566, 608.)
Here, defendant acknowledges his failure to object or request an admonition to
cure any harm from the purported prosecutorial misconduct. Defendant asks, however,
that we exercise our discretion to address this claim, arguing that the prosecutor misstated
the law with respect to the People’s burden to prove his guilt beyond a reasonable doubt,
and thereby violated his constitutional right to due process. Defendant’s contention is
based upon the following comments by the prosecutor during closing arguments, which
we set forth below in proper context:
“Last week, as the defendant sat there, he was cloaked with the presumption of
innocence, and that’s fair. That’s the law. That’s reasonable, but it’s our position that
with every word of testimony, with every photograph, that presumption of innocence has
been stripped away, and as the defendant sits there now, he’s guilty with everything with
which he’s been charged, because the only person’s testimony that could be corroborated
with actual evidence is [the victim’s]. [The victim’s] photographs and his testimony.
“Now, I get to talk to you twice, and I’m not going to talk to you a long time,
because, bottom line, if you believe [the victim] the defendant is guilty with everything
he has been charged with, but I want to briefly go over why. And then after [defense
counsel] speaks, I get to talk to you again because the burden of proof is on the People,
but I promise both will be short.
“Now, the Judge read you the instruction and you’re going to have the instructions
with you, but I wanted to explain what the facts have shown.” (Italics added.)
7
Having considered the record, even were we to excuse defendant’s admitted
forfeiture of this issue, we would nonetheless find no prosecutorial misconduct. While
we agree with defendant that the presumption of innocence is a core component of our
criminal justice system (Estelle v. Williams (1976) 425 U.S. 501, 503), and that “the
presumption of innocence continues not only during the taking of the testimony, but
during the deliberations of the jury and until they reach a verdict” (People v. Arlington
(1900) 131 Cal. 231, 235), we disagree that these principles were undermined in this
case. “ ‘ “[A] prosecutor is given wide latitude during argument. The argument may be
vigorous as long as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom.” ’ ” (People v. Ward (2005)
36 Cal.4th 186, 215.)
Here, the prosecutor’s argument that the “presumption of innocence has been
stripped away” was made in the course of his broader argument that “[the People’s]
position” is that the evidence, considered as a whole, established defendant’s guilt
beyond a reasonable doubt. In so arguing, however, the prosecutor reminded the jury that
the trial court would read the instructions, which the jury must follow, before
emphasizing that his plan was to “explain what the facts have shown.” As the California
Supreme Court has repeatedly made clear: “[The prosecutor] has the right to fully state
his views as to what the evidence shows and to urge whatever conclusions he deems
proper.” (People v. Lewis (1990) 50 Cal.3d 262, 283; People v. Panah (2005) 35 Cal.4th
395, 463 [finding nothing improper in the prosecutor’s statement in closing arguments
that the prosecution’s evidence had “stripped away” the defendant’s presumption of
innocence]. Cf. People v. Dowdell (2014) 227 Cal.App.4th 1388, 1407-1408 [noting
that, while the prosecutor’s initial comment that the “presumption of innocence is over,”
prefaced by a reference to the overwhelming evidence of guilt, was arguably permissible
under Panah, the prosecutor subsequently committed misconduct when “[he] repeated
8
the misstatement, together with the assertions that it was ‘fairly obvious’ [defendant] was
guilty, and most critically, ‘He has gotten his fair trial’ ”].)3
Finally, in reaching this conclusion, we point out that the trial court clearly
instructed the jury that defendant, like all criminal defendants, must be presumed
innocent unless or until the prosecution proves him guilty beyond a reasonable doubt, and
that nothing the attorneys say is evidence. We, of course, presume the jury followed
these instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331; accord People v.
Goldberg (1984) 161 Cal.App.3d 170, 189-190 [“Once an otherwise properly instructed
jury is told that the presumption of innocence obtains until guilt is proven, it is obvious
that the jury cannot find the defendant guilty until and unless they, as the fact-finding
body, conclude guilt was proven beyond a reasonable doubt”].) As such, even assuming
for the sake of argument the prosecutor’s remark could be deemed improper, on this
record, and in the absence of any other allegedly improper remark or conduct by the
prosecutor, there is no reasonable likelihood “the jury construed or applied any of the
complained-of remarks in an objectionable fashion.” (Morales, supra, 25 Cal.4th at
p. 44.) Defendant’s challenge thus fails.
II. Ineffective Assistance from Counsel.
Next, our rejection of defendant’s claim of prosecutorial misconduct also
undermines his second contention – to wit, that his attorney rendered ineffective
assistance by failing to object to the prosecutor’s remark that the presumption of evidence
had been “stripped away.”
To prevail on a claim of ineffective assistance of counsel, the defendant must
prove more than a failure by counsel to raise a particular objection or undertake a
particular strategy; rather, “defendant must show counsel’s performance fell below a
3
In People v. Dowdell, defendant’s authority, the reviewing court ultimately found
the defendant’s claim of prosecutorial misconduct had been forfeited given his failure to
raise a timely objection to the challenged statements in the trial court. (227 Cal.App.4th
at p. 1408.) Likewise, in this case, as stated above, even if we could deem the
prosecutor’s comment improper (we do not), defendant has forfeited any claim of
prejudicial error.
9
standard of reasonable competence, and that prejudice resulted.” (People v. Anderson
(2001) 25 Cal.4th 543, 569.) Here, given our conclusion that no prosecutorial
misconduct occurred, there is no valid basis for accepting defendant’s related claim that
his attorney’s failure to raise a prosecutorial misconduct objection amounted to
“prejudicially ineffective representation.” (See People v. Burnett (1999) 71 Cal.App.4th
151, 180 [to prevail on a claim of ineffective assistance from counsel, defendant must
overcome a strong presumption that counsel’s conduct was sound trial strategy or
otherwise within the wide range of reasonable professional assistance].)
III. Untimely Amendment of the Information.
Defendant next argues the trial court prejudicially erred by permitting an
amendment to the information after close of evidence to allege his personal use of a
firearm during the false imprisonment offense within the meaning of section 12022.5,
subdivision (a) (hereinafter referred to as “section 12022.5(a)”).4 The relevant record is
as follows.
The information, as filed on October 4, 2012, set forth count one, assault with a
firearm, followed by the further allegation that defendant personally used a firearm (to
wit, a revolver) within the meaning of section 12022.5(a), among other special
allegations. Below count one, the information set forth under a separate heading count
two, false imprisonment by violence or menace, without restating the special allegation
under section 12022.5(a) that defendant personally used a firearm. There was mentioned
after count two, however, a different allegation that defendant was not eligible to be
sentenced to a term of imprisonment in county jail due to a prior or current felony
conviction for a serious or violent felony. (See §§ 1170, subds. (h)(3), (f); § 1385;
§ 1192.7; § 667.5).
4
Section 12022.5(a) provides: “Except as provided in subdivision (b), any person
who personally uses a firearm in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment in the state prison for 3,
4, or 10 years, unless use of a firearm is an element of that offense.”
10
At trial, the victim testified with respect to count one that defendant attacked him
in the living room, hitting him repeatedly in the head and face with revolver, while he
attempted to cover his head to protect himself. The victim then testified that, after
defendant stopped this attack, he tried to flee outside, but defendant grabbed him by the
collar to prevent him from leaving. At this point, defendant “more or less escorted [the
victim]” to his car, opened the door, and “threw [him] in.” The victim made no further
mention of defendant’s possession – much less display or use – of the gun other than to
explain that he did not try to flee because he “knew [defendant] had a gun.”
On May 21, 2013, after the close of evidence and during the settling of the jury
instructions, the trial court asked the prosecutor whether it was the People’s intent to
allege the personal use enhancement as to both counts, or only as to count one. The
prosecutor responded both counts. Defense counsel, in turn, objected, noting that the
personal use enhancement was only mentioned in the information after count one was set
forth, and was not repeated after count two, which was set forth in another section, such
that he was not on notice that personal use of a firearm was being alleged as to count two.
Instead, count two, false imprisonment, was alleged to have been committed by “violence
or menace,” not by firearm use.
The trial court disagreed, finding that defendant’s alleged personal use of a firearm
was a “continuous act” in the course of his commission of both offenses, such that it was
proper to instruct the jury on the allegation in connection with both counts. In reaching
this conclusion, the trial court noted that, in the information, the firearm allegation was
“not limited in the way it’s charged” to count one. As such, the trial court found, “in
terms of notice, there’s sufficient notice.”
However, as the trial court subsequently instructed the jury, the personal use
enhancement requires more than a finding that the false imprisonment occurred by
violence or menace:
“If you find the defendant guilty of the crimes charged in Counts One or Two, you
must then decide whether, for each crime, the People have proved the additional
allegation that the defendant personally used a firearm during the commission of that
11
crime. You must decide whether the People have proved this allegation for each crime
and return a separate finding for each crime. [¶] . . . [¶]
“ Someone personally uses a firearm if he or she intentionally does any of the
following:
1. Displays the weapon in a menacing manner;
2. Hits someone with the weapon; [¶] OR [¶]
3. Fires the weapon. . . .”
Yet, despite these legal requirements, the prosecutor, during trial, neither elicited
from the victim or defendant that defendant displayed, hit the victim with or fired the
weapon once the men left the house for the car, nor mentioned any such firearm use by
defendant when arguing to the jury with respect to the evidence supporting count two.
Rather, the prosecutor argued that defendant “made [the victim] stay in the car against his
will,” and “[t]hat’s by violence. That’s by menace.”5 This contrasts sharply with the
prosecutor’s argument with respect to count one, where he specifically applied the
evidence to the law under section 12022.5(a): “[L]ast, you determine whether or not
defendant had the firearm and he used it. And he did; he hit [the victim] with the firearm.
[The victim] was able to describe the weapon.”
During deliberations, the jury sent a question to the trial court relating to the
personal use enhancement, which stated: “Please clarify the combination of ‘Assault’
and ‘with a firearm’ in Count 1. Since Count 1 includes ‘with a firearm,’ how can we
conclude ‘guilty’ for Count 1, but ‘not guilty’ for the secondary question? (i.e.
‘personally used a firearm’).” The trial court, after discussing the matter with counsel,
responded in relevant part: “The allegation of Personal Use of a Firearm During the
Commission of a Crime in violation of Penal Code Section 12022.5 is a separate and
distinct allegation from Count One. You must independently determine whether all of
the elements of the allegation . . . . have been met as set forth in jury instruction no.
5
The prosecutor specifically argued: “[The victim] didn’t put up with a fight. [The
victim] knew he had just been pistol whipped by the defendant. He heard the defendant
tell his wife, I’ve got to finish what I started. That’s by violence. That’s by menace.”
12
3146.” The jury thereafter concluded its deliberations and returned a verdict of guilty on
all counts, finding true all enhancements.
On appeal, defendant contends the trial court’s decision to permit the belated
amendment of the information to allege personal use of a firearm as to count two was
prejudicial error for two reasons. First, defendant contends he lacked adequate notice of
the allegation, such that he was unable to cross-examine the victim regarding defendant’s
use or nonuse of the firearm during commission of the false imprisonment offense.
Second, defendant adds that, because the prosecutor also failed to question him about the
presence of the gun during count two, his personal use of the firearm within the meaning
of section 12022.5 was never established. We agree.
“Due process requires that ‘an accused be advised of the charges against him so
that he has a reasonable opportunity to prepare and present his defense and not be taken
by surprise by evidence offered at his trial.’ (People v. Jones (1990) 51 Cal.3d 294, 317
[270 Cal.Rptr. 611, 792 P.2d 643].) Thus, it is the rule that ‘a defendant may not be
prosecuted for an offense not shown by the evidence at the preliminary hearing or arising
out of the transaction upon which the commitment was based.’ (People v. Burnett (1999)
71 Cal.App.4th 151, 165-166 [83 Cal.Rptr.2d 629] (Burnett); see Cal. Const., art. I, s 14
[‘Felonies shall be prosecuted as provided by law, either by indictment or, after
examination and commitment by a magistrate, by information’].)” (People v. Graff
(2009) 170 Cal.App.4th 345, 360.)
Consistent with this rule, “[t]he court may allow amendment of the accusatory
pleading to correct or make more specific the factual allegations of the offense charged at
any stage of the proceeding, up to and including the close of trial, if there would be no
prejudice to the defendant.” (People v. Graff, supra, 170 Cal.App.4th at p. 361, citing
section 1009.) “Under the case law interpreting section 1009, the test applied is whether
or not the amendment changes the offense charged to one not shown by the evidence
taken at the preliminary examination.” (People v. Spencer (1972) 22 Cal.App.3d.786,
799.)
13
According to defendant, in this case,“[t]he court’s ruling [to amend the
information and give the personal use instruction on count two] left defense counsel
unable to establish through cross-examination that appellant may not have still had the
gun, so the assumption led to a true finding without the prosecution having to prove that
[he] did have the gun and used it while [the victim] was in the car.” In light of the legal
principles set forth above, we agree with defendant the trial court’s ruling amounted to
prejudicial error. (See People v. George (1980) 109 Cal.App.3d 814, 819 [ruling to
amend the information reviewed for abuse of discretion].) Indeed, the “essential purpose
of an information is to inform the accused of the charge he is required to meet at the trial
so that he may prepare his defense.” (People v. Spencer, supra, 22 Cal.App.3d at p. 800.)
Here, defendant was not so informed. Rather, the information, reasonably read, limited
the personal use of a firearm allegation to count one. Moreover, at no time during the
presentation of evidence or attorney summation did the prosecution make clear to
defendant (or even suggest to him) that its theory was that he personally used a firearm
when falsely imprisoning the victim. To the contrary, the prosecution failed to make any
mention of defendant’s possession or use of a firearm once the men left the house, where
and when defendant forced the victim into his car and imprisoned him for at least a half
hour, aside from mentioning the victim’s lingering fear of the gun in light of the earlier
assault.6 As such, defense counsel had no reason to pin down the fact of defendant’s
nonuse or nondisplay of the firearm during this time period.
Moreover, in contrast to trial, the victim twice testified at the preliminary hearing
that he did not recall seeing defendant with the firearm after they left the living room
(where the assault was committed) and went outside to the victim’s car (where the false
imprisonment was committed). The victim also testified during the preliminary hearing
6
By comparison, when arguing with respect to count one, the prosecutor expressly
stated: “The personal use of a firearm – there was nobody else but the defendant there.
There was no one else with the firearm, except the defendant. [¶] So first you look at the
elements of assault with a firearm. Then you determine whether or not those injuries are
great bodily injuries, and, last, you determine whether or not the defendant had the
firearm and he used it. And he did; he hit [the victim] with the firearm.”
14
that defendant did not show him the gun while he remained in the car, even though he
“believed” defendant had the gun. Under California law, “a preliminary hearing
transcript affording notice of the time, place and circumstances of charged offenses ‘is
the touchstone of due process notice to a defendant.’ [Citation.]” (People v. Pitts (1990)
223 Cal.App.3d 606, 908; see also People v. Burnett, supra, 71 Cal.App.4th at pp. 165-
166.) In this case, as the record reflects, the preliminary hearing transcript provided no
such notice to defendant, with the result that the amendment to the information caused
him prejudice. (Cf. People v. Witt (1975) 53 Cal.App.3d 154, 166 [concluding
defendants were not prejudiced by late amendment of the information where “there were
no new legal issues created by the amendment, and there was in reality no dispute
whatsoever that [defendants] had testified in accordance with the new allegations”],
overruled in part on another ground in People v. Posey (2004) 32 Cal.4th 193, 205 fn. 5.)
In so concluding, we acknowledge the People’s argument that, “Nothing in the
language of section 12022.5(a) discloses a legislative intent to limit its application to
situations where the gun is pointed at the victim or the defendant issues explicit threats of
harm.” (People v. Granado (1996) 49 Cal.App.4th 317, 322.) However, in our case,
neither the victim nor defendant testified that defendant still had the gun after leaving the
house.7 Moreover, the victim testified that, once outside, defendant grabbed both his cell
phone and his keys, suggesting that defendant’s hands may have been free at that time.
Thus, it is perhaps true, as the People argue, that, “when a defendant deliberately shows a
gun, or otherwise makes its presence known, and there is no evidence to suggest any
7
The court in People v. Granado went on to explain: “ ‘ “Use” means, among other
things, “to carry out a purpose or action by means of,” to “make instrumental to an end or
process,” and to “apply to advantage.” (Webster’s New Internat. Dict. (3d ed. 1961).) The
obvious legislative intent to deter the use of firearms in the commission of the specified
felonies requires that “uses” be broadly construed.’ (People v. Chambers (1972) 7 Cal.3d
666, 672 [102 Cal.Rptr. 776, 498 P.2d 1024] (Chambers).) In other words, the term ‘use,’
as employed in this statute, should be broadly construed, consistent with common usage,
to check the magnified risk of serious injury which accompanies any deployment of a gun
in a criminal endeavor.” (People v. Granado, supra, 49 Cal.App.4th at p. 322 [fn.
omitted].)
15
purpose other than intimidating the victim (or others) so as to successfully complete the
underlying offense, the jury is entitled to find a facilitative use rather than an incidental or
inadvertent exposure.” (Granado, supra, 49 Cal.App.4th at p. 325.) However, this same
authority makes equally clear that “[t]he defense may freely urge the jury not to draw
such an inference, [even though] a failure to actually point the gun, or to issue explicit
threats of harm, does not entitle the defendant to a judicial exemption from section
12022.5(a).” (Ibid.[ italics added.]) Here, we conclude defendant was deprived of this
opportunity. Accordingly, we stand by our conclusion that the trial court abused its
discretion by permitting the information to be amended to add the allegation that
defendant personally used a firearm within the meaning of section 12022.5(a) during the
commission of false imprisonment.
Finally, given our conclusion that amendment of the information was prejudicial
error in this case, we need not address defendant’s alternative argument that the evidence
was insufficient to support his personal use of a firearm during commission of count two.
DISPOSITION
The finding that defendant personally used a firearm during commission of count
two is reversed and stricken from the judgment. In all other regards, the judgment is
affirmed.
_________________________
Jenkins, J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
16