People v. Chaves CA1/2

Filed 2/25/16 P. v. Chaves CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, A144066 v. JESUS SANCHEZ CHAVES, (Sonoma County Super. Ct. No. SCR638272) Defendant and Appellant.

A jury found defendant Jesus Sanchez Chaves guilty of six sex-related offenses and various accompanying enhancements, for which he was sentenced to state prison for an aggregate term of 69 years to life. On this timely appeal, defendant advances two contentions which challenge only one of the convictions, namely, that for violating subdivision (b) of Penal Code section 288 (section 288), by forcibly committing a lewd or lascivious act upon a child under the age of 14. Defendant’s first contention is that the trial court abused its discretion by allowing amendment during trial of the section 288 charge from non-forcible to forcible. His second contention is that, having allowed the amendment, the trial court was required to instruct on the lesser included offense of the non-forcible violation of section 288. Following a two-day preliminary examination, defendant was ordered held to answer on the six charges specified in the criminal complaint. There was one difference between the charges in the complaint and the charges found by the magistrate. In count II of the complaint it was alleged that defendant “did, in the County of Sonoma, State of California, on or about the 11th day of August 2013, violate Section 288(b)(1) of

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the PENAL CODE, a felony, in that He did willfully, unlawfully, and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of JANE DOE . . . , a child under the age of fourteen years, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said defendant and the said child, by use of force, violence, duress, menace, and threat of great bodily harm.” (Bold type omitted.) The magistrate (Hon. Gary Medvigy), however, concluded “there was no testimony as to any force,” and so found the charge was “288a, non- forcible lewd and lascivious touching of the child under the age of 14.” Count II as alleged in the ensuing information was for a violation of section 288, subdivision (a), without the element of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury” justifying the greater penalties of subdivision (b).1 At the close of its case-in-chief, the prosecution made an oral motion to amend count II of the information to conform to proof to allege the forcible violation of section 288. After the defense had rested, and without objection from the defense, Judge Medvigy granted the prosecution’s motion to amend the information to allege a violation of subdivision (b) of section 288. Defendant contends the amendment was procedurally improper under Penal Code section 1009 because it was made in the face of the magistrate’s finding that no evidence of force was shown by the evidence at the preliminary examination. He also contends it violated his due process right to notice of the charges he would confront at trial. Finally, if his trial counsel’s failure to raise these points works a forfeiture of his right to have the