Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC815346
Mihara, Acting P. J.
A jury convicted defendant of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and misdemeanor battery (§§ 242, 243, subd. (a)). The trial court suspended imposition of sentence and placed him on three years’ probation. His sole contention on appeal is that the trial court abused its discretion in granting the People’s motion to amend the information to allege assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). We affirm.
All further statutory references are to the Penal Code unless otherwise noted.
I. Factual and Procedural Background
Evidence at the preliminary examination disclosed the following facts. Defendant punched his former coworker in the face. The single blow from “[l]ess than one foot” away broke the victim’s nose and knocked him to the ground. The victim hit his head, lost consciousness, and was observed “shaking on the ground” while unconscious. An ambulance transported him to the hospital. Two photos taken there, one of his face and the other of the injury to the back of his head, were admitted into evidence. The victim missed eight days of work because he had two black eyes and “was all bruised and swollen.” He testified that his nose continued to bleed “and I couldn’t breathe.” The victim is 5’5” and 145 pounds. Defendant is “about five-ten, five-eleven” and “250, 260” pounds.
After the preliminary examination, the People filed an information alleging a single count of battery causing serious bodily injury (§§ 242, 243, subd. (d)) and specially alleging that the offense was a serious felony because defendant had personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)) on the victim. At a pretrial conference 20 days before the start of jury selection, the defense advised the court it had just learned the People were proposing to amend the information to add a charge of aggravated assault. The defense objected, “primarily on the grounds of lack of notice” and unfairness, noting that the force element required additional investigation. The defense stated that it had not discussed the force issue with medical experts and that it “might have to look into” a section 995 motion to dismiss.
The People countered that the proposed amendment conformed to proof. The prosecutor explained the reason for the delay, noted that 20 days remained before jury selection, and reminded the court that the defense had not yet subpoenaed its medical doctor. “It seems they are going to talk to him about the 242/243(d). Now they can talk to him about both [charges].”
Commenting that both parties had raised meritorious arguments, the court put the motion in abeyance, stating that it would grant an order shortening time so that a section 995 motion could be heard before jury selection. The court promised the defense it would “keep an open mind... by then the Court will assume that you’ve had the opportunity to speak to a physician. The court will keep an open mind with respect to that. Further, the Court will keep an open mind as to whether or not you need to call additional witnesses as a result -- [¶]... [¶] -- of the potential change. And the Court will hear what you have to say.... [¶] We will discuss it on December the 8th. I feel that fairness requires that the defendant have that additional time to look into things and also to talk to expert witnesses.”
The court rejected defense counsel’s argument that the amendment was motivated by vindictiveness: “I think what has happened is, as [the prosecution] has stated, that... she doesn’t have the seasoned thirty years experience that you do, and someone has probably said, why didn’t you do this? And you know, that makes perfect sense to me. [¶] And I appreciate that I’ve got the discretion, and I appreciate the arguments that you have made that this is a surprise. But... there is a fair number of days between now and then. Recognizing, of course, that there is a holiday in between, but still recognizing that there is time. And the Court will hear what you have to say. I’ll keep an open mind. So the Court’s going to defer the issue.”
The defense filed a section 995 motion to dismiss the new count. The People filed a combined brief in opposition to the section 995 motion and in support of the motion to amend. In that brief, the People stated that although the 20 days “would appear to be a reasonable postponement... [i]f the Defense seeks an additional postponement the People would not object.” The defense did not request an additional postponement.
Twenty days later, the trial court granted the motion to amend and denied the section 995 motion. The court ruled that evidence presented at the preliminary examination “placed the defense on notice that there might in fact be an amended information....” The court further ruled that it was “appreciative of [defense counsel’s] concern with respect to medical testimony and the Court has concern about hospital testimony and the Court has not been placed on notice with respect to any prejudice in that regard.” “Further, the Court is of the opinion that the additional time period from the last time we were here until today’s date has given the defense additional time to do follow-up investigation should that be necessary or deemed necessary by the defense. And further, the Court as suggested by the prosecution had an open mind if the defense needed additional time for purposes of investigation.” The court explained that although “it would have been more helpful to all concerned” had the information been amended earlier, section 1009 permits the People to propose amendment at any time. “For those reasons, the Court is of the opinion that the interest of justice is best served by allowing the filing of the amended information.”
The case proceeded to trial. The defense urged that a single punch is not likely to produce great bodily injury, that the punch in this case did not produce either “great” or “serious” bodily injury, and that defendant had in any event acted in self-defense. Cross-examination revealed numerous inconsistencies in defendant’s testimony, and he admitted he lied when he told police officers the victim had a knife in his hand and was thrusting it toward him. The jury convicted defendant of aggravated assault (§ 245, subd. (a)(1)) and misdemeanor battery (§§ 242, 243, subd. (a)). The trial court suspended imposition of sentence, and placed him on three years’ probation subject to various fines, fees, and conditions. Defendant filed a timely notice of appeal.
II. Discussion
A. Standard of Review
The court in which an action is pending may “at any stage of the proceedings” permit amendment of an information “unless the substantial rights of the defendant would be prejudiced thereby.” (§ 1009.) “The trial court’s discretion to allow amendment is broad and is almost invariably upheld. [Citation.]” (People v. Superior Court (Alvarado)(1989) 207 Cal.App.3d 464, 477 (Alvarado).) A decision permitting amendment “‘will not be disturbed on appeal in the absence of showing a clear abuse of discretion.’ [Citation.]” (People v. Bolden (1996) 44 Cal.App.4th 707, 716.) “The test for determining whether the trial court abused its discretion... is whether the amendment prejudiced the substantial rights of the defendant, and attempted to change the offense to one not shown by the evidence taken at the preliminary examination.” (People v. Brown (1973) 35 Cal.App.3d 317, 322.)
B. Analysis
Defendant concedes that the evidence presented at the preliminary examination was sufficient to support a charge of assault by means of force likely to produce great bodily injury. Nonetheless, he argues he was “totally surprised” by the amendment, which he claims afforded him insufficient notice to investigate and prepare an adequate defense. We are not persuaded.
Defendant urges that prejudice is “clearly shown by the fact that the jury acquitted [him] of battery causing serious bodily injury and convicted him of assault by means of force likely to produce great bodily injury.” We disagree. It may be that defendant “clearly... would have obtained a better result without the amendment,” but that is not the standard by which section 1009 measures prejudice.
“The focus of the trial court’s exercise of discretion in ruling on a motion to amend should be directed primarily to determining whether, on the facts presented, the requested amendment would prejudice [the defendant’s] substantial rights.” (Alvarado, supra, 207 Cal.App.3d at p. 477.) As the California Supreme Court has explained, the substantial rights that section 1009 is concerned with are a defendant’s right to be advised of the charges against him and his right to a reasonable opportunity to prepare for trial. (People v. Murphy (1963) 59 Cal.2d 818, 825 (Murphy).) “ ‘That counsel for a defendant has a right to [a] reasonable opportunity to prepare for a trial is as fundamental as is the right to counsel.’ [Citations.] It is also as fundamental as the defendant’s right to be advised of the charges against him, for the latter right is illusory if he then is denied sufficient time to prepare to meet such charges. [Citation.]” (Ibid.)
The statute itself expressly safeguards both of these substantial rights. It protects a defendant’s right to be advised of the charges against him by forbidding an amendment that charges “an offense not shown by the evidence taken at the preliminary examination.” (§ 1009; People v. Tallman (1945) 27 Cal.2d 209, 213 (Tallman).) And it protects a defendant’s right to a reasonable opportunity to prepare for trial by specifying that in the event a defendant’s substantial rights would be prejudiced by amendment, “a reasonable postponement, not longer than the ends of justice require, may be granted.” (§ 1009; Murphy, supra,59 Cal.2d at p. 825.)
Here, the trial court determined that defendant had not shown that the proposed amendment would compromise his substantial rights. We agree.
To the extent defendant claims lack of notice, his contention is untenable. As he concedes, “the new offense was palpable from the evidence presented at the preliminary hearing.”
A defendant cannot claim to have been caught unawares when an information is amended to add a charge shown by the evidence at the preliminary examination. (Tallman, supra,27 Cal.2d at p. 213.) “Notice of the particular circumstances of the offense is given not by detailed pleading but by the transcript of the evidence before the committing magistrate....” (People v. Roberts (1953) 40 Cal.2d 483, 486-487.) “It is established that the provision of [section 1009] allowing an amendment of an information so as to add an offense shown by the evidence at the preliminary examination, does not violate a defendant’s constitutional rights. [Citations.]” (Tallman, at p. 213.) “ ‘The section itself preserves the substantial rights of the party to a trial on a charge of which he had due notice, and that is all the Constitution requires.’ ” (People v. Flowers (1971) 14Cal.App.3d 1017, 1020.)
Evidence presented at the preliminary examination here showed that defendant is considerably taller than the victim and outweighs him by more than 100 pounds. The two were standing “[l]ess than one foot” apart when defendant punched the victim in the face. There was testimony suggesting that defendant pulled the victim toward him with one hand and punched him with the other. A witness claimed “there was metal” on the front of defendant’s hand. Defendant’s single blow was forceful enough to cause the victim to fall to the ground, where he hit his head and lost consciousness. At the hospital, the victim was told his nose was broken and he needed surgery. This testimony was more than sufficient to apprise defendant of a possible aggravated assault charge. (Tallman, supra,27 Cal.2d at p. 212.)
Defendant contends the amendment caught him by surprise and left him unable to adequately prepare a defense to the added charge. We are not persuaded.
A belated amendment occasionally catches a defendant unawares and compromises his right to prepare for trial. (See Murphy, supra,59 Cal.2d 818, 825.) Section 1009 anticipates such instances and provides a mechanism to ensure that a late amendment will not cause prejudice. It provides that trial “shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted.” (§ 1009, italics added.) Whether a continuance should be granted normally rests in the discretion of the trial court, but the California Supreme Court has made it plain that discretion “may not be exercised in such a manner as to deprive the defendant of a reasonable opportunity to prepare his defense.” (Murphy, supra, 59 Cal.2d at p. 825.) It is “ ‘clear that an amendment of substance... will carry a corresponding obligation to allow the defense adequate time to prepare an “amended defense.” ’ [Citation.]” (Id. at p. 827.)
In Murphy, two counts of the information charged defendants with aiding and abetting “Jim Prince” and “Jim McDonald” to commit statutory rape, and the defense was fully prepared to show the district attorney could not prove those charges because they were not true. (Murphy, supra, 59 Cal.2dat p. 826.) Caught by surprise when the trial court allowed an amendment substituting the partly fictitious names of apparently different persons for Jim Prince and Jim McDonald, defendants requested a continuance to prepare to meet the amended charges. (Id. at pp. 824-825.) The trial court denied the motion and defendants were convicted. Holding that the refusal to grant a continuance was error, the California Supreme Court reversed the judgments. (Id. at p. 825.)
Here, there was no refusal to grant a continuance. The fact is that defendant did not request one. When the amendment was first proposed, 20 days remained before jury selection. Defense counsel raised some specific concerns, and the court put the motion in abeyance to give the defense a chance to address those concerns. Although defendant now claims that “the continuance offered by the trial court was insufficient to cure th[e] prejudice,” at no time below did he question the sufficiency of the 20-day period or raise any additional issues about preparing his defense. At no time did he ask for additional time, notwithstanding the prosecution’s written representation that it would not oppose a postponement. Far from claiming prejudice, defendant raised no amendment-related issues whatsoever at the end of the 20-day period. Instead, he simply submitted the matter.
Defendant argues that the strategy he had developed to defend against the battery charge—challenging the evidence that he had inflicted serious bodily injury—“would not necessarily work... to defend against the [aggravated assault] charge.” The solution to that dilemma is, of course, to seek a continuance, if necessary, and to develop a strategy that would work. Here, defendant never requested a continuance, and the record reflects that he had, in fact, developed another strategy to defend against both charges: to show that he acted in self-defense. (See People v. Minifie (1996) 13 Cal.4th 1055, 1064.)
Defendant’s failure to seek a postponement destroys his argument that the amendment compromised his right to prepare his defense. (People v. Franklin (1962) 202 Cal.App.2d 528, 531-532.) On the facts of this case, the trial court could reasonably have concluded that amendment of the information would not prejudice a substantial right. No abuse of discretion occurred here.
Defendant’s failure to seek a postponement and his consequent inability to demonstrate prejudice to a substantial right makes it unnecessary for us to address his “unfair surprise” arguments, because even if we assume he was surprised, there was nothing unfair about it.
III. Disposition
The order of probation is affirmed.
WE CONCUR: McAdams, J., Duffy, J.