Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Los Angeles County, No. BA297958. Frederick N. Wapner, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, J.
A jury convicted Carl Anthony Vallier of two counts of indecent exposure with a prior conviction for indecent exposure. (Pen. Code, § 314, subd. (1).) The jury also found true that appellant had two prior serious felony convictions within the meaning of the “Three Strikes” law and served one prior prison term. (§ 1170.12, subds. (a)-(d), § 667, subds. (b)-(i), § 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise noted.
Appellant contends: (1) his waiver of the right to counsel was invalid because the trial court did not ensure that it was knowing, intelligent, and voluntary; (2) the trial court erred by failing to give a unanimity instruction on count 1; (3) appellant did not have fair notice of the charges against him in count 2; and (4) insufficient evidence supported the conviction on count 2. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On February 10, 2006, appellant was outside the Friedman Occupational Center, where adults and high school students receive vocational training and prepare for the General Educational Development (GED) test. Several witnesses, including two women, saw appellant standing on the corner masturbating with his pants down and his genitals exposed. Appellant made comments to people and cars passing by, such as, “I need a woman,” “I want to fuck somebody,” “I want to lick your pussy,” and “Why don’t you sit on my face.” Around 8:00 a.m., Los Angeles school police arrested appellant.
While in a holding cell later that day, appellant pulled his pants and boxer shorts down to his ankles. When female officers passed by the holding cell, appellant yelled out vulgar, sexual comments, like “Yeah, baby, yeah, baby, I want you to come over here and sit on my face, shit in my mouth.”
At his arraignment, appellant requested and was granted the right to represent himself. He filled out and signed a standardized Faretta waiver form. Appellant did not call any witnesses or testify on his own behalf.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
The trial court dismissed one prior strike conviction and appellant was sentenced to an aggregate term of five years four months in the state prison, comprised of the middle term of two years on count 1, and eight months on count 2, both doubled pursuant to the Three Strikes law. The trial court also dismissed the prior prison term allegation. This timely appeal followed.
DISCUSSION
I. Appellant Knowingly and Intelligently Waived His Right to Counsel
Appellant argues that his waiver of the right to counsel was invalid, in that it was not knowing, intelligent, and voluntary. We reject this claim.
A. Background facts
At the arraignment, appellant’s assigned public defender asked a colleague to stand in for him, for that day only. As the court was setting dates in the case, appellant interrupted the proceedings and told the court that he “would like to go pro per . . . .” The following colloquy ensued:
“THE COURT: Okay. If you want to go pro per on a life case.
“[APPELLANT]: Yeah.
“THE COURT: Faretta, even though I disagree with all the rulings of Faretta.
“MR. MONTOYA [the deputy public defender]: If I can say right now, Mr. Diaz [appellant’s assigned public defender] simply asked if I could do him a favor and stand in for Mr. Vallier today only for the arraignment. And Mr. Diaz actually went back into the lockup, and I followed him in. And Mr. Diaz introduced me to Mr. Vallier indicating I was standing in for today only.
“THE COURT: Correct.
“MR. MONTOYA: So I want Mr. Vallier to know.
“THE COURT: He knows that?
“[APPELLANT]: I understand that. I understand that.
“THE COURT: He wants to represent himself on a 25 to life. And remember, I just want to make it very, very clear. That you are carrying with it a very high bail. I don’t know where they are going to house you with a high bail. [¶] Multiple, maybe even a multiple 25 to life which means it’s more than 25 to life to as a base term, I don’t know anything about the facts of the case, anything at all. But the appellate courts have found through all their analysis and all their combined wisdom that you have a right to represent yourself. [¶] Now I am not going to go into all the details of what I have seen happen during the period of time folks represent themselves. I am not going to appoint stand-by counsel. I am going to relieve the public defender’s office. And no stand-by counsel because that is a back way of getting around the public defender’s office or A.P.D. Been around too long to have that. [¶] There is a Faretta form you fill out. Soon as you fill that out -- it’s not that difficult initially. I will put the first $40 on your books and allow pro per status. Pro per status and pro per privileges are two distinct issues. If you end up getting into an area where the law library is not accessible to you because of whatever lockdowns they have, your pro per status remains. Your pro per privileges will be affected. [¶] Mr. Vallier, do you understand?
“[APPELLANT]: Yeah, I understand.”
Following this exchange, appellant filled out a single-page standardized Los Angeles County Superior Court form, entitled, “Advisement and Waiver of Right to Counsel (Faretta* Waiver)” In it, appellant acknowledged that he understood that: (1) he had an absolute right to be represented by a lawyer; (2) the judge would appoint a lawyer free of charge if he could not afford one; (3) if he had a lawyer the lawyer would be able to investigate his case, file pretrial motions, and advise him on what he should do; (4) if he represented himself he would have to prepare his own defense without a lawyer’s advice, do his own research, and conduct his own investigation; (5) he would be required to follow the same rules of procedure and evidence as a lawyer would and he would receive no special treatment from the judge even if he did not know what he was doing; (6) his opponent would be an “experienced, thoroughly prepared prosecuting attorney” who would give him no consideration whatsoever and that he would be at an “extreme disadvantage” and could lose his case; and (7) if he was convicted, he would not be able to appeal on the ground that it was a mistake to represent himself. Appellant signed the form, indicating that he read and understood all of the warnings and still wanted to represent himself.
Appellant also noted on the form that he had a high school diploma, he was able to read and write in English, and that he had some legal training, specifically: “reading of law books and other cases I’ve battled. Cases the same as this one.” Appellant acknowledged that he had not represented himself before, but checked boxes indicating that he knew what the defenses were to the offenses with which he was charged, he knew the minimum and maximum possible punishments for the offenses, and he knew the other consequences if he were found guilty.
After appellant completed the form, the trial court read the waiver and incorporated it into the record. The trial court did not ask appellant any further questions, but arranged for appellant to secure a court-appointed investigator.
B. Appellant’s Waiver of the Right to Counsel was Knowing, Intelligent, and Voluntary
In Faretta, supra, 422 U.S. 806, the high court determined that a criminal defendant has a constitutional right to represent himself, so long as he knowingly and intelligently waives his right to the assistance of counsel. (Id. at pp. 835-836.) “A defendant seeking to represent himself ‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” [Citation.]’ (Faretta, supra, 422 U.S. at p. 835.)” However, ‘[n]o particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation.’ [Citation.] Rather, ‘the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.’ [Citations.]” (People v. Blair (2005) 36 Cal.4th 686, 708 (Blair).) We examine de novo the entire record to determine the validity of appellant’s waiver of the right to counsel. (People v. Koontz (2002) 27 Cal.4th 1041, 1070; People v. Sullivan (2007) 151 Cal.App.4th 524, 547 (Sullivan).) Appellant bears the burden of demonstrating he did not knowingly and intelligently waive his right to counsel. (Id. at p. 549.)
In this case, the trial court’s verbal admonitions to appellant were limited, but we cannot ignore the comprehensive admonitions in the standardized Faretta waiver form that appellant indicated he read, understood, and signed. Appellant acknowledged reading and understanding all of the cautionary statements in the waiver, which informed him of the many pitfalls he might encounter in representing himself. As the California Supreme Court explained in Blair, the advisement form “serves as ‘a means by which the judge and the defendant seeking self-representation may have a meaningful dialogue concerning the dangers and responsibilities of self-representation.’ [Citation.] The court might query the defendant orally about his responses on the form, to create a clear record of the defendant’s knowing and voluntary waiver of counsel. [Citation.] The failure to do so, however, does not necessarily invalidate defendant’s waiver, particularly when, as here, we have no indication that defendant failed to understand what he was reading and signing.” (Blair, supra,36 Cal.4th at p. 709.)
There is no indication defendant did not understand the waiver form here. Pursuant to Blair, that alone is sufficient to find a knowing and intelligent waiver. The trial court here also dialogued with appellant about the dangers of self-representation. Though it was not a model of comprehensiveness, it was sufficient in conjunction with the form appellant completed to assure us he made a knowing and voluntary waiver of his right to counsel in this case.
Moreover, the record as a whole demonstrates that appellant’s waiver was knowing and intelligent. Appellant indicated that he had a high school diploma, could read and write in English, and had read some legal materials. Further, as appellant admitted on the form, he was well acquainted with the legal system through numerous prior criminal proceedings. Although appellant had never represented himself before, his previous experience in the criminal justice system suggests that he had some level of sophistication about his legal rights. (Sullivan, supra, 151 Cal.App.4th at p. 553.) Even when appellant first asked to represent himself, he made it clear that he understood that the case was very serious, and the trial court informed him that he faced a life sentence. In sum, the record as a whole reflects that appellant’s waiver was knowing and intelligent. (See Blair, supra, 36 Cal.4th at p. 709.)
Appellant’s reliance on People v. Noriega (1997) 59 Cal.App.4th 311 (Noriega), is misplaced. In Noriega, the court did not admonish the defendant about the dangers of self-representation, and apparently the defendant did not receive or complete a waiver form such as the standardized one appellant read and signed in this case. (Id. at pp. 319-321.) Moreover, in Noriega, the trial court encouraged the defendant to represent himself. Here, the court did just the opposite. Appellant has failed to carry his burden of demonstrating he did not knowingly and intelligently waive his right to counsel.
II. Appellant Waived the Right to Object to the Constructive Amendment to Count 2
Appellant contends count 2 was improperly amended such that he was deprived of adequate notice of the charge against him. While it appears there was a constructive amendment to the charge, appellant cannot complain of the error now since he failed to object at the trial court on this basis.
Under section 1009, “[a]n indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.” Even when an amendment would conform the information to the proof at trial, if the offense added by the amendment was not shown by the evidence at the preliminary hearing, the amendment is impermissible. (People v. Winters (1990) 221 Cal.App.3d 997, 1007 [amending information to add count for transportation of methamphetamine to information charging only possession for sale was impermissible because there was no preliminary hearing].)
A. Background Facts
1. The preliminary hearing
The People charged appellant with two counts of indecent exposure with a prior conviction for indecent exposure in violation of section 314, subdivision (1). At the preliminary hearing, the prosecutor offered the testimony of two female witnesses, both of whom observed appellant exposing himself outside of the occupational center. The first was Amanda T., who observed defendant with his pants down. He followed her, held out his hand with money in it and told her he needed a female. The second was Nancy Tuflija, the high school’s counselor, who was working inside the occupational center when she was called outside to investigate a radio call that a naked man was there. When she saw appellant, his pants were down to his thighs, his penis was exposed and he was playing with himself.
At the conclusion of the preliminary hearing, defense counsel moved to dismiss count 2, arguing that the evidence presented all related to a single incident and therefore supported only one count of indecent exposure. The court denied the motion and found that the testimony of the second witness was sufficient to charge a second count of indecent exposure. The original and amended information alleged two identical counts of indecent exposure with a prior.
2. The trial
At trial, the prosecutor indicated in her opening statement that the jury would hear evidence about appellant exposing himself to a number of people outside of the occupational center, two of whom were the subject of the crimes. During the trial, Los Angeles School Police Officer Kristian Rios testified for the first time that appellant exposed himself again in a police holding cell after his arrest. Appellant did not object to this testimony. In her closing argument, the prosecutor pointed to the events outside of the occupational center as substantiating the counts, and did not mention Officer Rios’s testimony or the holding cell exposure. The jury received no instruction on the difference, if any, between the two counts.
Soon after deliberations began, the jury sent several questions to the trial court, including, “What are the specific counts? Were they two separate locations at two different times? Was count 1 the exposure on the street corner at approximately [sic] 8 AM and count 2 in the police holding tank at approximately [sic] 4 PM on the same day?” The trial court read the question to the prosecutor and appellant, and stated: “[T]he answer is, count 1 is on the street and count 2 is in the police station. [¶] That’s the way you [sic] charge it, correct, Ms. Knight [the prosecutor]?” The prosecutor acknowledged that the People had not distinguished between the two counts, and suggested that the court give a unanimity instruction because there were multiple acts that could constitute the offenses. However, the prosecutor was also amenable to the court’s suggestion, explaining, “I think those two incidents definitely could be construed as count 1 and count 2. [¶] I think there are others, I guess, in the reports there are other [sic] incidences. But as far as the testimony that was presented, those two would be the primary two incidents, yes.”
The trial court indicated it thought count 1 encompassed appellant’s continuing course of conduct outside the center in the morning and that count 2 was the incident in the holding cell in the afternoon, and thus decided it would tell the jury that count 1 was based on appellant’s actions on the street and count 2 was based on his actions in the holding cell. The following colloquy ensued between appellant and the trial court:
“THE COURT: Mr. Vallier, is it okay if I tell them these things?
“[APPELLANT]: I don’t -- I don’t think that you should participate in that.
“THE COURT: Well, what would you say the answer should be?
“[APPELLANT]: Let them figure it out for themselves.
“THE COURT: But they asked me a question, I can’t tell them to figure it out themselves.
“[APPELLANT]: Just say you read -- you got the information that you gave them, let them go from there. Let them look at what the . . . Penal Code 314 consists of without deleting anything.
“THE COURT: Okay. You said
“[APPELLANT]: Let them figure it out for themselves once they got the law, that’s part of their job. You become part of the jury.
“THE COURT: No, I’m not telling them how to find the facts. I’m only telling them what the law is.
“APPELLANT: Yeah, but that’s – that’s what – that’s what I’m saying, just tell them what the law is and let them handle it from there.”
The judge then brought the jury into the courtroom and said:
“THE COURT: The first three questions are really one question. What are the two specific counts, were they two separate locations at two different times, was count 1 the exposure on the street corner at approximately 8:00 a.m. and count 2 in the police station holding tank at approximately 4:00 p.m. on the same day. [¶] So that’s three questions. The answer to which is count 1 is on the street in the morning and count 2 is in the police station in the afternoon.
“[APPELLANT]: Excuse me, your honor. [¶] Can I object to that?
“THE COURT: No, you already did. We already talked about it.”
Appellant made no further objections or statements.
B. Waiver
Appellant now argues that he was deprived adequate notice of the charges against him in count 2. Respondent concedes that the People did not present evidence at the preliminary hearing about the appellant’s actions in the holding cell, but contends the issue has been waived. The trial court specifically offered appellant the opportunity to object to the proposed answer to the jury, but appellant did not take it.
Because we raised the waiver issue on our own motion, we invited the parties to submit supplemental briefing pursuant to Government Code section 68081.
Appellant contends in his supplemental letter brief that he did in fact object to the court’s response to the jury’s questions as soon as it became apparent that the trial court intended to elect which act formed the basis for each count. This is not the case. Appellant stated only that he wanted the jury to figure out the answer by themselves, not that the court’s proposed answer allowed the jury to convict him of an offense for which no evidence was adduced at the preliminary hearing, or that he was not given notice of the charges. His objection had nothing to do with the evidence presented at the preliminary hearing or a lack of notice of the charges against him. Moreover, appellant did not request a continuance or move for acquittal based on the constructive amendment. (Burnett, supra, 71 Cal.App.4th at p. 178.) Specific and timely objections are required to preserve an issue for appeal. (People v. Waidla (2000) 22 Cal.4th 690, 726, fn. 8.)
While hindsight might suggest that appellant’s statements after the court answered the jury’s question were related to a violation of section 1009 or lack of notice on the amended count 2, these statements were neither clearly an objection, nor were they sufficiently specific. We also note that appellant’s post-trial motions did not address the lack of notice or section 1009 issue.
Therefore, we must conclude that appellant forfeited his claim that he lacked notice of the charges against him in count 2. Objections must be preserved below because otherwise “the People would be deprived of the opportunity to cure the defect in the trial court and the defendant would be allowed to gamble on a favorable result – secure in the knowledge that if he did not prevail there, he would be able to prevail on appeal. [Citations.]” (Newlun, supra, 227 Cal.App.3d at p. 1604.) This is especially applicable here because had appellant objected, the trial court could easily have told the jury that the evidence underlying counts 1 and 2 was based on the two witnesses outside the occupational center and no error would have occurred. In the alternative, appellant could have been granted a continuance to look into the evidence underlying the indecent exposure in the holding cell. Indeed, “[u]nfairness because of lack of notice may often be cured in the trial court by granting the defendant a continuance of the trial to allow a defendant fair opportunity to meet the new evidence.” (Ibid.) Appellant had the opportunity to object to the constructive amendment of the information before the revised count went to the jury, but he failed to do so. Thus, appellant is precluded from protesting for the first time on appeal. (People v. Saunders (1993) 5 Cal.4th 580, 589-590 [failure to make timely assertion of a right before a tribunal having jurisdiction to determine it results in forfeiture of that right].)
Appellant also contends that the People failed to produce before trial a photograph of appellant naked in the holding cell. To the extent this is a separate notice or due process argument, we reject it due to appellant’s failure to object below. (People v. Burgener (2003) 29 Cal.4th 833, 876; People v. Boyette (2002) 29 Cal.4th 381, 423-424.) At trial, appellant not only failed to object to the prosecutor’s use of the photograph, he also questioned a witness on cross-examination about the photograph, and published it to the jury.
III. There Was No Error In Failing to Give a Unanimity Instruction
Appellant next argues that the trial court should have given a unanimity instruction as to count 1. He is mistaken.
When the evidence at trial suggests that a defendant committed more than one discrete act upon which a single count could be based, either the prosecutor must elect one of the acts, or the court must instruct the jury members that they must agree that the prosecution has proved that the defendant committed at least one of the acts, and they must all agree on which act the defendant committed. (People v. Russo (2001) 25 Cal.4th 1124, 1132; People v. Norman (2007) 157 Cal.App.4th 460, 464-465; see CALCRIM No. 3500.) However, a unanimity instruction is not required “ ‘when the acts alleged are so closely connected as to form part of one transaction. [Citations.]’ ” (People v. Haynes (1998) 61 Cal.App.4th 1282, 1295.) “Even when the prosecution proves more unlawful acts than were charged, no unanimity instruction is required where the acts proved constitute a continuous course of conduct. [Citation.]” (People v. Napoles (2002) 104 Cal.App.4th 108, 115.)
Here, appellant’s actions outside of the occupational center formed only one transaction. Although numerous people saw appellant exposing himself, all of appellant’s actions occurred on one street corner, within a 15 or 20-minute period. Appellant’s actions outside of the center were not discrete acts. (Cf. People v. Davey (2005) 133 Cal.App.4th 384, 387, 391-392 [under section 654, “a single act of indecent exposure constitutes only one crime for the purpose of sentencing, regardless of the number of people who witness it”]). The acts alleged to support count 1 constituted a continuous course of conduct. Therefore, no unanimity instruction was required.
Because we find that the continuous course of conduct exception applied, we need not address respondent’s argument that no unanimity instruction was required because the prosecutor made an election at trial to establish which acts constituted which offenses.
IV. Sufficient Evidence Supported the Jury’s Verdict on Count 2
Appellant contends that there was insufficient evidence to support appellant’s conviction on the amended count 2. He is wrong.
“To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Sufficient evidence supported the conviction on count 2. Officer Rios testified that after appellant was placed in the holding cell he “managed to sit on top of a bench and he pulled his pants back down around his ankles.” In addition, Rios testified that appellant repeatedly yelled out vulgar, sexual comments to female officers who walked by, similar to appellant’s comments on the street corner earlier that day. Rios’s testimony was sufficient to establish that appellant willfully exposed his genitals in the presence of persons who might be offended or annoyed by his actions, and that appellant intended to direct public attention to his genitals for the purpose of sexually arousing or gratifying himself, or sexually offending another person. (See § 314, subd. 1; CALCRIM No. 1160.)
Appellant contends that Officer Rios’s testimony was not sufficient because Rios also noted: “I couldn’t hear [appellant] because [he was] behind the glass.” However, Rios specifically testified, “He would yell at the female officers that were walking by, [‘]Yeah, baby, yeah, baby, I want you to come over here and sit on my face, shit in my mouth,[’] stuff like that.” In context, the jury reasonably could have interpreted Rios’s testimony to mean that he could not hear appellant perfectly, but did hear or grasp the general gist of his comments. Further, appellant neither objected to this testimony nor challenged or questioned Rios about it on cross-examination. “ ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]’ ” (People v. Thomas (1992) 2 Cal.4th 489, 514.)
DISPOSITION
The judgment is affirmed.
I concur: COOPER, P. J.
Flier, J., Concurring and Dissenting.
I concur with parts I and III of the majority opinion. Under my view of the case, it would not be necessary to address the issue that is the subject of part IV of the opinion. I do not agree with part II and dissent for that reason.
I cannot agree with the majority’s conclusion that appellant waived his objection to the court’s instruction that count 2 referred to the incident at the police station. I have two reasons for this.
First. Immediately after the court’s instruction to the jury, appellant said: “Excuse me, your honor. [¶] Can I object to that?” The reply was: “No, you already did. We already talked about it.” (Maj. opn., ante, p. 10.) This exchange has three aspects to it. First, it indicates that appellant wanted to object to the proposed instruction. Second, the trial court’s statement recognized that in fact an objection had been made earlier. Third, the trial court’s ruling deprived appellant of the opportunity of enlarging on the objection that had been made.
The fact that the trial court recognized that an objection had been actually made means that the actual basis of the majority’s conclusion of waiver is not that an objection was waived, but that the objection that was made did not specify grounds or, if it did, it specified the wrong ground or grounds. “A defective specific objection is a waiver in criminal as well as civil cases.” (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 379, p. 469 [citing multiple authorities].) But “[w]here the error in admission is too serious to be cured or waived, e.g., use of a coerced confession or unduly prejudicial matter, the point may be raised on appeal regardless of the nature of the objection or even total failure to object. (See infra, § 397.) And in any case involving a serious crime, and particularly a capital case, the requirement of a proper objection may be greatly relaxed.” (3 Witkin, Cal. Evidence, supra, § 379, p. 471.)
“Many cases illustrate 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.) “Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.” (In re Hess (1955) 45 Cal.2d 171, 175.) Appellant’s right to notice of the charges against him is a fundamental right protected by the due process clause. The error is so fundamental that there is a likelihood that it is structural error, which requires automatic reversal (see generally 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 20, pp. 472-473), which is reviewable absent any objection at all. In any event, the abrogation of the right to notice of charges is too serious, in my opinion, to insist upon a technically proficient statement of grounds for the objection that appellant did make. While it is true that appellant in propria persona was not entitled to special privileges in the conduct of the trial, one would think that perfection of form should not be expected, especially in the heat of the moment, from anyone. As it is, appellant was fairly stubborn in resisting the proposed instruction.
This brings me to another aspect of the court’s statement, “No, you already did. We already talked about it.” Obviously, appellant had been thinking. We do not know what he might have said, had the trial court permitted him to lodge an objection. Thus, on the one hand, this court holds appellant to the standard of specifying the correct ground for his objection and, on the other hand, the trial court deprived him of the opportunity to possibly make a better objection than he did make. Given the importance of the right at stake, I do not think this is correct.
Second. I cannot agree with the unstated premise of the majority that the trial court needed appellant to explain to the court that the proposed instruction effectively amended the information and that appellant was therefore entitled to a continuance. The trial court was in a far better position than appellant to appreciate that the prosecution had tried the case on the theory that both charges were based on the incident(s) at the occupational center and that the proposed instruction did not follow that theory.
I think that, from a pragmatic perspective, appellant initially did as well as could be expected in making clear that he was objecting to the proposed instruction. Given the importance of the right, this should be enough.
In sum, I think that the decision by the trial court was seriously flawed. I would reverse the judgment on count 2 and remand for new proceedings on the charge as amended by the trial court. I would affirm the balance of the judgment.