APPEAL from a judgment of the Superior Court of Los Angeles County, William Birney, Judge. Reversed. (Los Angeles County Super. Ct. No. VA098185).
The opinion of the court was delivered by: Manella, J.
CERTIFIED FOR PUBLICATION
Appellant Timothy Albert Graff contends his convictions on two counts of violation of Penal Code section 288, subdivision (c)(1) must be reversed because the jury was permitted to convict based on charges not established at the preliminary hearing.*fn1 We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2006, a seven-count criminal complaint was filed against appellant. All seven counts alleged that appellant committed a lewd and lascivious act on a person who was 15 years old with the intent of "arousing, appealing to and gratifying" his "lust passions, and sexual desires" within the meaning of section 288, subdivision (c)(1).*fn2 None alleged a specific act.
Counts 2 through 7 identified the minor involved as Victim 1.*fn3 Count 2 alleged that the improper act occurred between November 17 and December 31, 2003. Count 3 alleged that the act occurred between January 1 and February 28, 2004. Count 4 alleged that the act occurred between March 1 and April 30, 2004. Count 5 alleged that the act occurred between May 1 and June 30, 2004. Count 6 alleged that the act occurred between July 1 and August 31, 2004. Count 7 alleged that the act occurred between September 1 and November 8, 2004.
The preliminary hearing took place in April 2007. The two alleged victims and Officer Joanne Yarbrough were the only witnesses.*fn4
Victim 1 was appellant's adoptive daughter. Her birth date was November 9, 1988. She testified that the first time appellant made an improper suggestion to her was sometime in the summer of 2004, between the end of her 9th grade school year and the beginning of her 10th grade year, before she turned 16.*fn5 She was alone in her bedroom. Appellant asked to see how she was developing. She showed appellant her breasts by lifting her shirt for a few seconds and he commented that she was "cute." The second incident occurred in the fall of 2004, after Victim 1 entered 10th grade, just before she turned 16. Appellant came into her bedroom and asked to "see" her. She showed him her breasts for a few seconds by lifting her shirt. On both occasions, appellant offered her money. A third incident occurred shortly thereafter. This time, Victim 1 removed all her clothing. On this occasion she expected not money, but a free pass to do anything she wanted, which she referred to as "a pretty please."*fn6
The fourth incident occurred when Victim 1 was in 10th grade, while she was in her bedroom. Appellant asked her to masturbate, which they both referred to as "girly business." She touched her vaginal area over her clothing for approximately 15 seconds. The court asked if she could recall the date with more precision, but other than that it "probably" occurred before Christmas, she could not. On a fifth occasion, which also occurred during 10th grade, she masturbated with a pillow over her head. She testified that this incident also occurred before Christmas, probably in the fall; but again, she could not recall the date with more precision.
Although the complaint contained six counts pertaining to Victim 1, she described only the foregoing five incidents. At one point, the prosecutor prompted her about other possible incidents, asking whether there was a time appellant pulled a towel off her when she had just finishing showering, whether appellant ever forcibly removed her clothing, or whether there was another masturbation incident in which she was more fully unclothed. In each case, she stated she could not recall any such incident.
After hearing the evidence, the court noted that Victim 1's testimony encompassed only five incidents, rather than the six set forth in the complaint, and that only the dates in counts 6 and 7 of the complaint corresponded to any of the dates stated in her testimony. Moreover, the court found Victim 1's testimony too vague concerning the dates of the two masturbation incidents to constitute substantial evidence that the incidents occurred before she turned 16.*fn7
Accordingly, the court: (1) dismissed count 2; (2) amended the date of count 5 to allege the incident occurred between July 1 and November 1, 2004; (3) amended counts 3 and 4 to conform to the testimony concerning the dates of the two masturbation incidents and dismissed those counts. Counts 6 and 7 remained as originally alleged. The court expressly matched each remaining count with a specific incident from Victim 1's testimony: "I see count 6 as being the first display of [Victim 1's] breasts. Count 7 is the second display [of her breasts]. . . . I'm going to change the date [of count 5] to between July 1 of 2004 and November 1 of 2004. And that will be the count which corresponds to the testimony that [Victim 1] removed her clothes."
After the preliminary hearing, an information was filed conforming to the commissioner's rulings. It charged appellant with three counts of committing a lewd and lascivious act on the person of Victim 1 within the meaning of section 288, subdivision (c), numbered 5, 6, and 7: count 5 alleged the incident occurred between July 1 and November 30, 2004; count 6 alleged the incident occurred between July 1 and August 31, 2004; and count 7 alleged the incident occurred between September 1 and November 8, 2004. All three counts alleged that the victim was 15 years old at the time of the offense.*fn8
1. Evidence of Uncharged Offenses
Prior to trial, defense counsel moved to exclude all evidence pertaining to appellant's having watched Victim 1 masturbate, on the ground that the prejudicial effect outweighed any probative value. In making this request, counsel stated: "The complaint in the matter charged in counts 3 and 4 that [appellant] observed [Victim 1] masturbating. [¶] At the preliminary hearing the commissioner found that there was insufficient evidence to sustain those counts. They were therefore dismissed. [¶] Those counts are no longer in the case. The issue of masturbation is no longer in this case, and it ought to be excluded on relevance grounds. [¶] But beyond that, it is excludable on [Evidence Code section] 352 grounds. The issue is, is it unduly prejudicial? Does it outweigh the probative value? And I submit it does given that the counts were dismissed. The probative value is nil and the potential prejudice is high."
In response, the prosecutor began by conceding that the People were not proceeding on counts 3 and 4: "Counts 3 and 4 -- 2, 3 and 4 we are not proceeding on." She then argued that the commissioner's preliminary hearing rulings did not "restrict [the People] in terms of our ability to introduce evidence that relates to the charges"; that there was "nothing in the complaint or the information that says anything about what the nature of the touching is"; and that "any evidence that has been turned over to the defense in preparation for this trial . . . is admissible to establish whether the charges are true." She asserted that "[the evidence] turned over to the defense, is far more substantial than what was introduced at [the] preliminary hearing." She further argued that the People were permitted to introduce evidence "to establish the intent or the motive of the defendant . . . and even if there are . . . previously dismissed additional offenses, the People are clearly under . . . Evidence Code [section] 1108, permitted to introduce evidence of other sex related acts, whether they are charged, uncharged, dismissed, [etc.]"*fn9
The court ruled that the evidence was admissible as indicative of motive or intent.*fn10
In her opening statement, the prosecutor contended the evidence would show that appellant "consistently and habitually committed lewd acts upon the person of [Victim 1]" and committed "at least three lewd and lascivious acts upon the person of [Victim 1]." She did not specify the acts charged, but stated the evidence would show that appellant moved from requesting to see parts of the victims' bodies to "teaching [Victim 1] to masturbate in his presence . . . on multiple occasions."
In his opening statement, defense counsel stated that with respect to Victim 1, appellant was charged in three counts with having viewed her breasts and body. Counsel informed the jury that appellant was not ...