(Super. Ct. No. CM030805)
The opinion of the court was delivered by: Robie ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After a neighborhood dispute, a jury found defendant Eero Herrick guilty of the felonies of arson and making a criminal threat, and a misdemeanor count of vandalism. The trial court sentenced him to consecutive prison terms for the felony convictions, with a concurrent jail term for vandalism.
Defendant argues on appeal that the trial court abused its discretion in allowing the prosecutor to amend the information to allege the count of making a criminal threat because there was insufficient evidence at the preliminary examination to support it, thus violating his right to due process. He also argues the court should have stayed punishment on the vandalism conviction (Pen. Code, § 654)*fn1 because it involved the same course of conduct as the arson conviction. Finally, defendant claims entitlement to additional conduct credit. We shall affirm the judgment as modified.
A Motion to Amend Information
The original information charged defendant with arson of his neighbor's car, felony vandalism of the car, and two counts of threatening witnesses (both of his neighbors) for providing the police and the prosecutor with assistance and information. At the preliminary examination, neither the victim nor her fiancee testified. Instead, the prosecutor's investigator testified about the following facts, based on his interview earlier that day with the victim.
Defendant habitually played his music too loudly. His apartment shared a wall with his neighbors.
In July 2009, the neighbors called the police, who issued a written citation to defendant on their second visit. After the police left, the victim encountered defendant on the common landing outside their second-floor apartments and asked why he would not simply play his music more quietly. He said to the victim that "'If you call the cops on me again or I get in trouble, I'll take care of you myself.'" When the victim asked if that was a threat, defendant started to walk toward her, which scared her. Her fiancee came out of their apartment, at which point defendant turned and walked back into his residence.
At a pretrial conference, the prosecutor moved to file an amended information, which would allege the making of criminal threats against the victim and her fiancee as alternates to the counts of witness threatening. Defense counsel objected, claiming the prosecutor could have done this earlier, and also asserting the amendment "perhaps . . . would have affected the outcome of the trial readiness conferences."*fn2 The prosecutor responded that he had not personally met with the victim before that day, at which time he learned that he might not be able to prove the elements of threatening a witness. When the court suggested that the less-specific intent required for the new counts could have prejudiced defense counsel's preparations for trial, the prosecutor responded that he would be entitled to move to amend the information to conform to proof at the close of his case, and was now putting defense counsel on notice that he would take that action if the court denied the motion to amend. The court denied the motion without prejudice to its renewal at trial.
At trial, the victim testified defendant had moved next door in March 2009. He played his music so loudly that the constant thrumming of the bass notes knocked items off the shelves in the victim's apartment. On one occasion, she ...