Filed 2/26/16 P. v. Garcia CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

RUDY ART GARCIA, JR.,

 Defendant and Appellant.

 G052149

 (Super. Ct. No. RIF1200175)

 O P I N I O N

Appeal from a judgment of the Superior Court of Riverside County, Mac R. 

Fisher, Judge. Affirmed in part and reversed in part, with directions.

Carl Fabian, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Minh 

U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
2

A jury convicted Rudy Art Garcia, Jr., of two counts of lewd or lascivious 

acts against his cousin, John Doe 1, before Doe 1 turned 14 years old (Pen. Code, § 288, 

subd. (a); counts 1 & 2; all further statutory references are to this code), two additional 

counts of lewd acts when Doe 1 was under 16 years old (§ 288, subd. (c); counts 3 & 4), 

and contacting a minor, Doe 1’s brother, John Doe 2, with the intent to commit a sexual 

offense (§ 288.3, subd. (a); count 9). The jury found on counts 1 and 2 that defendant 

engaged in substantial sexual conduct (§ 1203.066, subd. (a)(8)), precluding probation or 

a suspended sentence (ibid.). The trial court sentenced defendant to 12 years in prison, 

comprised of eight years on count 1, two consecutive years as one-third the middle term 

on count 2, and three consecutive eight month terms, each being one-third the middle 

term on counts 3, 4, and 9.

Defendant contends we must set aside his conviction on count 1 because 

the amended information charging that offense fell outside the statute of limitations. But 

he acknowledges the original complaint was timely, and concedes the amended 

information related back to the timely complaint if the prosecutor intended to charge a 

particular instance of abuse (the “bubble gum oral copulation incident”) in the initial 

complaint. Because the record supports the conclusion that incident formed the basis for 

count 1 in the original complaint, the amended information related back to it and did not 

run afoul of the statute of limitations. 

Defendant’s other challenges, however, have merit. As we explain, the trial 

court erroneously allowed the prosecutor to file a second amended information after the 

close of evidence to add an alleged period of abuse on count 2 that the testimony at the 

preliminary hearing unequivocally disavowed as a basis for prosecution (“while he lived 

at the Ashwood Apartments[,] there was no sexual contact”). Although sex abuse 

allegations may be pleaded generically (People v. Jones (1990) 51 Cal.3d 294 (Jones), 

there are due process limits (id. at p. 317), which the belated amendment here exceeded.
3

As to defendant’s sentencing challenges, the Attorney General concedes the 

abstract of judgment and minute order must be corrected to delete a one-year concurrent 

term under section 1203.066 that the trial court did not impose, and the eight-month term 

imposed on count 9 must be corrected to a four-month term. As we explain, however, 

these sentencing issues are mooted by the necessity of resentencing on remand.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Bubble Gum Incident — Count 1

In late 2002 or early 2003, eight-year-old Doe 1 lived with his family in a 

house on Mark Twain Road. Defendant, who at age 23 was 15 years older than Doe 1, 

entered a closet with his young cousin and instructed the boy to pull down his pants. 

Defendant then pulled down his own pants, gave Doe 1 a piece of bubble gum, and 

instructed Doe 1 to use the bubble gum like a condom around defendant’s penis. 

Defendant had Doe 1 orally copulate him in this manner until defendant ejaculated.

B. Other Alleged Lewd Conduct While Doe 1 was Under 14 years old — Count 2

At the preliminary hearing, Detective Lance Colmer testified defendant 

engaged in a continuing pattern of substantial sexual abuse against Doe 1 while Doe 1 

lived at the home on Mark Twain Road, until Doe 1 and his family moved in 2004. 

But at trial, Doe 1 testified the abuse occurred at a different location and 

time frame after the move. Specifically, sometime in the fall of 2004, Doe’s family 

moved from the Mark Twain Road residence to an apartment in the Ashwood complex on 

Hemlock Street in Moreno Valley. It was only when Doe had moved to the 

Ashwood Apartments that he and defendant engaged in any mutual masturbation or 

touching of genitals. Doe explained at trial that after he moved to the new apartment 

with his family, defendant moved into his own apartment near a movie theater. There, 
4

Doe 1 sometimes visited defendant, as often as every other weekend, and he and 

defendant would mutually masturbate each other, sometimes in the bed or in the 

bathroom. They also took showers together and washed each other’s genitals.

Sometime in 2006, Doe 1 and his family moved to an apartment on 

Frederick Street. Doe 1 was in the sixth grade and still under 14 years old. According to 

Doe’s trial testimony, defendant sometimes visited him at the Frederick Street residence 

and they masturbated each other numerous times. 

C. Lewd Conduct while John Doe 1 was 15 or 16 years old — Counts 3 and 4

Sometime around the end of 2008 to the beginning of 2009, after Doe 1 had 

turned 14, defendant moved into the same Frederick Street apartment complex, but in a 

different unit. Doe testified that he and defendant engaged in oral sex for the first time 

since the bubble gum incident, and defendant also groomed him for anal sex. On several 

occasions when they were alone, defendant requested anal sex and explained, “It’s just 

like having sex with a girl.” They engaged in anal sex in Doe 1’s bedroom, where 

defendant slept in bed with him, and when defendant showered with him. The abuse was 

nearly constant, with oral copulation twice a day after school, mutual masturbation on a 

continual basis, and anal sex more than once a week. Defendant continued abusing 

Doe 1 until he was 16 years old, and only ceased when defendant moved out of state in 

2010. 

D. Contact with John Doe 2 to Commit a Sexual Offense — Count 9

On February 10, 2011, while defendant was living in Washington state, he 

e-mailed John Doe 2 and solicited him to send a video of himself ejaculating. Doe was 

15 at the time and defendant was 31 years old. Doe 2 did not send defendant a video. 

E. Pretext Call and Defense

In late 2011, when Doe 1 was in 12th grade, he told his mother about the 

sexual abuse, which she reported to the police. On November 30, 2011, the police had 
5

Doe 1 make a “pretext call” to defendant. During the call, investigators heard defendant 

admit to “molest[ing]” Doe 1 as “a little kid” and that he “kept going” during anal sex 

with Doe 1 though Doe 1 told him it hurt. When Doe 1 brought up other sexual 

incidents, defendant claimed “I did what I did to you” because “I was in love with you” 

and someone had told him “that if I sleep with somebody, our spirits can be one.” He

acknowledged, “yeah, I was ignorant,” but warned Doe 1 his life would be “screwed,” he 

would go to jail, and his wife would leave him if Doe 1 reported the abuse. He 

threatened Doe 1, “If you don’t forgive me, then God won’t forgive you,” and also 

threatened to take his own life. 

Defendant testified his father masturbated him as a child and that an adult 

male sodomized him at a church camp. According to defendant, he did not molest Doe 1 

until the child was 14 years old. 

II

DISCUSSION

A. Statute of Limitations

Defendant argues the trial court erred by allowing the prosecutor to file an 

amended information on the first day of trial, changing the date range of the “lewd and 

lascivious act” (§ 288, subd. (a)) alleged in count 1 from July 2, 2003 through July 2, 

2004, to include a year earlier, from July 3, 2002, through July 2, 2004. Because the

period added by the amendment — July 2002 through July 2003 — is more than 10 years 

before the date the prosecutor filed the amended information on September 16, 2013, 

defendant contends the 10-year statute of limitations in effect at the time precluded the 

amendment. (See former § 803, subd. (i)(2), as amended by Stats. 2001, ch. 235, § 1, 

pp. 2121-2126, eff. Jan. 1, 2002 to Sept. 28, 2002; People v. Ortega (2013) 

218 Cal.App.4th 1418, 1429.) 

The date the prosecutor amended the information, September 16, 2013, is 

also outside a former alternative limitations period that was in effect for otherwise time-
6

barred abuse, i.e., within one year of a report of abuse to a California law enforcement

agency by a person under age 21. (See former § 803, subd. (h), as amended by Stats. 

2001, ch. 235, § 1, pp. 2338-2342, eff. Jan. 1, 2002 to Sept. 28, 2002.) Specifically, 

Doe 1 reported the abuse to authorities in October 2011, and within a year the prosecutor 

filed an initial complaint alleging the abuse in February 2012. The complaint alleged the 

abuse began in July 2003, and this allegation remained unchanged in several amendments 

to the complaint and in an initial information. As noted, the date the alleged abuse 

commenced was not pushed back to July 2002 until the prosecutor filed the amended 

information on September 16, 2013.

Defendant acknowledges that the date the initial complaint was filed, in 

February 2012, was timely under both the 10-year statute of limitations, and it is also 

timely under the alternative period of a year from a report of abuse as a juvenile. But as 

defendant correctly points out, the amended information filed on September 16, 2013,

does not automatically relate back to the filing date of the initial complaint. An initial 

filing date does not operate “as a categorical exception to the running of the applicable 

limitation period for the entire class of same or similar criminal acts allegedly committed 

by a defendant against the same victim during the same time frame as an offense charged 

in a pending prosecution.” (People v. Terry (2005) 127 Cal.App.4th 750, 769.) Rather, it 

“suspends the running of the statute of limitation only for the conduct underlying a 

charged offense but does not stop the running of the [limitations period] on completely 

separate instances of criminal conduct, even when acts were proven by ‘generic’ 

testimony.” (Ibid.)

Accordingly, “a critical inquiry must be made: is the amendment to 

correct a defect or insufficiency in the original complaint or is the amendment to charge 

an offense not attempted to be charged by the original complaint? ‘If the amendment 

falls in the former category, it relates back to the date of the original filing of the 

information and has the effect of tolling the running of the statute of limitations from the 
7

date of the original information. [Citation.] If the amendment falls in the latter category, 

the . . . statute of limitations on the charges has run’ [citation] and the charges are 

barred.” (Harris v. Superior Court (1988) 201 Cal.App.3d 624, 627-628 (Harris).)

As a preliminary matter, the Attorney General asserts defendant forfeited 

his statute of limitations challenge by failing to raise it below. (Cf. People v. Gil (1992) 

3 Cal.App.4th 653, 659 [waiver where defendant did not assert inadequate notice of 

amended charges].) Defendant contends an objection would have been futile because the 

trial court rejected his objection to other amendments; alternatively, he asserts his trial 

attorney rendered ineffective assistance of counsel (IAC) by failing to make a specific 

objection based on the limitations period. 

We reach the merits of defendant’s limitations challenge because doing so 

resolves his claims in one stroke. Simply put, whether or not an objection would have 

been futile, defendant’s limitations challenge fails because the record shows that count 1 

of the amended information related back to the same act charged in count 1 in the 

complaint. Defendant’s IAC claim therefore also lacks merit. (See People v. Cox (1991) 

53 Cal.3d 618, 656 [challenge fails where reviewing court finds no prejudice from 

counsel’s alleged failures].)

Defendant contends no evidence supports the conclusion count 1 in the 

amended information referred to the same underlying conduct charged in count 1 in the 

complaint, and therefore related back to it. He surmises the offense charged in the 

amended information must have been a new one, and therefore fell outside any applicable

statute of limitations.

But the prosecutor explained at the outset of trial that her purpose in 

amending the information was to ensure consistency with “the testimony at [the] 

preliminary hearing.” At that hearing, Detective Colmer identified in the period before 

Doe 1 turned 14 a specific, initial instance of abuse (the bubble gum incident) followed 

by a continuing pattern of abuse at that residence (“it continued to be oral sex, mutual 
8

masturbation, showering together, and anal sex”). The initial complaint and all 

subsequent amendments pleaded counts 1 and 2 generically as lewd and lascivious acts, 

without identifying the basis of either. But the division into two counts strongly suggests 

one was based on the bubble gum incident, presumably count 1, because the abuse began 

with that incident, and therefore the continuing pattern of abuse fell within count 2. 

Although the testimony at the preliminary hearing showed the abuse started with the 

bubble gum incident “in [the] third grade when [Doe 1] was around the age of eight or 

nine,” which would have been in 2002, an amended information at trial was necessary 

because the initial complaint and subsequent amendments identified the charging period 

as beginning in 2003. 

It appears the original complaint simply miscalculated the start of Doe 1’s 

third grade year as 2003 instead of 2002, just as the complaint also misidentified Doe 1 as 

a Jane Doe instead of John Doe. The prosecution corrected the latter mistake promptly in 

an amended complaint. But such clerical corrections do not amount to charging a new 

offense, and therefore do not prevent an amendment from relating back to a complaint 

filed within the statute of limitations. (Harris, supra, 201 Cal.App.3d at pp. 627-628.)

Defendant does not dispute he had notice of the bubble gum incident. 

Instead, defendant seizes on the prosecutor’s use of the word “touching” in seeking to 

amend the information with the 2002 dates for counts 1 and 2 based on “the touching 

start[ing] in the [third] grade.” Defendant suggests that in using the word “touching,” the 

prosecutor must have been referring to the generic pattern of abuse because she did not 

refer to the bubble gum incident specifically. Therefore, defendant reasons that count 1 

of the amended information does not necessarily have the same basis as count 1 in the 

original complaint, and thus the amendment charges a new offense violating the 

limitations period. 

Defendant’s argument is unpersuasive for several reasons. First, in 

suggesting count 1 of the amended information charges some unspecified new offense, 
9

defendant assumes the prosecutor did not intend to charge the bubble gum incident at all. 

If true, we would not expect to see evidence of this incident at trial. It is far more likely, 

as noted, that the prosecutor intended count 1 of the amended information and the 

original complaint to refer to the bubble gum incident, since it garnered special mention 

in both the pretext call and the preliminary hearing testimony. At closing argument, the 

prosecutor specified count 1 referred to the bubble gum incident. Defendant offers no 

alternative suggestion what the basis of the allegedly brand-new charge in the amended 

information might be. 

Second, defendant’s parsing of the word “touching” as referring only to the 

pattern of abuse contradicts the meaning of the term, which reasonably refers to both the 

illicit touching in the bubble gum oral copulation incident and the later general abuse. 

Notably, the prosecutor amended both counts 1 and 2 to add the 2002 date, presumably 

because the evidence at the preliminary hearing suggested both the bubble gum incident 

and the pattern of general abuse may have begun as early as 2002. Third, while the trial 

court did not specify its reasoning for approving the amended information, we must view 

the record and make all inferences in favor of the judgment. (Denham v. Superior Court

(1970) 2 Cal.3d 557, 564.) We see nothing in the record to suggest count 1 of the 

amended information charged a new offense; consequently, defendant’s statute of 

limitations claim is without merit. 

B. Due Process

In contrast, defendant’s due process challenge requires reversal of his 

conviction on count 2 because the trial court erroneously allowed the prosecution after 

the close of evidence to amend the information and extend the charging range on that 

count an additional two years (from 2004 to 2006). Notably, the amendment extended 

the charging range into a period of time the testimony at the preliminary hearing 

disavowed any abuse occurred. 
10

The Attorney General again asserts forfeiture because defendant apparently 

interposed only a general objection to the amendment, rather than the due process 

grounds he now asserts. The record, however, shows defendant objected, but does not 

illuminate the basis for defendant’s objection. The record reflects only the trial court’s 

ruling that “I’m going to grant the motion over the objection of the defense.” In any 

event, it appears the trial court may have believed there was no obstacle to amending 

count 2 so long as Doe 1 was still under the age of 14 through the extension of charges 

into 2006. Doe was still under 14 in 2006, so an objection would have been futile.

Due process does not prohibit generic pleading of sex crimes, but “the 

‘modern answer’ to . . . how [a] defendant can prepare a defense against nonspecific 

molestation charges ‘is that, at a minimum, a defendant must be prepared to defend 

against all offenses of the kind alleged in the information as are shown by evidence at the 

preliminary hearing to have occurred within the timeframe pleaded in the information.’” 

(Jones, supra, 51 Cal.3d at p. 317, italics added.) The information “has a ‘limited role’ of 

informing [the] defendant of the kinds and number of offenses,” while “‘the time, place, 

and circumstances of charged offenses are left to the preliminary hearing transcript,’ 

which represents ‘the touchstone of due process notice to a defendant.’” (Id. at p. 312.) 

“An 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.” (§ 1009, italics added.)

Two cases exemplify reversal is required where amendments effectively 

add new offenses to an information, based on incidents not shown at the preliminary 

hearing. In People v. Graff (2009) 170 Cal.App.4th 345 (Graff), the amendment added 

two specific instances of masturbation (Graff, at pp. 351, 367), and in People v. 

Dominguez (2008) 166 Cal.App.4th 858 (Dominguez), the amended date range included a 

particular incident in which the defendant allegedly took the victim’s car without 

permission (Dominguez, at pp. 862, 866). In each case, the amendment required reversal 
11

on due process grounds for lack of notice of what amounted to a new offense, prejudicing 

the defendant’s ability to defend against surprise charges.

The same is true here. Detective Colmer’s testimony at the preliminary 

hearing identified two categories of abuse involving Doe 1 while he was under age 14: 

first, the bubble gum oral copulation incident, and secondly, a continuing pattern 

thereafter of oral sex, mutual masturbation, showering together, and anal sex. According 

to Colmer, who offered the only testimony at the preliminary hearing, both categories of 

abuse occurred at the residence on Mark Twain Road. Doe 1 and his family moved in 

2004 from that residence to the Ashwood Apartments on Hemlock Street, and lived there 

until 2006. 

Importantly, Colmer testified unequivocally that “there was no sexual 

contact” between defendant and Doe 1 in the 2004 to 2006 period when Doe 1 lived on 

Hemlock, and no evidence at the preliminary hearing suggested otherwise. Presumably 

that is why the prosecutor in the complaint and all charging instruments until the posttrial 

amendment listed 2004 as the end date for the charges in counts 1 and 2. But at trial, 

Doe 1 testified that, after the bubble gum incident, no further abuse occurred at the Mark 

Twain Road residence. Instead, Doe 1 explained the subsequent sex acts between 2004 

and 2006 took place in the apartment on Hemlock Street. Colmer, however, testified at 

the preliminary hearing that no abuse occurred during that period. 

The Attorney General argues the trial court did not err in allowing the 

prosecutor to amend count 2 after the close of evidence to extend the period alleged from 

2004 to 2006, to conform to Doe 1’s trial testimony. Relying on the general principle 

that “generic child molestation charges by no means deprive the defendant of a 

reasonable opportunity to defend” (Jones, supra, 51 Cal.3d at pp. 317, 320), the Attorney 

General argues that a defendant is not entitled to notice of the specific location of a 

charged offense.
12

But as Jones explained, the defendant is entitled to notice at the preliminary 

hearing of the “‘time, place, and circumstances of charged offenses.’” (Jones, supra, 

51 Cal.3d at p. 312.) Due process requires no less, and precludes amending the 

information to charge conduct not shown at the preliminary hearing. (Ibid.; § 1009.) The 

change in Doe 1’s testimony from Colmer’s preliminary hearing testimony that formed 

the basis for count 2 was not a minor discrepancy of dates or location, but a radical 

difference in time and place. The testimony at the preliminary hearing expressly 

disavowed any abuse occurred when Doe 1 lived at the Ashwood Apartments, and hence 

ruled out the 2004-2006 period as a basis for charges in count 2. But that was the very 

time frame to which the prosecutor amended count 2 after the close of evidence. 

The Attorney General suggests defendant was not prejudiced by the 

amendment because his defense “did not involve individual rationales for each instance 

of abuse, as in Graff, but simply a blanket denial that he did not molest John Doe 1 until 

Doe 1 was 14 years old.” But amending the charging dates to a period and place 

disavowed by the evidence presented at the preliminary hearing denied defendant a 

meaningful opportunity to investigate the charges and prepare his defense. He had no 

opportunity to consult the calendar, a diary, or otherwise try to reconstruct dates to 

determine if he even visited Doe 1 at the Hemlock Street address. Similarly, with the 

amendment coming after the close of evidence, he had no opportunity to attempt to recall 

or reconstruct the circumstances of when Doe 1 may have visited him at his apartment, or 

to develop evidence casting doubt on Doe 1’s account. Here, precisely because the pre2004 and 2004 to 2006 dates were so closely tied to specific locations, i.e., the Mark 

Twain Road residence and later Ashwood Apartments, respectively, the abuse allegations 

identified by Colmer at the preliminary hearing were similar to the specific instances of 

abuse in Graff and the specific vehicle-taking in Dominguez. As in those cases, the 

belated amendment to add what amounted to a new abuse allegation in a new location in 

a new date range violated due process and requires reversal of count 2. 
13

C. Sentencing Issues

The Attorney General concedes the sentencing minute order and the 

abstract of judgment must be corrected to reflect that the trial court did not impose a 

concurrent one-year term based on the jury’s finding of substantial sexual conduct under 

section 1203.066, subdivision (a)(8). The court imposed no such term, nor could it, 

because that section defines neither an offense nor an enhancement, but instead by its 

terms operates to preclude probation or a suspended sentence. These matters, however, 

are mooted in this appeal by the necessity of resentencing on remand.

The Attorney General also concedes defendant’s sentence on count 9 

(§ 288.3, subd. (a)) must be corrected to reflect a four-month term. The trial court 

imposed eight months as one-third the midterm of two years for the intended target 

offense of persuading a minor to perform a prohibited act. (§ 311.4, subd. (c).) But the 

punishment for contacting a minor with the intent to commit a sexual offense is the 

prison term “prescribed for an attempt to commit the intended offense.” (§ 288.3, 

subd. (a), italics added.) Because attempts are punishable by half the ordinary term of 

imprisonment (§ 664, subd. (a)), a sentence of one-third the midterm on count 9 is four 

months. Again, however, this issue is mooted and not subject to correction on appeal 

because defendant must be resentenced. 
14

III

DISPOSITION

Defendant’s conviction and sentence on count 2 are reversed, and the 

matter is remanded for resentencing. The judgment is affirmed in all other respects.

ARONSON, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.