Background
Joshua Isaac Hernandez was convicted by a Tulare County jury of 32 crimes involving the sexual abuse of his underage niece over several years, beginning when she was eight years old. The information as tried charged 26 counts: one count of sexual intercourse or sodomy of a child 10 years of age or younger, four counts of oral copulation or sexual penetration of a child 10 or younger, 20 counts of committing a lewd or lascivious act on a child under 14, and one count of possessing child pornography. Following a midtrial amendment to conform to proof, the jury convicted him of one count of sexual intercourse or sodomy of a child 10 or younger, 11 counts of oral copulation or sexual penetration of a child 10 or younger, 19 counts of lewd or lascivious acts on a child under 14, and one count of possessing child pornography. The jury also found true allegations of substantial sexual conduct with a victim under 14 as to counts 13 through 28.
In a bifurcated proceeding, the trial court found true aggravating factors that the victim was particularly vulnerable, that the crimes indicated planning and sophistication, and that defendant took advantage of a position of trust. The court imposed a total term of 145 years to life, consisting of a mandatory 25-years-to-life term on count 1, consecutive mandatory 15-years-to-life terms on counts 2, 3, 6 through 8, and 10 through 12, concurrent 15-years-to-life terms on counts 4, 5, and 9, concurrent middle terms of six years on counts 13 through 30, and a concurrent two-year term on count 32.
On appeal, Hernandez raised a single claim: that trial counsel rendered constitutionally ineffective assistance by failing to object when the prosecution moved during trial to amend the information to add seven additional counts under Penal Code section 288.7, subdivision (b). He argued the midtrial amendment deprived him of fair notice and that, had counsel objected, the trial court would have been required to deny the amendment.
The Court’s Holding
The Court of Appeal rejected the ineffective-assistance claim and affirmed. Applying the two-pronged Strickland standard, the court emphasized that counsel's performance is reviewed with a strong presumption of competence and that deciding whether to object is inherently tactical. The court found no affirmative evidence that counsel lacked a rational tactical purpose for declining to object after reviewing the amended information.
The court distinguished the sentencing-allegation cases on which Hernandez relied—Mancebo, Anderson II, and Vaquera—noting that those cases involved unpled sentencing enhancements of which the defendants had no notice before the close of evidence or sentencing. Here, by contrast, the prosecution provided notice via a formal request to amend during trial, and the new charges were supported by evidence introduced at the preliminary hearing, which the court described as the touchstone of due-process notice under section 1009.
The court also rejected Hernandez's reliance on juvenile delinquency cases, explaining that section 1009 expressly permits amendment in adult criminal proceedings so long as the offense was shown by preliminary-examination evidence, whereas juveniles have no right to a preliminary hearing. Because the preliminary-hearing evidence supported the new charges and Hernandez conceded his trial defense was not affected, he failed to demonstrate error by counsel, and the court declined his invitation to forge a new path in the law.
Key Takeaways
- A prosecutor may amend an information during trial to add charges supported by preliminary-hearing evidence without violating due process, even if the amendment significantly increases the defendant's potential sentence.
- Trial counsel's failure to object to such an amendment does not constitute ineffective assistance where the record shows no lack of tactical purpose and the new charges did not require a different defense theory.
- Sentencing-enhancement notice cases such as Mancebo, Anderson II, and Vaquera are distinguishable from midtrial amendments to add substantive charges because the former involve unpled allegations that increase punishment without formal amendment.
- Juvenile delinquency cases limiting midtrial amendments do not apply to adult criminal proceedings, where Penal Code section 1009 and the preliminary hearing provide the framework for due-process notice.
- Speculation that a defendant might have accepted a plea bargain had counsel objected to an amendment is insufficient to establish prejudice on direct appeal.
Why It Matters
The decision reinforces the broad discretion trial courts have under Penal Code section 1009 to permit amendments to conform to proof at trial, provided the charges were shown by preliminary-hearing evidence. It clarifies that the constitutional fair-notice concerns animating sentencing-enhancement cases do not translate to the context of substantive charges added through formal amendment procedures.
For practitioners, the case underscores the difficulty of establishing ineffective assistance on direct appeal based on counsel's failure to object, particularly where the objection would have been futile or where the record does not affirmatively demonstrate the absence of a tactical reason. It also highlights the critical distinction between cases where the defendant waived a preliminary hearing—where amendment is barred—and cases where the preliminary hearing provided the factual basis for added charges.
Read the full opinion (PDF) · Court docket