People v. Burnett

83 Cal. Rptr. 2d 629, 71 Cal. App. 4th 151, 99 Daily Journal DAR 3205, 99 Cal. Daily Op. Serv. 2485, 1999 Cal. App. LEXIS 305

• Court: California Court of Appeal
• Decided: April 2, 1999
• Docket: A077450, A085569
• Status: Published

Opinions

Opinion

KLINE, P. J.

Kim Harold Burnett appeals from a conviction of being a felon in possession of a firearm. He raises a number of challenges based on the underlying claim that he was tried for an offense different from the one charged in the information and addressed by the evidence at the preliminary hearing. We will conclude his conviction must be reversed due to ineffective assistance of counsel. We will additionally grant the related petition for writ of habeas corpus filed after oral argument on the appeal.

Statement of the Case

Appellant was charged by information filed on May 31, 1996, with one count of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1))¹ and one count of brandishing a firearm (§ 417, subd. (a)(2)). Both offenses were alleged to have occurred on or about January 8, 1996, at Bay Point in Contra Costa County. The first count specifically alleged that appellant possessed a “.38 caliber revolver.” The information further alleged that appellant had suffered two prior convictions within the meaning of section 1170.12 and had served seven prior prison terms within the meaning of section 667.5, subdivision (b).

Appellant pleaded not guilty and denied the priors. On August 14, 1996, the first day of trial, the court bifurcated trial on the priors. Appellant waived his right to a jury trial on the prior alleged in count 1 and, over objection, the court granted the prosecution’s motion to amend count 1 by striking the words “.38 caliber” from the information. The court denied a defense request for an Evidence Code section 402 hearing on the relevance of testimony by prosecution witness Mark Daniels.

On August 21, 1996, the jury found appellant guilty of being a felon in possession of a firearm and not guilty of brandishing. Appellant waived his right to a jury trial on the prior conviction and prison term allegations and, after a hearing, the court found the allegations true.

On February 19, appellant, in proprio persona,² filed motions to set aside the jury’s verdict, to dismiss the count of which appellant was convicted, to reduce the offense to a misdemeanor, and to strike prior convictions. These motions were denied on February 21.

At sentencing on February 21, 1997, the prosecutor noted that one of the seven charged prior prison terms had been served concurrently with another. Appellant was sentenced to a prison term of thirty-one years to life, consisting of twenty-five years to life on count 1 plus six consecutive one-year terms for six of the section 667.5 priors. Appellant filed a timely notice of appeal on February 27, 1997.

After oral argument in this court, the parties were requested to supplement their briefing of the issue of ineffective assistance of counsel, one of the issues raised on the appeal. In addition to complying with this request, on January 22, 1998, appellant filed a petition for writ of habeas corpus claiming ineffective assistance of counsel and offering the supporting declaration of trial counsel. We ordered the petition to be considered with the appeal and subsequently issued an order to show cause, returnable before this court.

Statement of Facts

Mark Daniels, testified that on Thursday, January 4, 1996, appellant asked to stay at his house on Inlet Drive in Bay Point, Contra Costa County, for a couple of days because he and his wife were not getting along. Daniels had known appellant for about 15 years, having previously been married to a cousin of appellant’s. Appellant showed Daniels a gun which Daniels took away, explaining that he had children in the house and did not want any accidents. Daniels locked the gun in a closet and locked the bullets he took out of it in a file cabinet. He described the gun as a blue steel Ruger Security Six or Speed Six, a .357 magnum revolver, with an unusual hammer that lacked a thumb catch.

On Sunday, January 7, Daniels told appellant he had to leave the next day. That same day, Daniels returned the gun and bullets to appellant and drove him to his Concord apartment. A couple of hours later, appellant called, told Daniels he and his wife were quarreling, and asked for a ride back to Daniels’s neighborhood, where he would stay with someone else. When Daniels picked appellant up, appellant appeared to have had a few beers; his speech was slurred. Appellant volunteered that he had left his gun at home. Daniels dropped appellant off at the front of Daniels’s house and went inside to make dinner. About 7:00 or 7:30 p.m., as Daniels was about to sit down to eat, two of his neighbors, Bill Wallace and Walter Weighill, came by looking for appellant. They were very angry; Daniels did not see a weapon on either of them. Appellant was not on Daniels’s property and Daniels did not see him again that night. About 10:00 p.m., as Daniels was getting ready to go to bed, he heard three gunshots. He called the police, who offered to send a patrol car by the house. Daniels, whose house did not have a doorbell, did not hear anyone knocking on his door. The next day, Daniels asked Wallace what had happened and was told about an altercation between Wallace, Weighill and appellant. Daniels told Wallace appellant had had a gun when he came to Daniels’s house which Daniels had given back when appellant left.³

A few days later, Sheriff’s Officer David Pascoe left his card at Daniels’s house while Daniels was at work. Daniels tried to call the number on the card but was unable to get through to Pascoe. Subsequently, Michael Capuano from the district attorney’s office came to the house and Daniels gave him a taped statement.

Lisa and Walter Weighill lived with their 10-year-old daughter, Alicia, at the comer of Marina Road and Inlet Drive in Bay Point, across Inlet from William Wallace and his 10-year-old daughter, Crystal: Mrs. Weighill testified that on January 8, 1996, Alicia and Crystal came into her house and told her a man who had been around the neighborhood had urinated in front of them and made lewd comments. Mrs. Weighill knew the man they referred to as Kim Burnett and identified him as appellant. The girls were initially whispering to each other, unsure whether to tell what had happened, and Crystal appeared frightened. Shocked, Mrs. Weighill told her husband, who was startled, upset but not angry, and went out to investigate. William Wallace testified that on the evening of January 8, 1996, Crystal ran into his house, scared and excited, and said there was a man peeing in front of a house down the street who had called her and her friend “little bitches.” When Wallace went out to investigate, he saw Walter Weighill, furious and “hollering to beat the band.”

Mrs. Weighill testified that she followed her husband outside and stood at the edge of her lawn as he talked with Crystal’s father at the end of the Wallaces’ driveway across the street. The two men walked down the street to Daniels’s house, where appellant had been seen that afternoon. Wallace testified that he and Weighill went down the street and knocked on Daniels’s door but Daniels said he did not know anything about the incident and they did not see anyone in Daniels’s backyard. They figured the man had run off and went back toward their houses, where they stayed outside talking. They did not call the police.

Mrs. Weighill testified that after the men returned, Weighill went to his cousin’s house a few streets away and Wallace returned to his own house; Weighill returned about half an hour later. Weighill testified that after looking for appellant he returned to his house, got a gun he had had for about a week, and put it in the back of his pants.⁴ Wallace testified that he went inside for a minute, then came back out to talk to Weighill, who continued to be upset. As Wallace and the Weighills stood in the Weighills front yard, appellant approached on a bicycle and Mrs. Weighill said, “I believe that’s him.” Appellant had a can of beer in a bar on the handlebars and a gun sticking out of his back pocket.

Wallace testified that he walked to his side of the street, although appellant told him to stay by Weighill. Weighill put his hand at the middle of his lower back, indicating he had a weapon. Appellant threw a paper bag he was holding onto the ground and liquid splashed out. He approached to about three feet away from Weighill, who asked where he was going. The man said he was going to the “bikers’ place,” and answered affirmatively when Weighill asked, “Are you Kim Burnett?” Mrs. Weighill testified that when appellant approached he asked in a “cocky” tone of voice if they had a problem and Weighill said, “Yeah, we do.” Mrs. Weighill did not recall her husband asking appellant if he was Kim Burnett.

According to Mrs. Weighill, Wallace started to move back across the street to his house and had almost made it when appellant took out the gun, pointed it at Wallace and told him not to move. He then pointed the gun at the Weighills and said he did not want them going anywhere either. She testified that her husband was remaining calm but appellant was “a little excited.” Weighill told appellant to put the gun down and appellant laughed; Weighill put his hand to his back and told appellant, “we don’t have to do this.” This was the first time Mrs. Weighill saw her husband had a gun; he had not had a gun in his possession before this incident. Appellant put the gun back in his pocket, said, “It’s okay big fellow,” and backed up. Wallace went to his driveway and Mrs. Weighill went to her house to keep the girls inside. When she came back out, Weighill and appellant were talking. Appellant said, “Those little bitches are lying.” Mrs. Weighill went to her neighbor’s to use the telephone, as the Weighills did not have one, but no one was home. When she returned, appellant picked up his bicycle and started up the street.

By Wallace’s account, appellant and Weighill got into a heated argument. Appellant pulled out a gun, stuck it in Weighill’s face and said, “I can settle this.” Wallace backed in between his two cars. Appellant put his gun away and when Wallace came back a bit onto the sidewalk said, “I creep around a little fast with this thing,” turning and pointing the gun “to” (but not “at”) Wallace. Appellant and Weighill argued for about 10 minutes; the gun was out for only a short portion of this time. Wallace did not see Weighill pull out a gun. The argument ended after Weighill said, “Let’s call the cops.” Appellant said, “No, let’s not call the cops,” then said, “everything cool, everything cool?” and left. Wallace did not call the police.

According to Weighill, appellant approached and asked if they had a problem, to which Weighill replied they did. Appellant pulled a gun on Weighill, who reached for his own weapon but did not show it; Wallace moved to appellant’s right and kept him distracted while Weighill told him they had a problem because appellant had been threatening Weighin’s children. Weighill testified that appellant kept the gun pointed at him throughout the six or seven minutes of their conversation, then put it in his back pocket and rode away.

Mrs. Weighill testified that after appellant left, Wallace returned to his house; Weighill came inside, then went up the street a few houses and returned again. About two minutes after he was back in the house, they heard two gunshots. Wallace testified he heard three shots fired on the street behind his house about twenty minutes after appellant left. The Weighills, Wallace and another neighbor came outside; Wallace testified Weighill still had his gun. A sheriff’s deputy arrived (about two minutes later according to Mrs. Weighill, within five minutes, according to Weighill, or about ten or fifteen minutes later according to Wallace) and they reported the incident. Wallace testified he did not hide the fact Weighill had a gun or tell the police appellant had pointed the gun at Wallace. Wallace testified he told the police he could not identify appellant because he did not get a good look at his face as appellant’s back was to him. Mrs. Weighill testified that the deputy left, then about 10 minutes later 2 deputies returned and talked with the Weighills and the girls. They did not hide the fact Weighill had a gun, which was on the back of the couch. Mrs. Weighill did not tell the deputies her husband had drawn his gun. She testified that her husband was angry when he was talking to the police.

Mrs. Weighill described the gun in appellant’s possession as having a brown handle, a dark black barrel and a thumb grip. Weighill testified that the gun looked like a .38-caliber revolver. Wallace described the gun as a blue steel .38-caliber revolver with about a two-inch barrel and a dark rose-colored teardrop-shaped wooden handle.

The next day, Wallace told Daniels about the incident. Daniels did not say he had seen appellant with a gun or taken and then given the gun back to appellant. Wallace testified that the area where the incident occurred was under a street light.

Deputy Sheriff Jim Melville was dispatched to Inlet Drive about 9:50 p.m. on January 8, 1996. When he arrived in the area, he was flagged down by Mrs. Weighill, who told him about the incident with appellant. Walter Weighill, who sounded excited, upset and frustrated, told Melville appellant had pointed a .38-caliber revolver at him. Melville looked around the area for appellant but did not find him. Weighill never told Melville he had a gun that evening.

Deputy Fithian, the second officer on the scene, testified that Weighill told him he had pointed his weapon at appellant. Weighill also told Fithian he knew appellant was on parole and wanted appellant back in prison. Fithian testified Wallace told him on the night of the incident that he could identify appellant’s face.

Detective David Pascoe began to investigate this case a couple of days after January 8,1996. Wallace told Pascoe appellant had not pointed a gun at him and said he could not identify appellant because he had not seen his face. He identified the gun in appellant’s possession as a .38 with a two-inch barrel. Pascoe went to Daniels’s house after being advised by Weighill that Daniels might have information pertinent to the case; he left his card, with his current phone number, but subsequently learned the telephone system was not operating properly so that he was not receiving incoming calls.

Criminalist Richard Schorr testified that Ruger manufactures revolvers called the Security Six and Speed Six. It also makes a gun called an SP101 which does not have a spur on the hammer. The Security Six, no longer manufactured, came in six-inch or four-inch barrel lengths. Ruger Security Six revolvers were not manufactured with the hammer shaved down. Schorr testified that gunsmiths have been known to remove the spur of the hammer on guns, although he had never seen one altered in this way. A person familiar with firearms could tell the difference between a Ruger Security Six and a Smith & Wesson snubnose.

On January 25, 1996, Deputy Sheriff Joseph Kosmicky saw appellant drive past about 3:41 p.m. Kosmicky tried to catch up with appellant, putting on his lights, because he believed there to be an outstanding warrant for appellant’s arrest. Kosmicky lost appellant in traffic, then saw him running, with his car parked. Kosmicky yelled for appellant to stop and appellant looked back, jumped over a fence and continued. He was not apprehended.

On January 29, 1996, about 6:41 a.m., Deputy Sheriff Duane Sturentz went to an address in Oakley along with other officers to execute an arrest warrant for appellant. Appellant attempted to flee from the rear window of the one-story house. Sturentz told him to freeze and another deputy pulled him out the window. Appellant hit the ground face first and complained that he hurt his neck. He was taken to the jail and then to the hospital.

Defense

Barry Strock testified that he had known appellant about 20 years. Appellant stayed overnight at Strock’s house about seven or eight days in December 1995 and January 1996. Strock never saw appellant in possession of a firearm and would not have allowed him to stay if he had, because Stock had children, was an ex-felon himself and knew he could go to jail and lose his children if he had a firearm in the house. Strock acknowledged on cross-examination that he had not been in Bay Point from New Year’s through January 8, 1996, and did not personally know whether appellant had a firearm in that area during that period of time.

Appellant testified that he had been staying at Daniels’s house for about three days before January 8, 1996. During the night of January 7, while appellant was sleeping on the couch, Daniels woke him up and asked appellant to go to bed with him. Appellant refused. About 3:30 or 4:00 p.m. on January 8, appellant went outside Daniels’s house to urinate because the bathroom was occupied. He attempted to conceal himself, standing with his back to the street in an area with heavy shrubs. Some kids, however, came to see what he was doing. He told them to “get out of here.” They took off, then returned; appellant zipped his pants and made a “rude” statement to them: “Hey, next time you guys want to look, go get $20 from your brother because mine is this big. Now get out of here.”

At 5:30 p.m., Daniels returned from work and told appellant he could not stay at the house any longer. Appellant asked for a ride to his wife’s house in Concord and Daniels dropped him off there. Appellant’s wife told him he could not stay; upset, appellant went for a long walk. He then called Daniels and asked for a ride back to Daniels’s" neighborhood, where appellant thought he could stay with a friend. On the drive back, Daniels made another pass at appellant and said appellant could stay at his house as long as he wanted if appellant went to bed with him. Appellant got angry and cursed at Daniels. Daniels dropped appellant off at his friend’s house but appellant discovered no one was awake. Appellant then rode his friend’s bicycle to another friend’s house, where he visited but learned the house was full.

Appellant rode toward the “Club House” on Inlet Drive, a neighborhood club house. As he rode on Inlet, he heard someone say, “Hey, Kim Burnett. Are you Kim Burnett?” Two men and a woman were standing by a house. Appellant stopped and said, “Yeah, I’m Kim Burnett. Who wants to know?” Appellant did hot know anyone was looking for him or had any reason to be upset with him. One of the men, who appellant later learned was Wallace, came and stood in the street about eight or nine feet from appellant with his hand behind his back. The others, the Weighills, remained on the lawn about 30 feet away. Appellant said he did not know what the problem was and did not want any problems. Weighill said, “I think you and me do have a problem, mother fucker. I don’t like you expressing yourself to my kids. I ought to kill you, you son of a bitch.” As he spoke, Weighill reached to his back belt area, pulled out a gun and pointed it at appellant while walking toward him. Weighill was irate. Appellant turned and rode back down Inlet as fast as he could. After three or four seconds, he heard three gunshots from behind him. Appellant went to Keith Brock’s house and spent the night there. He told Brock he had had guns pulled on him. Appellant testified that he had had three or four beers earlier in the day and was not intoxicated.⁵

Appellant testified he was not in possession of any firearm at any time during this incident. He was on active parole, one of the conditions of which was not having a firearm. Appellant, whose criminal history included convictions for robbery, burglary, assault, selling methamphetamine, being in possession of a firearm, and resisting arrest, knew that because of the Three Strikes law, carrying a weapon could result in life imprisonment. He had last spoken with his parole officer in December, before the officer went on vacation; appellant and his wife were having problems and appellant was calling the parole office and leaving messages with the secretaries as to where he was going to be staying. He was not aware there was a parole warrant out for his failure to report.⁶

A couple of days after the January 8 incident, appellant learned from Daniels that Weighill and Wallace had been looking for him and had said he had a gun; appellant told Daniels they had pulled a gun on him. Appellant then learned from his parole officer that he faced a potential Three Strikes sentence because someone had said he had a gun. After he learned there was a parole warrant out for him, appellant did not turn himself in because he was not “in a big hurry to go to jail for the rest of [his] life for something [he] didn’t do . . . .” Appellant denied ever having a gun at Daniels’s house and stated Daniels’s testimony in this regard was not true. Appellant also denied ever having a gun at his wife’s house, noting this was his parole address and he was subject to search of that residence at all times. He denied obtaining a weapon between the time he left Daniels’s house for Concord and the time he was bicycling on Inlet Drive. He testified the testimony about his arrest was substantially correct. His neck was sprained when he was pulled out of the window by the police.

Deputy Sheriff Kenneth Fithian, the second officer to arrive at the scene on Inlet Drive on January 8, 1996, interviewed the Weighills on their front porch. Weighill said appellant had pulled a gun on him and he had pointed his gun at appellant; Mrs. Weighill never contradicted her husband’s statement that he had pulled a gun on appellant. Weighill described appellant’s gun as a blue steel .38-caliber with a two-and-a-half-inch barrel and brown wooden grips. Weighill told Fithian appellant was on parole and he wanted appellant back in prison. Wallace told Fithian he had clearly seen appellant’s face and believed he could identify appellant. Fithian knocked on the door of Daniels’s house but got no reply and did not leave a card.

Discussion

Appellant contends his conviction must be reversed because he was tried for an offense not shown by the evidence at the preliminary hearing— possession of the .357-caliber revolver Daniels described taking from appellant and returning to him when he drove appellant back to Concord on the evening of January 8. The evidence at the preliminary hearing addressed only the January 8 incident involving the altercation between the Weighills and Wallace, in which appellant allegedly possessed and brandished a .38-caliber revolver. Daniels did not testify at the preliminary hearing, and no evidence presented at the preliminary hearing suggested appellant had possessed a different gun at a different time on January 8. According to appellant, the amendment of the information to delete the words “.38 caliber” allowed the prosecutor to urge, as she did in closing argument, that appellant could be convicted of the charged offense if he possessed either the gun observed by the Weighills and Wallace during the altercation by the Weighills’ house or the gun Daniels claimed he took from and returned to appellant when appellant stayed at his house.

Article I, section 14, of the California Constitution provides in pertinent part: “Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.” Our Constitution thus requires that “one may not be prosecuted in the absence of a prior determination of a magistrate or grand jury that such action is justified.” (Jones v. Superior Court (1971) 4 Cal.3d 660, 666 [94 Cal.Rptr. 289, 483 P.2d 1241].) “Before any accused person can be called upon to defend himself on any charge prosecuted by information, he is entitled to a preliminary examination upon said charge, and the judgment of the magistrate before whom such examination is held as to whether the crime for which it is sought to prosecute him has been committed, and whether there is sufficient cause to believe him guilty thereof. These proceedings are essential to confer jurisdiction upon the court before whom he is placed on trial.” (People v. Bomar (1925) 73 Cal.App. 372, 378 [238 P. 758].)

Section 739 provides in pertinent part: “When a defendant has been examined and committed . . . , it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.” “ ‘ [A]n information which charges the commission of an offense not named in the commitment order will not be upheld unless (1) the evidence before the magistrate shows that such offense was committed [citation], and (2) that the offense “arose out of the transaction which was the basis for the commitment” on a related offense. [Citations.]’ ” (0People v. Pitts (1990) 223 Cal.App.3d 606, 903 [273 Cal.Rptr. 757], quoting Jones v. Superior Court, supra, 4 Cal.3d 660, 664-665.)

An indictment or information may be amended by the district attorney at any time before the defendant pleads, and the court may allow amendment of the accusatory pleading “for any defect or insufficiency, at any stage of the proceedings.” (§ 1009.) Section 1009 provides, however, that “[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.”

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. In People v. Fyfe (1929) 102 Cal.App. 549, 553, 555 [283 P. 378], upholding the trial court’s dismissal of charges not shown by the evidence at the preliminary healing, this court stated: “The clear purpose of these enactments is to give the accused a preliminary hearing either before a grand jury or before a committing magistrate, and to deny to the district attorney the right to force a defendant to trial before a jury upon an information which is not within the scope of the evidence taken, [¶] . . . [¶] . . . In declaring that an information ‘cannot’ be amended so as to charge an offense not shown by the evidence taken at the preliminary examination, the terms of the section are mandatory. They are in whole harmony with the provisions of section 8 of article I of the Constitution [now section 14] requiring an examination and commitment by a magistrate as a prerequisite to the filing of an information by the district attorney.”

In People v. Kellin (1962) 209 Cal.App.2d 574 [25 Cal.Rptr. 925], the defendant was charged with grand theft on or about November 10, 1960; the evidence at the preliminary hearing showed theft of a $2,093 check on November 10, 1960. At trial, the prosecution offered evidence of theft of three additional checks on October 23 and December 8. After the prosecution’s case, the district attorney successfully moved to amend the information to charge theft “ ‘on or about the 28th day of October through the 28th day of December, I960.’ ” (Id., at p. 575.) Reversing the conviction, Kellin held the amendment “allowed the defendant to be charged and perhaps convicted of an offense not shown by the evidence at the preliminary examination.” (Id., at p. 576.) The court noted that each of the checks represented a “separate and distinct transaction,” not related to the check which was the basis of the order of commitment after the preliminary hearing and offered to show a distinct theft. (Ibid.)

In People v. Winters (1990) 221 Cal.App.3d 997 [270 Cal.Rptr. 740], the defendant was charged with possession for sale of methamphetamine and waived his right to a preliminary hearing. During trial, the prosecution was permitted to amend the information to add a charge of transportation of methamphetamine. The appellate court reversed the transportation conviction, even though the evidence showed this offense arose out of the same incident as the possession charge: “We acknowledge that respondent’s motion to amend the information to add a count for transportation of methamphetamine may have come as no surprise to appellant and would have conformed the information to the proof at trial, as respondent argues here and argued below. It seems to us that is not the point nor helpful to respondent. Section 1009 specifically proscribes amending an information to charge an offense not shown by the evidence taken at the preliminary hearing. This role has remained virtually unchanged for over 80 years.” (221 Cal.App.3d at p. 1007.) In Winters, because there was no preliminary hearing, the prosecution could not amend the information to add a new charge.

In People v. Pitts, supra, 223 Cal.App.3d at pages 903-908, multiple defendants were charged with numerous sexual acts against a number of children. The Pitts court reversed convictions on some 47 counts as to which evidence of the specific act charged was not adduced at the preliminary hearing of the defendant charged. Pitts rejected the argument that “due process is satisfied as long as the preliminary hearing evidence shows five violations of a statute and the evidence at trial shows the same number of violations of the same statute, regardless of the particulars. Such a holding would basically do away with use of the preliminary hearing transcript as a means for giving fair notice. This is not the law; a preliminary hearing transcript affording notice of the time, place and circumstances of charged offenses “ ‘ “is the touchstone of due process notice to a defendant.” ’ ” (223 Cal.App.3d at p. 908, quoting People v. Jeff (1988) 204 Cal.App.3d 309, 342 [251 Cal.Rptr. 135].)

People v. Levy (1973) 31 Cal.App.3d 427 [107 Cal.Rptr. 384], granted a writ of prohibition to prevent trial on an information that had been amended, after a mistrial, to allege a count of ex-felon in possession of a gun although no evidence of the prior felony had been presented at the preliminary hearing. Similarly, in People v. Firestine (1968) 268 Cal.App.2d 533 [74 Cal.Rptr. 168], the trial court properly set aside an information which inadvertently repeated two charges from an earlier information rather than setting out two distinct offenses of the same types shown by the evidence at a second preliminary hearing. Because of the prosecutor’s error, the information in fact charged offenses not shown by the evidence at the relevant preliminary hearing.

In the present case, the evidence presented at the preliminary hearing showed only one incident, that described by Wallace and the Weighills, and the prosecutor initially tried the case on the theory appellant had possessed a single gun, observed both by Wallace and the Weighills and (at a different time and location) by Daniels. The jury, however, was ultimately informed appellant had possessed two different guns and could be convicted based on either the Wallace/Weighill incident or on the discrete incident described by Daniels.

The original information charged appellant with possession of a “.38 caliber revolver.” In granting the prosecution’s motion to amend the information to delete the words “.38 caliber,” the trial court noted, “There will be no additions simply the striking of the ‘.38 caliber.’ ” When the defense asked for a hearing on the relevance of Daniels’s testimony, explaining that from the information the prosecution had provided in discovery, “it sounds like we’re talking about a different gun,” the prosecutor argued that the gun described by Daniels was a revolver that “looks like a .38 caliber.” In her opening statement, the prosecutor implied that appellant had possessed a single gun on January, seen both by Daniels (who had taken and then given it back to appellant) and by the Weighills and Wallace (in the altercation on the lawn). The prosecutor told the jury the case was about whether appellant had illegally possessed a revolver and whether he brandished “it” in an aggressive and threatening manner. Defense counsel, in his opening statement, urged appellant never possessed any gun on January 8, stressing the different descriptions given of the guns and suggesting the witnesses had fabricated their story. Up to this point, it appeared that appellant had been charged with, and was being prosecuted for, a single incident of possession of a firearm, witnessed by several different people.

At trial, as indicated above, the evidence given by the prosecution witnesses showed two different guns possessed in two different incidents. Daniels testified he took a gun away from appellant when appellant came to stay at his house, then returned it before driving appellant to Concord on January 8. The Weighills and Wallace testified that appellant had a gun and pointed it at them during the altercation on the Weighills’ lawn later in the evening of January 8. The witness descriptions clearly indicate Daniels saw a different weapon than did Wallace and the Weighills. Daniels described the gun as a .357 magnum Ruger Security Six or Speed Six revolver while Wallace and Weighill testified they saw appellant with a .38-caliber revolver; Daniels testified the gun he saw was a model with a four-to six-and-a-half-inch barrel while Wallace and Weighill testified the barrel of the gun they saw was two inches long; Daniels described the gun’s hammer as having no thumb catch while Mrs. Weighill testified the gun she saw had a thumb catch on the hammer; and Daniels identified the gun as similar to pictures of a Ruger Security Six, with a rectangular handle, while Wallace described a Derringer or teardrop-shaped rounded handle.

Before closing arguments, the prosecutor asked the court to give a jury instruction on unanimity (CALJIC No. 17.01), stating, “There could be 12 that say we don’t believe Wallace and the Weighills. We believe Mark Daniels. There could be 12, we don’t. We need that unanimity for Count One.” The defense subsequently agreed to the jury instructions and the unanimity instruction was given.⁷

In closing argument, the prosecutor explicitly told the jury the evidence showed appellant possessed two different guns in the Daniels and Wallace/ Weighill incidents and could be convicted on the basis of either one, as long as all the jurors agreed which act the conviction was based upon: “We’re talking about two separate incidents that don’t necessarily need to be tied in together. . . . [Y]ou can all decide that the defendant may be guilty of Count 1, based upon possessing a firearm at Mark Daniels’ house, or you may think he is guilty of Court 1 and Count 2 because not only did he have the firearm at Mark Daniels’ house, but he had it with Wally Weighill’s, that he also brandished. . . . [A]ll 12 of you have to agree that the defendant possessed a handgun around Mark Daniels or all 12 have to agree he had a handgun, or all 12 could believe he had it with both. . . . You may find, if, on the fact that he had it with Mark Daniels, you may find it with the Wallaces or Weighills. But all 12 have to agree as to which particular group. ... I don’t ever have to prove . . . I’m not trying to prove these were the same guns. I submit to you that the defendant had a Rugar Secure 6 or some type of similar revolver when Mark Daniels took it away and gave it someone at the home, and he probably had another caliber a little bit later, but naturally he didn’t have it — that gun when he came back with Mark Daniels.” The prosecutor suggested appellant got rid of the gun Daniels returned to him, then got a different gun and returned to Inlet Drive. Similarly, in her rebuttal argument, the prosecutor told the jury: “He had a revolver with Mark Daniels. Something like a Rugar 6, and he had a .38 caliber that he pointed at the Weighills and Wallaces.”⁸

There can be no question that the evidence in this case showed two completely different incidents, involving two separate weapons, that could have supported two charges of violation of section 12021, subdivision (a), if the prosecution had chosen to charge appellant with two counts and the charges had been sustained after a preliminary hearing. Section 12001, subdivision (k), provides: “For purposes of Sections 12021 ... of this code, . . . notwithstanding the fact that the term ‘any firearm’ may be used in those sections, each firearm or the frame or receiver of the same shall constitute a distinct and separate offense under those sections.”

Appellant, however, was charged with only one violation of section 12021, subdivision (a), and the evidence presented at the preliminary hearing portrayed only a single incident, the altercation described by Wallace and the Weighills. Accordingly, appellant was initially charged with possession of a .38-caliber revolver. Respondent (and the prosecutor below) is technically correct that the amendment of the information to delete the words “.38 caliber” did not result in a charge of an offense not shown at the preliminary hearing: The preliminary hearing testimony, of course, showed appellant was in possession of a revolver. This possession, however, was observed by Wallace and the Weighills during the altercation on the Weighills’ lawn. No hint was given at the preliminary hearing that a different witness had seen appellant in possession of a different firearm at a different time on the same date. The amendment of the information, combined with the prosecutor’s argument at trial and the jury instructions, allowed the jury to convict appellant solely on the basis of his possession of the gun observed by Daniels, even if it did not believe the testimony of Wallace and the Weighills. Had Daniels’s testimony been presented as additional evidence that appellant was guilty of the possession observed by Wallace and the Weighills — to bolster the credibility of those witnesses by demonstrating that another person had also seen appellant with the firearm that day — there would be no problem. But a conviction based on Daniels’s testimony alone would violate article I, section 14, of the California Constitution, as well as the spirit, if not the letter, of section 1009. The offense described by Daniels — possession of the .357 magnum revolver Daniels allegedly took from appellant when he came to stay at Daniels’s house and returned to appellant on January 8 — was never the subject of a preliminary hearing at which it could be determined whether there was probable cause to believe that offense had occurred.⁹

We recognize that appellant did have notice Daniels would testify he saw appellant in possession of a firearm at a different time than the Wallace/ Weighill incident: The prosecution informed appellant more than a month before trial that Daniels had seen appellant with a Ruger Security Six revolver on or around January 8, 1996. The defense was given the taped interview of Daniels by Capuano, which made clear that Daniels had not been a witness to the Wallace/Weighill incident and included Daniels’s statement that appellant did not have the revolver when Daniels picked him back up after taking him to Concord. Appellant did not, however, have notice that the district attorney intended to prosecute him for possession of the weapon observed by Daniels as a distinct offense from the possession based on the Wallace/Weighill incident. (See Gray v. Raines (9th Cir. 1982) 662 F.2d 569, 574 [defendant charged with forcible rape did not have notice of charge of statutory rape despite knowledge of victim’s age and consequent notice that he could have been charged with statutory rape].)

Respondent’s brief either misunderstands or attempts to obfuscate the issue. According to respondent, the trial court did not abuse its discretion in allowing the prosecution to delete the “surplus language” of the information describing the revolver appellant was charged with possessing as a “.38 caliber” because the witnesses at the preliminary hearing did not give a firm description of the gun. Consequently, the amendment was an immaterial change in the description of the gun appellant possessed.

The cases upon which respondent relies demonstrate the fault in this reasoning. In People v. Vance (1956) 138 Cal.App.2d 871 [292 P.2d 552], the “immaterial” amendment changed the description of the car the defendant was charged with burglarizing from “1950 Ford 4-door sedan” to “1948 Dodge 2-door sedan.” Unlike the present case, only a single incident was shown by the evidence; the defendant therefore knew the surrounding circumstances of the offense with which he was charged. In this situation, the change in description of the car was indeed immaterial. In the present case, however, the amendment, combined with the prosecutor’s argument at trial and court’s instruction, allowed appellant to be convicted based on a completely different incident than that shown by the evidence at the preliminary hearing.

In People v. Gil (1992) 3 Cal.App.4th 653 [4 Cal.Rptr.2d 697], a case respondent claims this one falls “squarely within,” the prosecution was allowed to amend the information at the end of its case to change the time periods alleged for some of the five counts of lewd conduct charged. Gil stated that the preliminary hearing evidence supported five counts of lewd conduct, two involving one victim and three involving the other. The appellate court found a “ ‘strong correspondence between the preliminary hearing testimony and dates described in the trial testimony when viewed in the light most favorable to the judgment.’ ” (Id., at p. 658.) According to Gil, the amendments permitted by the trial court were “minor” and “only slightly extended the time ranges alleged in the information,” while “[a]s to the substance of the offenses, ... the testimony at trial and preliminary hearing corresponded.” (Id., at pp. 658-659.) In the present case, Daniels’s testimony described an offense entirely separate from and unrelated to the only offense described by the evidence at the preliminary hearing.

Respondent urges that the present case also shows a “strong correspondence” between the evidence at the preliminary hearing and at trial, with the witnesses’ descriptions of the guns creating only minor discrepancies in the evidence. This argument completely ignores the fact that Daniels’s testimony was not presented simply to corroborate the weapon possession observed by Wallace and the Weighills but as a distinct and unrelated basis upon which a conviction could be based even without reference to the Wallace/Weighill incident. To the extent the jury could have convicted appellant solely for the possession observed by Daniels, which the prosecutor’s argument and court’s instructions indicated it could, the evidence upon which such a conviction would have been based was entirely different from the evidence presented at the preliminary hearing.¹⁰

Indeed, respondent’s argument directly contradicts the express position of the prosecution at trial. Respondent argues Daniels’s testimony was not offered to prove a second offense but as further evidence of a single count of possession, with discrepancies in the descriptions of the guns simply differences for the jury to consider in weighing the credibility of the witnesses. As discussed above, this simply is not the case: The prosecutor expressly told the jury the evidence showed appellant possessed two different weapons in two separate incidents on January 8, and she and the unanimity instruction informed the jury it could convict on the basis of either incident. The People may not so alter their position on appeal. (See, e.g., People v. Peters (1950) 96 Cal.App.2d 671 [216 P.2d 145] [defendant who effectively conceded cause of death at trial cannot change position on appeal to argue failure of proof by prosecution]; Horn v. Atchison, T. & S.F. Ry. Co. (1964) 61 Cal.2d 602, 605 [39 Cal.Rptr. 721, 394 P.2d 561] [defendant’s concession of liability at trial precluded appeal on issues regarding liability]; Browne v. Superior Court (1940) 16 Cal.2d 593, 597 [107 P.2d 1, 131 A.L.R. 276] [admission at oral argument that petition for writ of habeas corpus on behalf of incompetent person did not seek to free conservatee from restraint or discharge guardian but in fact was intended only to allow conservatee to move to a different location and ease restraints on her personal liberties with respect to mail and visitors constituted an abandonment of only proper ground for petition].)

Nor could the giving of a unanimity instruction remedy the problem in this case. A unanimity instruction serves to ensure jurors’ agreement as to the facts constituting an offense when the evidence shows a greater number of violations of a charged crime than the number charged. (See, e.g., People v. Avina (1993) 14 Cal.App.4th 1303 [18 Cal.Rptr.2d 511].) Here, the jurors could have agreed on one offense, but if it was the one described by Daniels, it could not legally form the basis of the conviction. Although appellant was aware of Daniels’s testimony and should have been aware this testimony could support a conviction for violation of section 12021, subdivision (a), the only offense shown by the evidence at the preliminary hearing was appellant’s possession of a .38-caliber revolver in the altercation on the Weighills’ lawn. Any possession by appellant of the .357 described by Daniels was not the subject of a preliminary hearing or magistrate’s determination of probable cause. It follows that appellant could not properly be convicted of this offense.

The dissent urges that we erroneously confuse the concepts of “offense” and “incident,” claiming the absence of evidence at the preliminary hearing regarding the Daniels “incident” does not preclude it from being used as the basis of a conviction for the “offense” of possession of a firearm by a felon. (Dis. opn., post, at pp. 190-194.) The dissent relies on a number of cases, mostly involving child molestation prosecutions, which hold that a single “offense” may be proven by evidence of a number of “incidents” or “acts,” so long as the prosecution elects which act is to be the basis of conviction or the jury is given a unanimity instruction.

These cases simply do not address the problem presented when one or more of the “acts” upon which conviction is sought was not described by the evidence at the preliminary hearing. Unquestionably, “when the evidence tends to show a larger number of distinct criminal acts than have been charged” a conviction will be upheld if the prosecution elected which act it would rely upon for each allegation or if the jury was given a unanimity instruction. (People v. Gear (1993) 19 Cal.App.4th 86, 90 [23 Cal.Rptr.2d 261]; People v. Salvato (1991) 234 Cal.App.3d 872, 879-880 [285 Cal.Rptr. 837]; People v. Moreno (1989) 211 Cal.App.3d 776, 786 [259 Cal.Rptr. 800]; People v. Gordon (1985) 165 Cal.App.3d 839, 853 [212 Cal.Rptr. 174]; People v. Dunnahoo (1984) 152 Cal.App.3d 561, 568-570 [199 Cal.Rptr. 796]; People v. Diedrich (1982) 31 Cal.3d 263, 280-281 [182 Cal.Rptr. 354, 643 P.2d 971].) These cases cited by the dissent, however, do not discuss the question of a court’s authority to convict of an offense not shown by the evidence at the preliminary hearing, presumably because none involved a claim of error on this basis.¹¹

The dissent also maintains that the evidence which must be presented at the preliminary hearing is only evidence of the “offense” charged and not “details of the particular incident upon which the offense is based.” (Dis. opn., post, at p. 194, italics omitted.) Thus, the dissent quotes the holding of People v. Jones (1990) 51 Cal.3d 294, 317 [270 Cal.Rptr. 611, 792 P.2d 643], that a “ ‘defendant has no right to notice of the specific time or place of an offense, so long as it occurred within the applicable limitation period.’ ” (Dis. opn., post, at p. 195.) To the same effect, the dissent notes the rule stated in People v. Luna (1988) 204 Cal.App.3d 726, 748 [250 Cal.Rptr. 878], disapproved on other grounds in People v. Jones, supra, 51 Cal.3d 294, 313, that “ ‘[s]o long as the evidence presented at the preliminary hearing supports the number of offenses charged against a defendant and covers the time frame or time frames charged in the information, a defendant has all the notice the Constitution requires.’ ” (Dis. opn., post, at p. 195.)

As we have discussed, however, the issue in the present case is not notice of each witness’s testimony but notice of the offense being prosecuted. Jones and Luna, like most of the other cases cited by the dissent, are sexual abuse cases involving testimony by a given victim about acts occurring over a period of time that cannot necessarily be tied to specific dates or locations. Their statements must be read in this context. Jones began its discussion by noting that “[c]hild molestation cases frequently involve difficult, even paradoxical, proof problems. A young victim . . . , assertedly molested over a substantial period by a parent or other adult residing in his home, may have no practical way of recollecting, reconstructing, distinguishing or identifying by ‘specific incidents or dates’ all or even any such incidents.” (51 Cal.3d at p. 305.) Immediately before the portion of Luna cited by the dissent, the Luna court explained: “As Justice Sims points out in his concurring opinion in People v. Gordon, supra, 165 Cal.App.3d 839, 870-871: ‘These rules make it clear that an information plays a limited but important role: it tells a defendant what kinds of offenses he is charged with (usually by reference to a statute violated), and it states the number of offenses (convictions) that can result from the prosecution. But the time, place and circumstances of charged offenses are left to the preliminary hearing transcript; it is the touchstone of due process notice to a defendant. HQ In light of the notice function played by the preliminary hearing transcript, a pros-ecutorial election is unnecessary to advise defendant of the criminal acts he must defend against. . . . [A]t 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.’ ” (204 Cal.App.3d át pp. 747-748, italics omitted.) Jones, also quoting Gordon, noted that a “defendant has no right to notice of the specific time or place of an offense, so long as it occurred within the applicable limitation period. ‘Beyond that, ... the prosecution clearly has no duty to provide more explicit notice than human nature and science permit.’ ” (51 Cal.3d at p. 317, quoting People v. Gordon, supra, 165 Cal.App.3d at p. 868.)

Jones and Luna obviously contemplate that evidence at the preliminary hearing will at least generally describe the incidents upon which criminal conduct is predicated, subject to the inherent limitations of the subject matter with which those cases dealt. The present case does not involve a single witness describing separate acts of a similar nature, but rather distinct witnesses to distinct incidents that could have been (although they were not required to be) charged as separate offenses. The prosecution began this case by claiming all the witnesses saw appellant with the same gun, on separate occasions within the same day. During the trial, after the prosecution’s case with respect to the Wallace/W eighill incident was tom apart by inconsistencies between the witnesses’ accounts and between their trial testimony and statements to the police, evidence the witnesses were angry with appellant because of the incident with their children and that Weighill came to the confrontation armed, and Weighin’s refusal to appear at trial, the prosecution totally altered its position, urging the two sets of witnesses had observed different guns and appellant could be convicted if the jury found either that he possessed the weapon described by Wallace and the Weighills or the weapon described by Daniels. “An accused person is entitled to know, as far as is practically possible, just which of his or her acts the prosecution claims were criminal. Where the prosecutor is aware that the evidence he or she plans to present will include several distinct acts, any one of which might arguably constitute the crime charged, there is no reason he or she should be allowed to play ‘hide the ball’ with the defense.” (People v. Salvato, supra, 234 Cal.App.3d at p. 880.)

It is one thing to hold, as do the cases upon which the dissent relies, that as a matter of due process, a defendant may be convicted of any offense of which he or she is given notice by the information combined with the preliminary hearing and other discovery. It is another thing altogether to hold that a defendant may be convicted upon proof of any incident giving rise to the same “offense” as charged in the information and shown at the preliminary hearing, regardless of the absence of connection between the proven incident and that shown at the preliminary hearing. We cannot believe the rule that a defendant “has no right to notice of the specific time or place of an offense, so long as it occurred within the applicable limitation period” (People v. Jones, supra, 51 Cal.3d at p. 317), stated in the context of generic testimony in cases of ongoing sexual abuse, was meant to include the situation where the prosecution changes horses in midstream by substituting a different “act” for the single “act” described by the evidence at the preliminary hearing. In the absence of any discussion in the cases of the requirement that a defendant not be convicted of an offense not shown by the evidence at the preliminary hearing, we decline to read these cases as authorizing any deviation from this rule.¹²

Respondent urges that appellant could have suffered no prejudice from the addition of the Daniels gun incident as a basis for conviction because his defense was to disclaim possession of any weapon, not solely to disclaim ownership of the type of weapon observed by Wallace and the Weighills. It is as a matter of law irrelevant whether a defendant is prejudiced by being prosecuted for an offense not shown by the evidence at the preliminary hearing. In concluding the conviction for an offense added by amendment of the information during trial had to be reversed because there had been no preliminary hearing at which evidence of the new offense was presented, the court in People v. Winters, supra, 221 Cal.App.3d at pages 1006-1007, quoted People v. Bomar, supra, 73 Cal.App. at page 378: “ ‘Neither do we think that section 4V£ of article VI of the [Constitution [now article VI, section 13] is applicable in the present case. Before any accused person can be called upon to defend himself on any charge prosecuted by information, he is entitled to preliminary examination upon said charge, and the judgment of the magistrate before whom such examination is held as to whether the crime for which it is sought to prosecute him has been committed, and whether there is sufficient cause to believe him guilty thereof. These proceedings are essential to confer jurisdiction upon the court before whom he is placed on trial. To say that he was accorded a fair trial upon an information filed against him without a substantial compliance with these jurisdictional requirements, and, therefore, that there had been no miscarriage of justice, hardly meets the situation. Such an argument would apply with equal force to the validity of the conviction upon an information filed by the district attorney in a case where no preliminary examination at all had been held. Such practice would result, in legal effect, in wiping out all provisions of the [C]onstitution and the Penal Code providing for a preliminary examination, and in clothing the district attorney with unlimited authority to file information against whomsoever in his judgment he might consider guilty of crime. We do not believe that it was ever the intention to extend the scope of section 4x/2 of article VI of the [Constitution to any such limits.’ (People v. Bomar, supra, 73 Cal.App. at p. 378, italics added.)”

Cases involving prosecutions by indictment reach the same conclusion. In Stirone v. United States (1960) 361 U.S. 212 [80 S.Ct. 270, 4 L.Ed.2d 252], the defendant was indicted and convicted of unlawfully interfering with interstate commerce in violation of a federal statute. The indictment charged an effect on interstate commerce through interference with the importation of sand into the State of Pennsylvania. The trial court then allowed the prosecution to introduce evidence of interference with steel shipments out of Pennsylvania and charged the jury the interstate commerce aspect of the case could be based on either the importation of sand or the exportation of steel. Noting the rule that “charges may not be broadened through amendment except by the grand jury itself,” Stirone held the trial court’s action had the effect of amending the indictment. (Id., at p. 216 [80 S.Ct. at p. 272].) The court held that deprivation of the defendant’s “substantial right to be tried only on charges presented in an indictment returned by a grand jury” was “far too serious to be treated as nothing more than a variance and then dismissed as harmless error.” (Id., at p. 217 [80 S.Ct. at p. 273].)

Similarly, in U.S. v. Leichtnam (7th Cir. 1991) 948 F.2d 370, the defendant was charged in an indictment with use of a specified model and type of rifle during drug trafficking. At trial, the prosecution introduced not only that rifle but also two handguns found during the same search in a different part of the defendant’s home from the rifle. The jury was instructed that the firearm count could be based on proof the defendant intentionally used or carried a “firearm,” not limited to the one specified in the indictment. Leichtnam held the introduction of the handguns, combined with the jury instructions, “impermissibly amended the indictment” and reversed the conviction. (Id., at pp. 380-381.)

Despite the clear illegality of prosecuting or convicting appellant of an offense different from and not transactionally related to the one shown by the evidence at the preliminary hearing, however, defense counsel inexplicably did not object at the point it became clear the prosecutor was going to urge conviction based on the Daniels incident as an alternative to conviction based on the Wallace/Weighill incident. Defense counsel objected to the initial amendment but failed to state a basis for the objection; failed to object to the admission of Daniels’s testimony, the giving of the unanimity instruction or the prosecutor’s closing argument; and failed to demur to the amended information, request a continuance, or move for acquittal on the basis of the constructive amendment. Consequently, respondent urges appellant waived the issue. Appellant in turn contends the waiver doctrine is inapplicable, as the constitutional requirement that a preliminary hearing and magistrate’s finding of probable cause precede any felony prosecution is jurisdictional. (People v. Pitts, supra, 223 Cal.App.3d at p. 903; People v. Bomar, supra, 73 Cal.App. at p. 378; People v. Firestine, supra, 268 Cal.App.2d 533, 536, fn. 3.) “Jurisdictional error is not waived by failure to object earlier.” (Andrus v. Estrada (1995) 39 Cal.App.4th 1030, 1042 [46 Cal.Rptr.2d 300]; see In re Heraclio A. (1996) 42 Cal.App.4th 569, 573 [49 Cal.Rptr.2d 713] [subject matter jurisdiction cannot be conferred by consent, waiver or estoppel]; People v. Blakeman (1959) 170 Cal.App.2d 596, 598 [339 P.2d 202].)

The term “jurisdiction” has many meanings: While in its “most fundamental or strict sense,” it means “an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties,” the term may also refer to the situation where a court that has jurisdiction over the subject matter and parties “has no ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288 [109 P.2d 942, 132 A.L.R. 715].) “Action ‘in excess of jurisdiction’ by a court that has jurisdiction in the ‘fundamental sense’ (i.e., jurisdiction over the subject matter and the parties) is not void, but only voidable.” (Conservatorship of O’Connor (1996) 48 Cal.App.4th 1076, 1088 [56 Cal.Rptr.2d 386], italics omitted.) “The doctrines of waiver and estoppel apply only to voidable acts (i.e., to acts which are in excess of these other kinds of jurisdiction).” (Jovine v. FHP, Inc. (1998) 64 Cal.App.4th 1506, 1527, fn. 26 [76 Cal.Rptr.2d 322], italics in original; Conservatorship of O’Connor, supra, 48 Cal.App.4th at p. 1088.) The case law is consistent in reiterating that a superior court lacks authority to try a defendant for a felony charged by information with an offense not previously subjected to a preliminary hearing. Violation of this limitation on the superior court’s power, however, would constitute action in excess of jurisdiction — waivable error — and not nonwaivable subject matter jurisdiction. (See People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 64 [2 Cal.Rptr.2d 389, 820 P.2d 613] [noting where case “proceeds under a ‘fatally defective’ indictment, ‘if the court had jurisdiction of the cause and the party, its judgment is not void, but only voidable’ ”]; In re Hess (1955) 45 Cal.2d 171, 175 [288 P.2d 5] [conviction of offense not charged in information or necessarily included in charged offense is act “in excess of [the trial court’s] jurisdiction”].) We conclude appellant waived this issue. (See People v. Newlun (1991) 227 Cal.App.3d 1590, 1604 [278 Cal.Rptr. 550] [waiver of due process notice argument where defendant convicted of offense not shown at preliminary hearing].)

This does not end the discussion, however, because appellant further urges his attorney’s failure to further object constituted ineffective assistance of counsel. “The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425 . . . .) To establish constitutionally inadequate representation, the defendant must show that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel’s failings the result would have been more favorable. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218 . . . ; People v. Fosselman [1983)] 33 Cal.3d [572], 584; People v. Pope, supra; see Strickland v. Washington (1984) 466 U.S. 668, 687-696 . . . .)” (People v. Babbitt (1988) 45 Cal.3d 660, 707 [248 Cal.Rptr. 69, 755 P.2d 253].)

There is a “ ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” ’ ” (People v. Bunyard (1988) 45 Cal.3d 1189, 1215 [249 Cal.Rptr. 71, 756 P.2d 795], quoting Strickland v. Washington (1984) 466 U.S. 668, 689 [104 S.Ct. 2052, 2065, 80 L.Ed.2d 674], italics added in Bunyard.) “Where the record shows that the omission or error resulted from an informed tactical choice within the range of reasonable competence . . . the conviction should be affirmed.” (43 Cal.3d at p. 1215.) The determination whether counsel’s performance was deficient “generally must be made with deference to avoid the dual pitfalls of second-guessing counsel’s tactics and chilling vigorous advocacy by tempting counsel ‘to defend himself against a claim of ineffective assistance after trial rather than to defend his client against criminal charges at trial ....’” (In re Cordero (1988) 46 Cal.3d 161, 180 [249 Cal.Rptr. 342, 756 P.2d 1370], quoting People v. Ledesma (1987) 43 Cal.3d 171, 216 [233 Cal.Rptr. 404, 729 P.2d 839].) “However, ‘deferential scrutiny of counsel’s performance is limited in extent and indeed in certain cases may be altogether unjustified. “[D]eference is not abdication” [citation]; it must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions.’ ” (In re Cordero, supra, 46 Cal.3d at p. 180, quoting People v. Ledesma, supra, 43 Cal.3d at p. 217.)

In the present case, defense counsel objected to the amendment of the information without stating a ground for the objection, then requested an Evidence Code section 402 hearing on the relevance of Daniels’s testimony on the ground that the prosecution’s information suggested Daniels was talking about a different gun. The trial court denied the motion after the prosecutor represented there was only one gun in question. Daniels’s testimony was subsequently presented at trial without objection. Assuming that at this point it still appeared Daniels’s testimony was being presented to corroborate the possession described by Wallace and the Weighills, when the prosecutor requested a jury instruction on unanimity it should have been apparent to defense counsel that the jury was to be told it could convict appellant on the basis of the Daniels incident alone. The jury was expressly so informed in the prosecutor’s closing argument. Defense counsel, however, agreed to the jury instructions and did not object to the prosecutor’s argument. Appellant’s suggestion that the initial objection to the amendment of the information and request for a hearing regarding Daniels’s testimony were sufficient to preserve his claim that he was improperly convicted of an offense not shown by the evidence at the preliminary hearing ignores the changed posture of the case during the course of trial. When the initial objection and request were made, it appeared appellant had been charged with, and was being prosecuted for, a single incident of possession of a firearm, witnessed by several different people. By the time the unanimity instruction was requested and closing argument made, it was clear appellant was being prosecuted for either of two separate incidents, one of which was never the subject of the preliminary hearing.

Since appellant could not constitutionally be prosecuted for or convicted of an offense not shown by the evidence at the preliminary hearing, defense counsel should have objected or taken some action to protect appellant’s rights, at least when it became clear the jury was going to be asked to convict on the basis of either the incident shown by the prehminary hearing evidence or the incident not addressed at the preliminary hearing. Given the constitutional mandate discussed above, “ ‘there simply could be no satisfactory explanation’ ” (People v. Ledesma, supra, 43 Cal.3d at p. at p. 218, quoting People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1]) for counsel’s failure to object. Indeed, in his declaration submitted with appellant’s petition for writ of habeas corpus, trial counsel states that he had no tactical reason for failing to make additional objections to the jury being allowed to deliberate and convict on the Daniels incident. Rather, trial counsel states he believed he had preserved the issue for appeal by his in limine motion to exclude the Daniels evidence and opposition to the amendment of the information, believed further objection would have been futile, and with the benefit of hindsight and briefing of appellate counsel, had become aware he “perhaps should have made various objections at the end of the trial to the jury’s deliberating on the Daniels’ incident.” Trial counsel further states that although he expected the prosecution to offer evidence of the Daniels incident, he was surprised by the prosecutor’s closing argument and the jury being allowed to vote on the Daniels incident and was unprepared to respond to these surprising developments.

Had defense counsel objected at the point it became clear the jury was to be asked to convict appellant on the basis of either the Daniels incident or the Wallace/Weighill incident, the trial court could have instructed the jury that the Daniels incident in and of itself could not be the basis of a conviction. Indeed, it follows from our discussion above that the court would have had no alternative but to give such an instruction, to avoid the possibility of appellant being convicted of an offense not shown by the evidence at the preliminary hearing.

Respondent urges, however, that we may not find ineffective assistance of counsel because the trial court’s other rulings demonstrate an objection at this point in the trial would have been futile. (People v. Price (1991) 1 Cal.4th 324, 387 [3 Cal.Rptr.2d 106, 821 P.2d 610]; People v. Weston (1981) 114 Cal.App.3d 764, 780 [170 Cal.Rptr. 856].) According to respondent, as well as the declaration of trial counsel, trial counsel’s belief that further objection would have been futile was borne out by the trial court’s subsequent denial of appellant’s Marsden and new trial motions, in which appellant relied in part on the issue of his having been prosecuted for the offense described by Daniels when no evidence of this offense had been presented at the preliminary hearing.

Appellant does not raise the denial of his new trial motion as a ground for appeal. Given the obvious illegality of prosecuting and convicting appellant of an offense not shown by the evidence at the preliminary hearing, however, it would be difficult not to conclude the trial court abused its discretion in rejecting appellant’s challenges to the jury’s verdict. To excuse counsel’s failure to object because subsequent events showed the trial court would have erroneously overruled the objection would be to falsely exonerate representation that fell below an objectively reasonable standard of conduct and, as will be discussed, prejudiced the defendant. It is one thing to say counsel cannot be faulted for failing to make an objection that would have been futile because the trial court, acting reasonably, would have overruled it. It is quite another to allow the trial court’s error to insulate counsel’s performance from review. While we recognize that defense counsel was put in a difficult position by the prosecution’s end-of-trial change of strategy and the trial court’s apparent acceptance of that change, we cannot find it met an objective standard of reasonableness.

Consideration of the jury’s verdict leads to the conclusion there is a reasonable probability a more favorable result would have been reached if counsel had objected and the court had given the jury a limiting instruction. Appellant was acquitted of the brandishing charge that arose out of the W allace/W eighill incident. There is no apparent basis upon which a rational juror could have determined that Wallace and the Weighills were telling the truth as to appellant’s possession of the firearm but not as to his pointing it at Wallace and the Weighills.¹³ Mrs. Weighill testified that appellant pointed the gun at Wallace and then at the Weighills, telling them not to move; Wallace testified appellant pointed the gun at Weighill’s face in the course of a heated argument and pointed it “to” Wallace when he started to move away from the scene; and Weighill testified at the preliminary hearing that appellant pulled a gun on him when Weighill said they had a problem because appellant had been threatening Weighill’s children, and kept it pointed at Weighill throughout their six- or seven-minute conversation. There can be little question this testimony, if believed, demonstrated the elements of brandishing.¹⁴ Accordingly, the jury’s acquittal on the brandishing charge strongly suggests it did not believe the witnesses to this incident and convicted appellant of possession on the basis of the Daniels incident. This conclusion is bolstered by the fact the prosecution evidence regarding the Wallace/Weighill incident was weak: Aside from factual inconsistencies between the witnesses’ accounts, such as Weighill stating appellant kept his gun pointed at Weighill throughout their encounter and Wallace testifying the gun was out only a small portion of the encounter, the witnesses were angry with appellant because of the earlier incident with their children; Weighill came to the confrontation armed; the witnesses testified Weighill did not pull his gun on appellant, but Weighill told the police on the night of the incident that he had pointed his gun at appellant; Weighill refused to appear to testify at trial; and Wallace testified he could not identify appellant because he had not gotten a good look at his face, but had told the police on the night of the incident that he could identify appellant. During deliberations, the jury requested a re-reading of Daniels’s entire testimony and asked for the date Daniels was interviewed by Capuano. Indeed, the prosecutor, in opposing appellant’s motion to modify the jury verdict, argued that substantial evidence supported the verdict solely by reference to the evidence of the Daniels incident; at the sentencing hearing, the prosecutor acknowledged appellant was convicted on the basis of Daniels’s testimony. It follows that there is at least a reasonable probability appellant would have been acquitted of the possession count as well if the jury had been told the conviction could not be based upon the Daniels incident.

The conviction must be reversed. The petition for writ of habeas corpus is granted.¹⁵

1 All further statutory references are to the Penal Code unless otherwise stated.

2 After a number of Marsden motions were denied and Faretta motions were withdrawn, the trial court granted a Faretta motion on December 27. (People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]; Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562].) At this time, the court also granted appellant’s motions for appointment of a paralegal and an investigator; it subsequently granted appellant’s motions for a partial trial transcript, discovery of a written statement of the taped police interview of Daniels and of records pertaining to prosecution of “Three Strikes” section 12021 cases, and release of juror information. The prosecution refused to comply with the discovery order regarding Three Strikes prosecutions, then later agreed to provide the information as an accommodation to the comt, but the court concluded the information would be of minimal use to the court and appellant was not entitled to it.

3 DanieIs was “pretty sure” these events happened on Sunday rather than Monday but acknowledged if he had taken a day off he could have thought it was a Sunday. He was certain his dropping appellant off and picking him up again occurred on the same day as Wallace and Weighill looking for appellant at Daniels’s house.

4 Weighill’s preliminary hearing testimony was read into the record — as part of the defense case — because the witness was unavailable to testify.

5 On surrebuttal, Keith Brock, who had known appellant for about 15 years, testified that appellant came to his front door in the late evening of January 8, 1996, and woke him from sleeping. Appellant was upset and said “[t]wo guys pulled guns on him.” He asked to stay at Brock’s house; Brock allowed him to sleep on the couch, and went back to bed. Brock did not know whether appellant had been drinking. He did not remember telling Inspector Capuano appellant had been drinking but remembered saying appellant had not been drunk.

Inspector Capuano testified on prosecution surrebuttal that he interviewed Keith Brock on August 8,1996, and tape-recorded the conversation. When asked whether it bothered him that appellant had come to his house saying two men were after him, Brock said, “when [appellant] gets to drinking, no telling how — what kind of stories he comes up with, whether it’s true or not true.” Brock also said he did not see a gun on appellant that night.

6 On rebuttal, Parole Agent David Harrington testified that parolees are directed to speak with the officer of the day if their parole officer is not available and secretaries are trained to refer such calls to the officer of the day. Appellant’s files showed that appellant was instructed to call his parole officer daily with his residence plans. Appellant had contacts with the office on December 6, 14 and 22, 1995. On December 19, a request was made for a “parolee at large warrant”; the warrant issued on or about January 4, 1996.

7 The jury was instructed: “The prosecution has introduced evidence tending to prove that there is more than one act upon which a conviction on Count 1 may be based. The defendant may be found guilty if the proof showed beyond a reasonable doubt that he committed any one or more of such acts. However, in order to return a verdict of guilty to Count 1, all jurors must agree that he committed the same act, or acts. It is not necessary that the particular act agreed upon be stated in your verdict.”

8 Appellant raised the issue of his being prosecuted for an offense not charged in the information or shown by the evidence at the preliminary hearing in his posttrial Marsden (People v. Marsden, supra, 2 Cal.3d 118) motions and motions to modify the jury’s verdict. In her written response to the posttrial motions, the prosecutor stated that the amendment to the information had not changed the offense with which appellant was charged: “There was no ‘change’ to the Information; Defendant was not charged with a separate violation of section 12021(a), for that would have been precluded by section 1009, as that evidence had not been discovered until after the preliminary hearing. Defendant was adequately notified long before trial that there was additional inclupatory [,s7c] evidence showing that he did unlawfully possess a firearm on lanuary 8, 1996; that charge remained the same.” The prosecutor acknowledged that section 12001, subdivision (k), states each weapon shall be charged as a distinct and separate offense but argued “there never was any clear evidence that Weighill and Daniels were testifying about a ‘different’ revolver until the end of trial; Weighill was never certain as to the actual type of weapon Defendant possessed. Out of an abundance of caution, the prosecutor and court elected to instruct the jury on CALJIC 17.01.” In her oral remarks at the hearing on appellant’s posttrial motions, the prosecutor stated that she and defense counsel had notice before trial of Daniels’s testimony; that it was not clear until the end of trial how accurate the Wallace and Weighill descriptions of the firearms were, but that “there is no question that on January 8th the defendant had a firearm.” Portraying the need for the unanimity instruction as based on the fact there were “two different theories” of appellant’s possession of a firearm, the prosecution maintained: “The point is that this jury got the proper instructions. It was properly amended. It did not ever change the charge. All it did was put out there ‘revolver.’ We all had notice of it.” The prosecutor, at this hearing, also expressed her belief that the jury had believed Daniels’s testimony and disbelieved the Wallace/Weighill testimony, as appellant had been acquitted of the latter incident.

9 Contrary to the dissent’s characterization, this opinion does not state or suggest a prosecutor must charge each possession of a separate firearm as a separate offense. The prosecution is limited, however, to prosecuting only offenses shown by the evidence at the preliminary hearing or transactionally related to the offense that formed the basis of the commitment order. (People v. Pitts, supra, 223 Cal.App.3d at p. 903.)

10 Respondent states, in connection with appellant’s argument that he received inadequate notice that he could be convicted based on the Daniels’s incident, that appellant’s argument would “require a new preliminary hearing or dismissal of charges whenever the prosecutor presents trial testimony of witnesses who did not testify at the preliminary hearing or presents trial testimony containing discrepancies.” This statement is absurd. Appellant’s complaint is not that the prosecution presented a new witness but that that new witness described a completely separate incident from that shown by the evidence at the preliminary hearing, and the jury was directed it could base a conviction upon that incident alone.

11 People v. Gear, supra, 19 Cal.App.4th at page 95, discussed the preliminary hearing testimony in that case only to state that the preliminary hearing testimony of a police officer was sufficiently similar to the victim’s testimony at trial to provide the defendant with notice of a charge of a continuous course of sexual abuse. People v. Gordon, supra, 165 Cal.App.3d at page 870, noted the rule that “an information cannot charge offenses not shown by the evidence at the preliminary examination” and discussed the role of the preliminary hearing in giving a defendant notice of the criminal acts against which he or she must defend. In People v. Salvato, supra, 234 Cal.App.3d at page 884, a case involving threats by the defendant to his former wife, the court noted that some of the specific acts described at trial had not been described at the preliminary hearing and concluded the defendant had not been given notice of these acts. While its discussion implicitly assumes that, given adequate notice, the defendant could have been convicted on the basis of such acts, Salvato does not directly address this question.

12 The dissent’s example of a “felon simultaneously in possession of not one but two similar-appearing guns,” who over a period of 12 hours “periodically displays one or the other of these weapons to different witnesses in the same neighborhood” (dis. opn., post, at p. 199) depicts a dramatically different case than the one before us. The dissent’s example demonstrates what is really a continuous crime, with multiple displays of the same weapons in close temporal proximity to each other. While this example serves to illustrate the point that scenarios may be conjured in which it would be difficult to draw the line between discrete offenses and a continuous offense reflected in multiple incidents, the line is not difficult to draw oil the facts of the present case. Here, as has been repeatedly stated, two different sets of witnesses described two discrete events, involving different weapons, which occurred at different times of day, in different locations and under different circumstances. Presentation of evidence of one of the incidents at the preliminary hearing simply could not authorize conviction on the basis of evidence of the other. (See People v. Kellin, supra, 209 Cal.App.2d [conviction reversed where evidence at preliminary hearing showed theft of specified check on specified date but evidence at trial showed theft of additional checks on other dates].)

13 We do not consider the juror affidavits submitted by appellant to demonstrate the basis for the conviction as consideration of such affidavits would violate the rule that no evidence is admissible “concerning the mental processes by which [the verdict] was determined.” (Evid. Code, § 1150.)

14 Section 417, subdivision (a)(2), provides in pertinent part: “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses the same in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than three months.”

15 Our determination that appellant’s conviction must be reversed due to ineffective assistance of counsel makes it unnecessary for us to reach appellant’s alternate arguments seeking reversal of the conviction. We note, however, that respondent has conceded the court should have imposed only five enhancements under section 667.5, as appellant served only five prior separate prison terms within the meaning of that statute. Respondent has also conceded appellant was entitled to three additional days of presentence credit.