People v. Silveria CA1/1

Filed 10/23/26 P. v. Silveria CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, A171433 v. RONALD SILVERIA, (City & County of San Francisco Super. Ct. No. CRI-22014555, Defendant and Appellant. CRI-22014628) A jury convicted Ronald Silveria of first degree robbery (Pen. Code, § 211)1 and other offenses. He raises two related issues on appeal. First, he contends that in not holding him to answer on a robbery count at the preliminary hearing, the magistrate made a factual finding that precluded the prosecution from recharging the offense. We conclude the magistrate made only a legal conclusion regarding the sufficiency of the evidence, which did not preclude recharging the offense. We further conclude sufficient evidence was adduced at the preliminary hearing for the robbery count to survive a subsequent motion to dismiss. 1 All further statutory references are to the Penal Code unless otherwise indicated. 1  Second, Silveria contends the trial court violated his due process right to notice by allowing the prosecution to elevate the robbery count from second degree to first degree. We conclude the amendment was proper in light of the evidence presented at the preliminary hearing and it did not prejudice Silveria’s ability to present a defense. BACKGROUND2 The prosecution filed a complaint charging Silveria with numerous felony counts: second degree robbery (§ 211 [count I]); first degree robbery at ATM (§ 211 [count II]); kidnapping for ransom (§ 209, subd. (a) [count III]; false imprisonment (§ 236 [count IV]; assault with a deadly weapon – not a firearm (§ 245, subd. (a)(1) [count V]; two counts of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4) [counts VI & VII]); identity theft (§ 530.5, subd. (a) [count VIII]); injuring or tapping telegraph, telephone or cable TV line (§ 591 [count IX]); kidnapping (§ 207, subd. (a) [count X]); and one misdemeanor count of injuring a wireless communication device (§ 591.5 [count XI]). At the conclusion of the preliminary hearing, the magistrate held Silveria to answer on the following felony counts: first degree robbery; false imprisonment; assault with a deadly weapon – not a firearm; identity theft; injuring or tapping telegraph, telephone or cable TV line; and kidnapping. The magistrate held Silveria to answer on two misdemeanor counts : assault with force likely to cause great bodily injury (count VI; reduced pursuant to § 17, subd. (b)); and injuring a wireless communication device. The magistrate dismissed the following felony counts: second degree robbery, 2 We provide only a brief procedural summary here. As necessary, we provide additional details in the Discussion section regarding the issues raised on appeal. 2 kidnapping for ransom, and assault with force likely to cause great bodily injury (count VII). After the prosecution filed an information realleging the second degree robbery count and various other counts, Silveria moved to dismiss all of the charges under section 995. The court denied the motion as to all counts. Silveria did not seek writ review and the matter proceeded to trial. Following the close of the People’s case-in-chief—before the defense rested—during a conference on proposed jury instructions, the People moved to elevate the second degree robbery (count I) to first degree robbery to conform to proof. After hearing arguments from both sides, the court granted the amendment and instructed the jury with CALCRIM No. 1602, which advised the jury, in part, that to find Silveria guilty of first degree robbery in count I, the People had the burden of proving beyond a reasonable doubt the robbery was committed in an inhabited part of a building. The jury convicted Silveria of the following crimes: first degree robbery ([hotel]), false imprisonment by violence or menace, simple assault (as a lesser included offense of assault with a deadly weapon – not a firearm), identity theft, and false imprisonment (as a lesser included offense of the kidnapping count). DISCUSSION I. Realleging the Dismissed Second Degree Robbery Count A. Additional Background As noted, the prosecution filed a felony complaint charging Silveria with, among other things, one count of second degree robbery (count I) and one count of first degree robbery at an ATM (count II). J.C. was the sole prosecution witness at the preliminary hearing. After connecting through an online dating “hook up app”, J.C. and Silveria met up 3 in Newark. They then drove in separate cars to a motel in San Francisco. Silveria waited in his car while J.C. checked in. After checking in, J.C. met up with Silveria in the parking lot. Once in the room, J.C. and Silveria talked for a few hours before they took off their clothes and “started getting into it.” “[T]hen all of a sudden, [Silveria] started talking about money.” J.C. got off the bed to grab his wallet and keys, which were on the nightstand. J.C. wanted to “make sure” his wallet was secure before Silveria could “grab it or whatnot”. As J.C. turned toward the nightstand, Silveria “punched” him in the face, causing him to stumble and almost black out. As J.C. tried to pull himself together, Silveria hit him again. After the second blow, J.C. turned around to face Silveria, who had a gun in his hand. Silveria pointed the gun at J.C., told him to get on the bed, and grabbed J.C.’s phone. Afraid that Silveria “would just pull the trigger” J.C., who was still naked, complied and got on the bed. J.C. was laying face down on the bed as Silveria used an extension cord to tie his hands to the headboard. While J.C., was tied up on the bed, Silveria had J.C.’s wallet and was looking through J.C.’s belongings, including his phone and iPad. Silveria demanded passwords for J.C.’s phone. When J.C. refused to provide the information, Silveria used the butt of an apparent firearm to strike J.C. in the head and coerce him to provide the passwords. J.C. felt compelled to give Silveria the password for his phone. After unlocking J.C.’s phone, Silveria demanded the passwords for various cash apps. Silveria then hit J.C. J.C. once again felt compelled to provide the passwords. Silveria unsuccessfully tried three times to send himself $500 from J.C.’s apps. As J.C. remained tied up, face down on the bed, Silveria went through J.C.’s belongings, including his iPad; J.C. also “had to give him the password” 4 to his iPad. Silveria was in possession of J.C.’s wallet and car keys. J.C. explained that he had “a lot of stuff” in the trunk of his car. J.C. did not want Silveria to drive off with his car, so J.C. “kind of talked . . . him into” giving the keys back in exchange for money. Silveria agreed and said he would drive to an ATM. Before leaving the room together, Silveria put the gun in the waistband of his pants. Stills from the surveillance video at the hotel showed a distressed J.C. in the stairwell, holding one bag, while Silveria was behind him with another bag; Silveria had his face covered.3 J.C. put his bags in the trunk of Silveria’s car. J.C. rode as a passenger to a nearby ATM. J.C. testified that he was not willingly riding in Silveria’s car, explaining that he “just wanted to find an ATM . . . as quickly as possible” so that he could give Silveria the money and get his car keys back. At the ATM, J.C. withdrew $400. J.C. walked back to the car and handed Silveria the money through the window and asked for his car keys. Silveria did not give back the keys. Instead, he “made” J.C. get back in the car. When asked how Silveria made him get in the car, J.C. explained, “Well, he did have a gun, so I just had to listen to what he was saying.” Silveria then drove onto the Bay Bridge. At one point, Silveria told J.C. he had done this type of thing before, where he would . . . find a gay person and get money out of them. He said normally he would get more money out of a person, but he wasn’t able to get anything because, obviously, I didn’t have much money.” Silveria also asked J.C. if he had ever jumped out of a 3 The video surveillance footage showing J.C. and Silveria entering and leaving the motel was admitted at the preliminary hearing; it is not included in the record on appeal. 5 moving car. At one point, Silveria tried to force J.C. out of the car on the Bay Bridge. Eventually, Silveria stopped the car across the bay in Oakland or Emeryville. When J.C. asked for his keys back, Silveria threw them out of the window. J.C. said he got out of the car “really quickly,” all the while thinking that Silveria could try to shoot him. J.C. grabbed his keys and ran away. Silveria then drove away with J.C.’s belongings. At the conclusion of J.C.’s testimony, the prosecutor asked for a holding order on the robbery in count I. He argued there was “competent evidence that [J.C.] went to the hotel with [Silveria], was held at gunpoint, and that he had various items, such as his wallet, his phone, and iPad, and other sundry items that were taken from him.” The magistrate asked, “I understand there were certainly items in the vehicle that were [J.C.]’s. Are you basing this charge on those items, or is it your belief that the testimony established that [Silveria] took other items, apart from what were in the bags left in the back of [Silveria’s] vehicle . . . ?” The prosecutor responded, “[T]he evidence establishes that the victim . . . went into the room with a couple bags, including items like [an] iPad and other sundry items. The testimony is, then, that everything was taken out of the room and placed into [Silveria’s] trunk, and that he did not get any of those items back. That includes his wallet, phone, iPad, all of that.” The magistrate asked the prosecutor: “[W]hen do you contend this second degree robbery was completed, at least all of the elements established? Understanding there may be vagaries as to how far the asportation, if you will, occurred, but at least the initial satisfaction of all elements of this 211, when do you think that was completed?” The prosecutor stated, “I think that everything is completed when [J.C.] is tied up in the 6 room, and that [Silveria] is going through all of the items in the room, using and manipulating them. But I think that the 211 is . . . the evidence of . . . intending to permanently deprive really carries all the way through to driving away in the car with all of the items in the car. So, you know, there’s never an intention to give any of it back or do it for a limited amount of time. [¶] So I think it starts with taking possession . . . . Because the crime was ongoing, it doesn’t actually end until he drives away with all of the stuff . . . . [¶] I think that part of this relevance is that once this gun is in play, [J.C.]’s actions after that point are in fear that he’s just trying to navigate the situation. He’s not doing anything willfully at that point.” Defense counsel countered the evidence did not support the charge. He argued: “I asked [J.C.], did you ask for your stuff back? He didn’t. There was no evidence presented that his stuff wouldn’t have been gotten back.” The magistrate asked, “Isn’t the 211 completed when [Silveria] takes [J.C.’s] keys and doesn’t give the keys back until [Silveria] gets the cash and throws [the keys] out the window?” Defense counsel maintained there was no evidence Silveria intended to permanently deprive J.C. of his property. The magistrate dismissed count I for lack of probable cause, stating: “I did not hear sufficient evidence or really any evidence that [Silveria] intended to permanently deprive [J.C.] of the items that were in the bags put in the back of his car. I think if that were the case there would have at least been some testimony from [J.C.] where he was instructed or forced to put the bags there. Instead the evidence was simply lacking on that issue. So I thought about the keys, given that we discussed that. I think the law . . . does not actually require permanent deprivation. Temporary deprivation can be sufficient, but it must be enough to effectively deprive the person of the benefit of the item that was taken and . . . I don’t think that depriving [J.C.] 7 of his keys for that period of time while certainly was inconvenient for him and disruptive and maybe even terrifying in light of everything else, it was not the type of deprivation that I think is contemplated by a 211.” After the prosecution filed an information realleging the dismissed second degree robbery count, Silveria moved to dismiss the charge under section 995. At the hearing on Silveria’s section 995 motion, the court detailed the facts adduced at the preliminary hearing, stating in relevant part: “So when you watch the [surveillance] video, when they leave, you see them in the hallway leaving. You see the defendant carrying some bags and the victim carrying some bags because that’s an issue here regarding property— stolen—whether or not there was a robbery. Then you watch the video when they are in the parking lot. You can see that the victim is in front of the defendant, but the defendant has—looks like, to the Court, has his hand in his waist area and is, also, carrying a bag. And you see the defendant looking around, and then they get into the car” The parties clarified that the video showed that J.C. was “trailing” behind Silveria in the parking lot. As to Silveria’s argument that “there was no intent to permanently deprive [J.C.] of his property,” the trial court noted the magistrate had “stated that [J.C.] was the only one carrying bags. And [Silveria] wasn’t, but that’s not correct according to the video. . . .” The prosecutor agreed that J.C. and Silveria were both carrying bags. After further argument, the trial court found probable cause to sustain the second degree robbery charge in count I, rejecting the reasoning of the magistrate. 8 B. Relevant Legal Principles “A magistrate’s function at a felony preliminary hearing is to determine whether there is ‘sufficient cause’ to believe [the] defendant guilty of the charged offense. (§§ 871, 872, subd. (a).) ‘Sufficient cause’ means ‘ “reasonable and probable cause” ’ or ‘a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.’ ” (People v. Abelino (2021) 62 Cal.App.5th 563, 573 (Abelino).) “ ‘Within the framework of [the magistrate’s] limited role, . . . the magistrate may weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses.’ ” (People v. Slaughter (1984) 35 Cal.3d 629, 637.) But “the magistrate is not a trier of fact. [The magistrate] does not decide whether [the] defendant committed the crime, but only whether there is ‘ “some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.” ’ ” (Ibid.) When the magistrate holds the defendant to answer on one offense but dismisses another, section 739 authorizes the prosecution to recharge the dismissed offense in an information if the evidence at the preliminary hearing showed the offense was committed and arose out of the same transaction as the related offense. (§ 739; see Pizano v. Superior Court of Tulare County (1978) 21 Cal.3d 128, 133 (Pizano).) If the motion is granted, the defendant may file a section 995 motion to dismiss the charges. On appeal, we disregard the trial court’s ruling and review the magistrate’s ruling. (Abelino, supra, 62 Cal.App.5th at p. 574.) The standard we use to review the magistrate’s ruling depends on whether the ruling turned on a factual or legal determination. “In the context of dismissal of charges at a preliminary hearing, a court makes a 9 factual finding when, after resolving evidentiary disputes and/or assessing witnesses’ credibility, it determines there is no evidentiary support for one or more elements of a charge. Conversely, a court makes a legal conclusion when it accepts the prosecution’s evidence, but determines there is insufficient evidentiary support for one or more elements of a charge.” (People v. Rowe (2014) 225 Cal.App.4th 310, 318 (Rowe), italics added.) We review factual findings for substantial evidence and legal conclusions de novo. (People v. Slaughter, supra, 35 Cal.3d at p. 638.) C. Analysis Silveria argues his due process rights were violated by the recharging of the robbery alleged in count I because the magistrate discharged that count at the preliminary hearing based on “fatal factual findings.” Before addressing the type of finding made by the magistrate, it is necessary to set forth Silveria’s burden on appeal. Where, as here, a defendant does not seek pretrial writ relief of the ruling denying a section 995 motion, he “may still seek review on appeal following the judgment, although the defendant must establish the error was prejudicial.” (People v. Mena (2012) 54 Cal.4th 146, 156, citing People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.) Silveria fails to acknowledge this well-established rule. Instead, without citing any applicable authority, he asserts “[i]t 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.” Not so. Once a defendant goes to trial, “[i]rregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of 10 a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.” (People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) To the extent Silveria appears to suggest the purported failure of proof at the preliminary hearing was a fundamental jurisdictional failing that rendered his subsequent trial unfair, he is mistaken. Established case law “ ‘hold[s] that insufficiency of evidence . . . at the preliminary examination is jurisdictional in the special procedural sense that the ruling of the trial court may be reviewed by writ of prohibition under section 999a of the Penal Code, but the defect is not jurisdictional in the fundamental sense because it is subject to waiver.’ ” (People v. Hampton (1981) 116 Cal.App.3d 193, 197.) Thus, “even an erroneous denial of a section 995 motion justifies reversal of a judgment of conviction only when a defendant is able to [show] prejudice at trial flowing from the purportedly inadequate evidentiary showing at the preliminary hearing.” (People v. Crittenden (1994) 9 Cal.4th 83, 136–137.) Silveria’s “claim of insufficient evidence before the magistrate is not such specie of error that affects the jurisdiction of the superior court in the fundamental sense of legal power to hear and determine the cause.” (People v. Hampton, supra, 116 Cal.App.3d at p. 199.) Silveria makes no attempt to demonstrate that he was prejudiced by the allegedly insufficient evidence of robbery presented at the preliminary hearing. Indeed, he does not argue on appeal that the evidence presented at trial (which was the same as presented at the preliminary hearing) was insufficient as a matter of law to prove his robbery conviction. Rather, Silveria contends the alleged failure of proof at the preliminary hearing violated his due process right to notice of the actual offense being prosecuted; the record belies his contention. Silveria had notice of the charges against 11 him when the prosecution filed the information under section 739 and again when the superior court denied the motion to dismiss under section 995. Even overlooking the foregoing rules of law compelling affirmance of the judgment and looking to the merits of Silveria’s claims on appeal, he still fares no better. “[D]etermining whether the magistrate made a prohibitive factual finding is not always clear-cut.” (Abelino, supra, 62 Cal.App.5th at p. 575; see People v. Superior Court (Valenzuela) (2021) 73 Cal.App.5th 485, 497 [distinction does not depend on “ ‘ “magic words” ’ ”]; People v. Superior Court (Day) (1985) 174 Cal.App.3d 1008, 1015 [distinction “is clear enough in the abstract, but has posed some difficulty in its practical implementation”].) But as discussed, a magistrate makes a factual finding when it determines there is no evidentiary support for one or more elements of a charge after resolving evidentiary disputes or assessing witnesses’ credibility. (Rowe, supra, 225 Cal.App.4th at p. 318.) The magistrate here neither resolved evidentiary disputes nor assessed the credibility of witnesses. Rather, the magistrate’s assessment of the evidence was a quintessentially legal determination regarding the sufficiency of the evidence. (Pizano, supra, 21 Cal.3d at p. 133; Rowe, supra, 225 Cal.App.4th at p. 318.) This situation is unlike Jones v. Superior Court (1971) 4 Cal.3d 660, where the prosecution was barred from refiling rape, oral copulation, and sodomy charges after “the magistrate found, as a matter of fact, that [the alleged victim] consented to intercourse and that no acts of oral copulation or sodomy occurred . . . .” (Id. at p. 666, italics added.) That is, the magistrate did not find as a matter of fact that Silveria did not tie up J.C., threaten him, take his wallet and keys in the hotel room, then later drive off with J.C.’s belongings. Rather, the magistrate accepted as a matter of fact that Silveria 12 had done so, but concluded as a matter of law that such conduct was legally insufficient to constitute the type of deprivation required by section 211. “Robbery is defined as the taking of personal property of some value, however slight, from a person or the person’s immediate presence by means of force or fear, with the intent to permanently deprive the person of the property.” (People v. Marshall (1997) 15 Cal.4th 1, 34; see § 211.) The evidence from the preliminary hearing showed Silveria took J.C.’s cellphone at gunpoint, rummaged through J.C.’s bags, and took J.C.’s wallet and car keys. Silveria carried at least one of J.C.’s bags to Silveria’s car and placed them there. Silveria initially refused to return J.C.’s car keys. He later threw the car keys out of the window and took off with the rest of J.C.’s belongings in the car. Here, a jury could—and did—reasonably conclude that, Silveria used force and fear to take J.C.’s property with the intent to permanently deprive J.C. of his property. Accordingly, the trial court did not err by denying Silveria’s section 995 motion, allowing the prosecution to reallege and pursue the once-dismissed robbery count. II. Elevating Second Degree Robbery to First Degree Silveria next contends his due process right to notice was violated when the trial court allowed the prosecution to elevate the robbery charge in count I from second degree to first degree. A. Additional Background The information alleged Silveria committed second degree robbery of “wallet, phone, iPad, [and] other miscellaneous property.” Silveria’s trial began with jury selection on April 4, 2024, and the presentation of evidence commenced on April 9. On April 17, during the conference on jury instruction, the court suggested adding some language to CALCRIM No. 13 1600, the standard robbery instruction, to clarify to the jury “what the People are relying on, factually, for [the robberies charged in] Count [I] and Count [II].” Defense counsel objected, stating in part, “[T]here was an election made, and it was made clear at the preliminary hearing. . . . [I]f I had known he was going for the first, I would have asked different questions.” The court stated it “believe[d] there [was] evidence in the case” that Silveria took J.C.’s personal property while in the motel. Later that day, the court and parties again discussed the robbery instructions. The court stated it had modified CALCRIM No. 1600 “to add the language of the facts that the People are relying on.” Defense counsel objected, stating those facts were not “shown at the preliminary hearing.” The prosecutor clarified, “The magistrate did not hold on that count. [The] People put it back on the Information. A 995 was done by the defense, and that judge did hold on that order . . . [T]his is the theory the People are relying on.” The court said it would provide the instruction as indicated. The court and parties then discussed CALCRIM No. 1602 on the degrees of robbery. The court noted the prosecution was seeking to elevate the robbery in count I from second degree to first degree, which the court was “inclined” to allow, over defense counsel’s objection. At this point, the defense had not yet rested. After hearing further argument, the trial court ruled, “I’m inclined to let the People conform to proof here. And proof is . . . what it is, a jury can decide whether the robbery happened in the hotel room or not. But if it happened there, I believe it’s robbery in the first-degree, but I’ll leave it to the jury.” The trial court later instructed the jury with CALCRIM Nos. 14 1600 and 1602 on robbery. As to count I, the court instructed: “The People alleged in Count [I] that personal property was taken from [J.C.] while in the motel room.” The jury was also instructed on how to distinguish between first and second degree robbery: “To prove that the defendant is guilty of first-degree robbery” in count I, “the People must prove that . . . the robbery was committed in an inhabited part of a building. A part of a building is inhabited if someone lives there and either is present or has left but intends to return.” During closing argument, the prosecutor told the jury that the robbery in count I concerned J.C.’s “personal items that were in the motel room, taken out, placed in [Silveria’s] trunk, and then driven away with by [Silveria]. [¶] So the items that was [sic] taken that did not belong to [Silveria]: Wallet, iPad, phone, other items in the bag.” B. Relevant Legal Principles Section 1009 authorizes the trial court to “permit an amendment of an . . . information . . . for any defect or insufficiency, at any stage of the proceedings . . . . The defendant shall be required to plead to such amendment or amended pleading forthwith . . . unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted.” (§ 1009.) However, an information may not be amended “so as to charge an offense not shown by the evidence taken at the preliminary examination.” (Ibid.) The trial court has broad discretion to grant or deny leave to amend. (People v. Birks (1998) 19 Cal.4th 108, 129.) We review the court’s decision to allow an amendment to the information for abuse of discretion. (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1581.) 15  “The ‘preeminent’ due process principle is that one accused of a crime must be ‘informed of the nature and cause of the accusation.’ (U.S. Const., Amend. VI.) Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.” (People v. Jones (1990) 51 Cal.3d 294, 317; People v. Graff (2009) 170 Cal.App.4th 345, 360 (Graff).) California courts have interpreted section 1009 as being “subject to two limitations: (1) An information cannot be amended so as to charge an offense not shown by the evidence taken at the preliminary examination; and (2) if the substantial rights of the defendant would otherwise be prejudiced, a reasonable postponement of any pending proceeding may be granted.” (People v. Flowers (1971) 14 Cal.App.3d 1017, 1020 (Flowers); see People v. Goolsby (2015) 62 Cal.4th 360, 367–368 (Goolsby).) But “a defendant’s due process rights are not prejudiced by amendment of the information, and the trial court may permit amendment of the accusatory pleading ‘at any stage of the proceeding, up to and including the close of trial,’ so long as defendant’s substantial rights are not prejudiced.” (People v. Fernandez (2013) 216 Cal.App.4th 540, 554 (Fernandez), quoting Graff, supra, 170 Cal.App.4th at p. 361; see also Flowers, supra, 14 Cal.App.3d at pp. 1020–1021 [section 1009 preserves a defendant’s “substantial right to a trial on a charge of which he had due notice”].) Indeed, it is well established that section 1009 “does not violate a defendant’s constitutional rights.” (People v. Tallman (1945) 27 Cal.2d 209, 213; Flowers, supra, 14 Cal.App.3d at p. 1020; People v. Villagren (1980) 106 Cal.App.3d 720, 724.) “Under modern pleading procedures, notice of the particular circumstances of an alleged crime is provided by the evidence 16 presented to the committing magistrate at the preliminary examination, not by a factually detailed information.” (People v. Jennings (1991) 53 Cal.3d 334, 358.) Thus, appellate courts have affirmed convictions obtained after a charging document is amended to conform to proof at the close of the prosecution’s case (People v. Wimberly (1992) 5 Cal.App.4th 773, 794–795), and even during closing argument (People v. Witt (1975) 53 Cal.App.3d 154, 165; see also Goolsby, supra, 62 Cal.4th at p. 368 [where “there is no prejudice, an amendment may be granted ‘up to and including the close of the trial’ ”]). C. Analysis Silveria argues the late amendment of the information to include a charge of first degree robbery violated his rights to fair notice and due process because it prevented trial counsel from preparing a defense with full knowledge of the charges. For example, defense counsel “would have asked different questions had she known that the offense in count [I] would be first- degree robbery.” Silveria fails to show the trial court abused its discretion in allowing amendment of the information. Silveria was on notice that the nature and cause of the accusations against him involved his conduct at the motel, which included punching J.C., pointing what appeared to be a real gun at him, tying him to the bed, then taking his wallet and keys, and going through his belongings, which included his phone and iPad. Whether Silveria took J.C.’s items, and where it occurred, was therefore already at issue, and his counsel had the full opportunity to explore this during the trial. Therefore, the late addition of the alternate theory for count I did not prevent Silveria from preparing and presenting a defense to the underlying fact that he took J.C.’s belongings by force at the motel. We are not convinced that being aware of 17 the first degree charges would have materially altered defense counsel’s strategy such that Silveria’s due process right was violated under these circumstances. And we note that trial counsel did not request an opportunity to recall any witness to present additional evidence in response to the proposed amendment; trial counsel also did not seek a continuance. Silveria also argues the evidence presented at the preliminary hearing was insufficient to establish, to a reasonable probability, that he committed first degree robbery because “[w]hether or not the motel room in this case was ‘an inhabited dwelling house’ as required for first-degree robbery (§ 213(a)(1)) is subject to dispute.” This argument, however, misses the point. We have already explained that the evidence adduced at the preliminary hearing, specifically Silveria’s conduct at the motel—which included hitting, threatening, and tying up J.C. while taking his personal belongings—was sufficient to put Silveria on notice of his potential criminal liability for first degree robbery. Whether the motel room was inhabited or not was a factual issue for the prosecution to prove at trial. 4 (See People v. Burkett (2013) 220 Cal.App.4th 572, 582.) Amendment of the information did not require a resolution of this factual issue. To hold otherwise would usurp the role of the fact finder and would defeat the purpose of allowing amendment of the information under section 1009. DISPOSITION The judgment is affirmed. 4 Equally misplaced is Silveria’s contention that a question from the jury—asking whether count I was limited to the motel room or if it included Silvera’s subsequent conduct—indicated the jury was struggling with the location of the robbery. This is precisely the type of factual question that the jury was required to—and did—resolve. 18  _________________________ LANGHORNE WILSON, J. WE CONCUR: _________________________ HUMES, P. J. _________________________ SMILEY, J. People v. Silveria / A171433 19