Cole

This is a consolidated appeal from judgments rendered after two jury trials at which defendant, Dana Xavier Cole (hereafter appellant), was found guilty of several serious crimes charged in three informations. These convictions involve two separate incidents—a kidnap and rapes in January and several burglaries, assault and attempted kidnaping in September.

I

The first trial involved those offenses arising out of the later September incident detailed in information Nos. CR 9922 and CR 9924, which charged appellant with burglary, assault with a deadly weapon, attempted kidnaping and use of a deadly weapon in the commission of a felony.

On September 22, 1983, at approximately 5:30 a.m., appellant burglarized the Stoffers’ house; his palm print was found on the kitchen windowsill, and a watch stolen from the Stoffers’ house was later found in his possession. Appellant later admitted to two strangers the burglarizing of the Stoffers’ residence and stealing a watch.

About an hour later appellant walked into the bedroom of Angela Schaper, age 17, and put a knife to her neck. Miss Schaper positively identified appellant as her assailant. Appellant held the knife to Miss…

I respectfully dissent. Reviewing the reporter’s transcript, it appears at page one that the prosecution without objection amended information No. Cr. 9924 prior to selection of the jury. Count II was dismissed. Count IV, alleging that appellant kidnaped Angela Schaper (Pen. Code, § 207), was amended to allege that appellant did “. . . forcibly attempt to steal, take . . . Angela Schaper, in the County of Monterey, State of California, and did take the said Angela Schafer into another part of said Monterey County,” a violation of Penal Code sections 664, 207.

On page 76 of the transcript it appears that the clerk read information No. Cr. 9924, including count IV as amended, to the trial jury immediately prior to the prosecution’s opening statement. As far as I am able to determine upon review of the record, this is the only instance during the entire trial wherein the jury heard the phrase “into another part of the [same or] said Monterey County.” Neither counsel in closing summation mentioned the phrase or adequately explained, in my opinion, its factual/legal significance in light of the evidence. 2 The court’s instructions in relevant part pass muster in light of defense…

[Opinion certified for partial publication. [*] ]

OPINION

ANDERSON, J. [*]

This is a consolidated appeal from judgments rendered after two jury trials at which defendant, Dana Xavier Cole (hereafter appellant), was found guilty of several serious crimes charged in three informations. These convictions involve two separate incidents — a kidnap and rapes in January and several burglaries, assault and attempted kidnaping in September.

The first trial involved those offenses arising out of the later September incident detailed in information Nos. CR 9922 and CR 9924, which charged appellant with burglary, assault with a deadly weapon, attempted kidnaping and use of a deadly weapon in the commission of a felony.

On September 22, 1983, at approximately 5:30 a.m., appellant burglarized the Stoffers' house; his palm print was found on the kitchen windowsill, and a watch stolen from the Stoffers' house was later found in his possession. Appellant later admitted to two strangers the burglarizing of the Stoffers' residence and stealing a watch.

About an hour later appellant walked into the bedroom of Angela Schaper, age 17, and put a knife to her neck. Miss Schaper positively…